Bargaining about Futility

Miles Steven , “Interpersonal Issues in the Wanglie Case,” Kennedy Institute of Ethics Journal, 2 (1992): 61–72.

Helga Wanglie was an eighty-seven-year-old patient in a persistent vegetative state; she had been active in right-to-life activities. Her husband insisted that she remain on a ventilator, and Hennepin County Medical Center asked a probate court for a determination as to whether an independent conservator could be appointed to replace her husband. The court declined to grant an independent conservator review of the treatment (In re Conservatorship of Helga M. Wanglie, No. PX-91-283 (P. Ct. Hennepin County, Minn. June 28, 1991)).

Baby K , an anencephalic infant named Stephanie Keene, was born in October 1992 in northern Virginia. Fairfax Hospital requested a declaratory judgment from the federal court of the Eastern District of Virginia that withholding ventilator treatment from an anencephalic infant would not violate state or federal law. The court found that refusal would violate the federal Emergency Medical Treatment and Active Labor Act (EMTALA), and the First and Fourteenth Amendments of the U.S. Constitution. The case was appealed to the Fourth Circuit Court of Appeals, which found that withholding emergency ventilator support would violate EMTALA. The U.S. Supreme Court denied certiorari. Stephanie Keene died in April 1995 (In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993); and In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 U.S. 91 (1994)).

Paris John , “Beyond Autonomy—Physicians' Refusal to Use Life-Prolonging Extracorporeal Membrane Oxygenation,” N. Engl. J. Med., 329 (1993): 354–57.

Koch Kathryn A. Meyers Bruce W. Sandroni Stephen , “Analysis of Power in Medical Decision-Making: An Argument for Physician Autonomy,” Law, Medicine & Health Care, 20 (1992): 320–26.

Mnookin R. Kornhauser L. , “Bargaining in the Shadow of the Law: The Case of Divorce,” Yale Law Journal, 88 (1979): 950–97. The concepts of bargaining endowments and bargaining power have become part of the field of dispute resolution.

I am grateful to Ellen Waldman for suggesting to me the relevance of Mnookin and Kornhauser's work for clinical medical ethics, and for her comments on an earlier draft of this paper.

Medical futility cases have important medical, financial, and religious dimensions that have been well explored in the literature. Commentators are increasingly analyzing the power dimensions of the issue, including its legal aspects. Spielman compares bargaining power to the view of physicians' power forwarded in Brody (see Spielman Bethany , “Futility and Bargaining Power,” Journal of Clinical Ethics, forthcoming; and Brody Howard , The Healer's Power (New Haven: Yale University Press, 1992)). See also Koch Meyers Sandroni , supra note 5; and Jecker Nancy S. Schneiderman Lawrence J. , “Judging Medical Futility: An Ethical Analysis of Medical Power and Responsibility,” Cambridge Quarterly of Healthcare Ethics, 4 (1995): 23–35. Legal aspects of the issue are explored insightfully in: Kapp Marshall B. , “Futile Medical Treatment: A Review of the Ethical Arguments and Legal Holdings,” Journal of General Internal Medicine, 9 (1994): 170–77; Cranford Ronald E. , “Medical Futility: Transforming a Clinical Concept into Legal and Social Policies,” Journal of the American Geriatrics Society, 42 (1994): 894–98; and Krebs-Markrich Julia Coffey John E. Korjus Jennifer L.W. , “EMTALA: The Next Generation,” The Health Lawyer, 8, no. 2 (1995): 1, 3–7.

Ryan Nguyen was born prematurely, with an intestinal blockage, possible brain damage, and kidney failure, at Sacred Heart Medical Center in Spokane, Washington in late 1994. After physicians recommended that his life support be withdrawn, the Nguyens obtained a court order to force the hospital to continue treatment until the infant was transferred. The Medical Center filed a child abuse complaint against the infant's parents for insisting on treatment the physicians believed to be futile. The infant was transferred to Legacy Emanuel Hospital in Portland, Oregon, and the child abuse complaint was dropped. He was discharged home in March 1995, and was not expected to need a kidney transplant as an infant. The infant's parents subsequently filed suit against Sacred Heart Medical Center. See Capron Alexander Morgan , “Baby Ryan and Virtual Futility,” Hastings Center Report, 25, no. 2 (1995): 20–21; Glamser Deeann , “‘Miracle Baby’ Puts New Life in Ethics Debate,” USA Today, Jan. 16, 1995, at 7A; Kolata Gina , “Battle Over a Baby's Future Raises Hard Ethical Issues,” New York Times, Dec. 27, 1994, at A1; and personal communication, Johnny Cox, May 10, 1995.

Scott Horn suffered a massive brain hemorrhage and was admitted to Highline Community Hospital's Rehabilitation Center in Seattle in 1992. Horn's parents, who served as his guardians, decided life support should be withdrawn; Highline's ethics committee concurred. Nutrition and hydration were discontinued in late 1993. Horn's ex-wife, Karen Kaemerle, believed that he had been communicating, through eye-blinks, that he wanted to live. She obtained an emergency order requiring the hospital to provide artificial nutrition and hydration. Eventually, a complex guardianship agreement was worked out between Kaemerle and the Horns, but Kaemerle also filed a medical malpractice suit against physicians at the hospital. A King County jury found for Highline physicians on March 31, 1995. See Ostrom Carol , “Eye Motion is Key in Case Over Life-Support Cut—His Ex-Wife Claims Patient ‘Left to Die’,” Seattle Times, Mar. 15, 1995, at B1; and Ostrom Carol , “Life Death, and the Blink of An Eye—Loved Ones Battle Over Whether to Let Man Die, and If He is Able to Have a Say,” Seattle Times, Aug. 15, 1994, at A1.

Catherine Gilgunn, a seventy-one-year-old patient at Massachusetts General Hospital, had irreversible neurological damage and multiple system failure, and wanted to have everything done to sustain her life, according to her daughter, Joan Gilgunn. In 1989, physicians issued a do-not-resuscitate order and discontinued ventilator support over Joan Gilgunn's objections. Catherine Gilgunn died shortly thereafter. In a suit brought by Joan Gilgunn against the hospital, the chairman of the ethics committee, and Catherine Gilgunn's physicians, a jury in the Superior Court of Massachusetts decided that the patient would have wanted treatment but that treatment would have been futile. See Kolata Gina , “Court Ruling Limits Rights of Patients,” New York Times, Apr. 22, 1995, at 1.

Van McCrary S. , “Treatment Decisions for Terminally Ill Patients: Physicians' Legal Defensiveness and Knowledge of Medical Law,” Law, Medicine & Health Care, 20 (1992): 364–76.

See supra note 4.

Recognition of Brain Death Under Certain Circumstances, Fla. Stat. 382.009 (1993).

Merzer N. , “A Matter of Life or Death: Sarasota Case Sets Off Debate,” Ft. Meyers News-Press, Feb. 27, 1994, at A17; and New York Times News Service, “Parents Will Get Custody of Brain-Dead Girl,” Chicago Tribune, Feb. 19, 1994, at 1.

For insights into families' concerns in futility cases, Anderson Betsy Hall Barbara , “Parents' Perceptions of Decision Making for Children,” Journal of Law, Medicine & Ethics, 23 (1995): 15–19.

Emergency Medical Treatment and Active Labor Act, P. L. No. 99-272, 42 U.S.C. § 1395dd (1985) (renamed in 1989). This law and those that follow illustrate the kinds of bargaining endowments being given by courts and legislatures; they do not illustrate any systematic or coherent legal approach to medical futility.

In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va 1993); and In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 U.S. 91 (1994).

Durable Power of Attorney for Health Care, Nev. Rev. Stat. Ann. § 449.800 (1993); Durable Power of Attorney for Health Care, O.C.G.A. § 31-36-10 (1993); and Powers of Attorney for Health Care, 755 ILCS 45/4-10 (1988).

Durable Power of Attorney for Health Care, Minn. Stat. § 145C.15 (1993).

Daar Judith , “A Clash at the Bedside: Patient Autonomy v. a Physician's Professional Conscience,” Hastings Law Journal, 44 (1993): 1241–89; Nelson James L. , “Families and Futility,” Journal of the American Geriatrics Society, 42 (1994): 879–82; Rie Michael , “The Limits of a Wish,” Hastings Center Report, 21, no. 4 (1991): 24–27; Society of Critical Care Medicine, “Consensus Report on the Ethics of Forgoing Life-Sustaining Treatment in the Critically Ill,” Critical Care Medicine, 18, no. 2 (1990): 1435–59; and Nelson Lawrence J. , “Medical Futility and the Clinician's Conscience,” in Misbin Robert I. , Health Care Crisis? The Search for Answers (Frederick: University Publishing Group, 1995): 60–70.

Health Care Decisions Art, Va. Code Ann. § 54.1-2981 (1992).

Although a First Amendment freedom of religion claim was not the basis for the appellate decision in favor of Ms. H., Baby K's mother, the lower court had previously found that refusing to provide ventilator support would have violated her Free Exercise right (In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993)).

Declaration of Death Act, N.J. Stat. § 26:6A (1991).

Orders Not to Resuscitate, N.Y. C.L.S. Pub. Health § 2961 (1991).

Department of Veterans Affairs, Manual M-2, Clinical Affairs, Part I (Washington, D.C.: Department of Veterans Affairs, Veterans Health Administration, 1993).

Cardiopulmonary Resuscitation, O.C.G.A. § 31-39-2 (1991).

Solomon Mildred Z. , “How Physicians Talk about Futility: Making Words Mean Too Many Things,” Journal of Law, Medicine & Ethics, 21 (1993): 231–37.

Van McCrary S. , “Physicians' Quantitative Assessments of Medical Futility,” Journal of Clinical Ethics, 5 (1994): 100–04.

Benjamin Martin , Splitting the Difference: Compromise and Integrity in Ethics and Politics (Lawrence: University Press of Kansas, 1990).

Faden Ruth R. Beauchamp Tom L. , A History and Theory of Informed Consent (New York: Oxford University Press, 1986): At 261.

Maute Judith , “Public Values and Private Justice: A Case for Mediator Accountability,” Georgetown Journal of Legal Ethics, 4 (1991): 503–35; see also Fuller Lon L. , “Mediation—Its Forms and Functions,” Southern California Law Review, 44 (1971): 305–39; Susskind Lawrence , “Environmental Mediation and the Accountability Problem,” Vermont Law Review, 6 (1981): 1; and Menkel-Meadow Carrie , “Professional Responsibility for Third-Party Neutrals,” Alternatives, 11 (1993): 129–31.

Sato Glen , “Comment: The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance—A Proposal for Some Ethical Considerations,” UCLA Law Review, 34 (1986): 507.

Dubler Nancy N. Marcus Leonard , Mediating Bio-ethical Disputes (New York: United Hospital Fund of New York, 1994); and West Mary Beth Gibson Joan McIver , “Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques,” Cambridge Quarterly of Healthcare Ethics, 1 (1992): 63–74.

By shuttling back and forth between the disputants, a skilled ethics consultant or mediator can sometimes collect and disseminate information more effectively than by holding joint meetings. See Brown Jennifer G. Ayres Ian , “Economic Rationales for Mediation,” Virginia Law Review, 80 (1994): 323; Dubler Marcus , supra note 37; and West Gibson , supra note 37.

Purnell Sandra E. , “Comment: The Attorney as Mediator: Inherent Conflict of Interest?,” UCLA Law Review, 32 (1985): 986.

Annas George , “Asking the Courts to Set the Standard of Emergency Care—the Case of Baby K,” N. Engl. J. Med., 330 (1994): 1542–45.

Callahan Daniel , “Medical Necessity, Medical Futility: The Problem-Without-a-Name,” Hastings Center Report, 21, no. 4 (1991): 30–35.

Jacob Herbert , “The Elusive Shadow of the Law,” Law & Society Review, 26 (1992): 565–90.

But see McCrary , supra note 12; and Spielman Bethany , “Invoking the Law in Ethics Consultation,” Cambridge Quarterly of Healthcare Ethics, 2 (1993): 457–67.

For one approach to this problem, see Cranford , supra note 8.