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«I. INTRODUCTION: THE IMPORTANCE OF FUTILITY Despite twenty years of development in patient rights, end-of-life decisions still trouble law and ...»

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Virtue ethics can be extremely attractive to the medical profession because of its reliance on experience and actual human existence.

Furthermore, it emphasizes the individual physician and suggests an area of discretion that depends on the physician’s ongoing process of cultivating virtue. Edmund Pellegrino and David Thomasma describe the complex process of medical decisionmaking and establish a nuanced, virtue-based theory for medical ethics.33 Combining abstract theory and practice, this approach is teleological in that it is aimed at treatment and cure, but is nevertheless centered on the agent. Throughout the complex interrelation of interview, diagnosis, prognosis, and therapy, Pellegrino and Thomasma identify the common element as the physician. Thus, a medical ethic is substantially based on the idea of “physician as good man.”34 Through a formal profession of being a healer,35 the physician commits to the ongoing process of competently reaching right decisions. 36 Individual moral or medical decisions are not dictated; rather, the wisdom and experience of a physician is trusted and used to guide the process to reach the appropriate decision that meets the medical goals.

31. See BEAUCHAMP & CHILDRESS, supra note 23, at 62–63.

32. See id. at 64 (citing ARISTOTLE, NICOMACHEAN ETHICS 40 (Terence Irwin trans., Hackett Publ’g Co. 1985).

33. See generally EDMUND D. PELLEGRINO & DAVID C. THOMASMA, A PHILOSOPHICAL BASIS

OF MEDICAL PRACTICE: TOWARD APHILOSOPHY AND ETHIC OF THE HEALING PROFESSIONS (1981).

34. Id. at 194.

35. Id. at 209–10.

36. Id. at 213–14.

1228 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 In application, the virtue ethic defers much to the judgment of the physician. The physician occupies the position of repository of the experiences needed to assess the factual issues when faced with potentially futile treatment. As the trained, experienced participant, the physician applies practical reason and knowledge to come to an appropriate decision.

This does not mean that the physician is the sole decisionmaker, but rather an arbiter of the complexities contained in a decision.

D. COMMUNICATIVE-CARING ETHIC

A communicative ethic or ethic of caring relies on the idea that ethical meaning is created by the participants in a relationship. Caring is a fundamentally human project, one that is not captured by individual virtue or static principles. Frequently identified as a feminist theory, care emphasizes mutual interdependence in relationships, the role of emotion, and the development of communication that defines goals and creates appropriate meanings for all participants in a group. The morality of care is particularly emphasized in perspectives from nurses and incorporates affective, cognitive, and volitional aspects not well accounted for in other theories.37 In response to some of the feminist critiques of moral understanding,38 Nel Noddings has given more concrete form to this theory. 39 Central to this moral sense is that “one must meet the other in caring.”40 Collapsing a subject-object distinction, the communicative ethic requires both participants in a relationship to “become a duality” in which each is receptive of and feels a shared reality or experience.41 Both are engaged in a moral project, the product of which creates the proper context and meaning within the relationship. Unlike traditional ethical theories, caring is not a structured theory, but a guide. It does not “tell us as a mere form what to do but only how to conduct our deliberation.”42 While rejecting a concept-based ethic, the guiding activities and postures are that of reciprocity and receptivity. Meanings and the content of the decisions call

37. The most common example of caring-communicative ethics in practice is palliative medicine. For a discussion, see LAWRENCE J. S CHNEIDERMAN & NANCY S. JECKER, WRONG MEDICINE 60 (1995).

38. See, e.g., CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT (1982); Annette C. Baier, What Do Women Want in a Moral Theory?, 19 NOUS 53 (Mar. 1985).

39. See NEL NODDINGS, CARING: A FEMINIST APPROACH TO ETHICS AND MORAL EDUCATION

(1984).

40. Id. at 201.

41. Id. at 30.

42. Id. at 107.

2002] FUTILITY AND THE UHCDA 1229 forth a full range of human judgment, not just reason or moral calculus, filling out the moral deliberation. 43 Another theoretical perspective on this approach holds that communication is a process that supplies the determinative content of moral decisions. Rather than principles, pure reason, or power, it is the definitions and morality adopted by a group (a group as small as a family or as large as a society) and produced through communication that create a mutual understanding of the world. 44 Deciding the propriety of an end-of-life decision under the caringcommunicative paradigm means focusing the process on approaching members of the immediate group involved to understand and meet the patient’s fully formed interests. The physician also contributes to the meaning and is not simply saddled with an external decision against which he would react by withdrawing as physician. The physician does not merely give an answer, nor does the patient alone decide what is appropriate. While not definitive to a particular answer to futility, communicative-caring ethics requires a universal approach. The goals, aspirations, emotions, and meaning of all participants—patient, family, nurses, and physicians—are considered and contribute to the decision. A common definition of the goal is fostered and obtained. The actual result may be a mother rocking a dying infant into a permanent sleep, 45 or it may mean sustaining aggressive treatment until family members have come to terms with the death of their loved ones. Differences of opinion that threaten the understanding or do not share some of the defined goals indicate a failure in earlier communication. Merely opting out of treatment, as suggested in the UHCDA, implies an abandoning of the entire meaning conferred to ethical construction and a repudiation of the socially embedded nature of the participant.





In contrast to utilitarianism or rules-principles, caring-communication does not rely on excellence in reasoning, but instead on the practice of fostering communication. Beyond virtue ethics, with which it shares the paradigm of practical reasoning, caring-communication focuses not on agent ethics, but attunement and receptivity. 46 It moves beyond normative definitions and encourages the creation of shared meanings.

43. See id. at 37.

44. JURGEN HABERMAS, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press 1991).

45. See NODDINGS, supra note 39, at 46.

46. Patricia Benner, A Dialogue Between Virtue Ethics and Care Ethics, 18 THEORETICAL MED.

47, 47–49 (1997).

1230 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217

III. FUTILITY: THE IRRECONCILABLE CONFLICT?

Under the Hippocratic oath, a physician is accorded an “‘obligation to refuse to provide medical treatment when medicine cannot cure the disease or improve the patient’s condition.’”47 This postulate accurately reflects our impression that physicians should not pursue what is futile. Futility, however, is a difficult and nebulous concept. It appears to be a technical assessment of the limits of our technology, but these limits often become confused with the moral propriety of applying a particular technology. For example, a ventilator for a PVS patient is not futile in that it continues to maintain biological functioning. A person truly in a PVS state, however, would arguably not benefit in the long term from this ventilation. It merely preserves biological functioning. Depending on the perspective on the definition of futility, we come to very different moral conclusions as to what course of treatment to pursue.

Historically, the definition of futility shifted with the views on patient autonomy and the physician’s role. In the 1960s, the term futility was used by authors—focusing on the potential for medical advances—to identify situations in which CPR failed. Those using the term did not focus on the lack of hope or potential for recovery, but merely on the immediate efficacy of resuscitation. CPR was futile when it would start the heart but the patient would not recover in the long-term. Only some hinted at the possibility that CPR may not actually help a patient to recover.48 Contemporaneous with this use of futility, lay knowledge of medicine began to shift. Society’s general knowledge about medicine increased and instances of patient experimentation galvanized individuals’ opposition to traditional medical paternalism. 49 In addition, the rights movements of the 1960s–70s generally promoted increased recognition of individual autonomy and self-determination. 50 This extended to medicine as a right to determine treatment. In 1976, the family of Karen Quinlan fought their doctors in order to prevent what they saw as futile treatment of a PVS.

This case signaled the judicial affirmation of a patient’s rights and role in medical decisionmaking. In the 1980s, statistical analyses of CPR

47. Levine, supra note 4, at 85 (quoting James J. Murphy, Comment, Beyond Autonomy: Judicial Restraint and the Legal Limits Necessary to Uphold the Hippocratic Tradition and Preserve the Ethical Integrity of the Medical Profession, 9 J. CONTEMP. HEALTH L. & POL’Y 451, 466 (1993)); Edmund D.

Pellegrino, Ethics, 270 JAMA 202, 202 (1993).

48. Robert M. Taylor & John D. Lantos, The Politics of Medical Futility, 11 ISSUES L. & MED.

3, 5 (1995).

49. Robert J. Dzielak, Note, Physicians Lose the Tug of War to Pull the Plug: The Debate About Continued Futile Medical Care, 28 J. MARSHALL L. REV. 733, 740 (1995).

50. Id. at 740–41.

2002] FUTILITY AND THE UHCDA 1231 indicated situations in which doctors concluded that applying CPR in some situations represented bad faith because the likelihood of benefit was so low. 51 In response to the rights movement of the 1960s and 1970s, the public—with the support of the courts—decided that physicians should not continue futile treatment.

As we moved into the 1990s, however, patients became consumers of medical technology, often forcing the hands of their doctors by seeking to determine when treatment should be applied. In contrast to the power struggles of the 1960s where patients and families fought to prevent futile treatment, in the 1990s it was the doctors who increasingly fought against the application of futile treatment. Physicians thus began to adopt a technical position that not all treatment should be pursued. Finally, reversing the role of physician and patient in In re Quinlan, Conservatorship of Wanglie 52 saw the family of a PVS patient resist the physician’s efforts to discontinue ventilation. 53 In response to this role reversal and the emergence of the problem of futility, new approaches were and are needed to guide decisions.

One approach to resolving questions of futility has been a broad, systematic process that defines a technical answer to when treatment is futile. Such an approach often relies on the difference between two goals in medicine: effect and benefit. Treatment that produces an effect only measurably affects the patient.54 Treatment that produces a benefit improves the patient’s prognosis, comfort, well-being, or state of health. 55 Both qualitative and quantitative perspectives of futility are employed to interpret the effective or beneficial goals in order to define futility.

Qualitative futility depends on an assessment of whether a patient can move from life-sustaining treatments or a PVS to a life freer of intervention. 56 A quantitative assessment of futility depends on whether a treatment has worked beyond a reasonable probability of success in previous cases. Applying the two perspectives—effect and benefit—to the two goals—qualitative and quantitative—produces three definitions of futility. The first includes treatment that has no effect—like antibiotics being used to treat a viral infection. 57 A second definition is futility as

51. Taylor & Lantos, supra note 48, at 6.

52. No. PX-91-283 (Minn. Dist. Ct. 1991), reprinted in 2 BIOLAW § 12-6 (James F. Childress & Ruth D. Gaare eds., Aug.–Sept. 1991 Update).

53. Id. at 6–7.

54. Levine, supra note 4, at 75–76.

55. Id.

56. Id. at 76.

57. Mark Strasser, The Futility of Futility?: On Life, Death, and Reasoned Public Policy, 57 MD.

L. REV. 505, 514–16 (1998).

1232 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 nonbeneficial treatment, which would be exemplified by a treatment whose only effect is to increase pain. 58 A third definition is to efficacy by how well it meets the patient’s goals.59 These positions might be summarized as follows. Qualitative judgments assess the overall quality of life that might result from a particular treatment.60 Quantitative judgments involve a more rigorous assessment of the likelihood of a particular outcome.61 To a large extent, this method of defining futility relies on a reasoned, rule-oriented vision of medico-ethical decisionmaking. An a priori decision is applied to facts to produce the right decision. Recognition and logical application of the rule in a situation may or may not activate the physician’s duty. The quantitative method, in particular, relies on reasoned, quasi-scientific rationale to determine the right course. While a softer approach, the qualitative method also relies on a “yes duty” versus “no duty” heuristic.



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