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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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1238 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 sense of patient autonomy and seems an abrogation of the joint enterprise into which both patient and physician participate. Further, withdrawing care requires some leap of faith that no prosecution would commence.

Finally, it would also be unlikely to withstand judicial scrutiny that emphasizes individuals’ rights to control their own destiny.

This sort of “good faith” reasoning also seems to rely on the virtuecharacter ethics. The deference to the medical field and its ability to set up standards and serve as a model of comparison relies on the practice of its practitioners. In the realm of end-of life decisions, the virtue model seems to be disfavored. While generally acceptable for assessing the propriety of affirmative acts, withdrawal of, or withholding care is particularly important and close to our moral and theological beliefs. Furthermore, applying the malpractice standard merely returns to a 79 Physician practice and quantitative/qualitative determination of futility.

individual good faith action are no longer considered the measure of propriety in end-of-life decisions.

The withdrawal of care may be more similar to abandonment. The rule of common law abandonment requires that a physician continue treatment if in a physician-patient relationship. If there is a dispute about appropriateness, the physician can discharge the duty by providing notice and opportunity to seek treatment elsewhere.80 The physician, under the rubric of a law to protect patients, is incidentally protected from being forced to participate in ethically objectionable or inappropriate treatment.81 This doctrine more adequately describes an instance of withdrawal, but does not rely on the virtue model as malpractice does. Rather, it refers to clear duties—a product of ruled-principled ethical decisionmaking. The UHCDA does seem to adhere to this model more closely, requiring that a patient be informed and that doctors allow the patient to seek treatment elsewhere when a futility disagreement arises. But, as argued above,82 such an abrupt termination of the relationship may be inappropriate.

Certainly in matters of more mundane treatment, abandonment and malpractice would be appropriate. A physician and patient disagreeing on the schedule of surgical treatment for a knee injury could certainly be resolved through termination of their relationship, because the consequences and moral ambiguities are less salient. When faced with end-of-life decisions, however, such a model does not do justice to the

79. See supra Part III.

80. See Levine, supra note 4, at 88.

81. Id.

82. See supra Part IV.C.

2002] FUTILITY AND THE UHCDA 1239 complex process that leads to life or death results. Withdrawal at the end of a process shuts the door on all the previous communication that helped formulate goals. Particularly when the patient is incapacitated or represented by a surrogate, withdrawal at a late stage nullifies the meanings created.

There is no consensus on when life-sustaining treatment should be withdrawn or withheld. While calls for a medical or statistical definition attempt to clarify this sort of professional standard of practice, it is not clear that such a consensus is possible. A merely statistical definition might violate the moral beliefs of doctors and certain institutions. The definition might suggest their goal of pursuing life-sustaining treatment in recognition of a patient’s express beliefs is not just a different moral decision, but medically improper. Even if a majority of physicians agreed to a technically defined standard of care, it is not clear that such a definition can really account for distinctly moral questions. Defining a singular point of treatment merely adopts an absolutist position that hides moral questions within scientific trappings. Adopting an abandonment or malpractice standard would rationalize and dismiss the moral ambiguities inherent in questions of futility and would fail to preserve the meaning-creating process inherent in the doctor-patient relationship.

D. THE STATE INTEREST IN THE ETHICAL INTEGRITY OF THE MEDICAL

PROFESSION The theme codified in sections 4734 and 4735 is that physicians can decline to comply with the course chosen by an autonomous patient. The California legislature has seemingly adopted a position that promotes physicians’ interests as a state interest, much as a patient’s interests are protected. As a patient’s autonomy entitles that person to direct treatment, so too the physician’s autonomy entitles the doctor to direct those decisions he or she makes. While seemingly a contradictory position, the legal doctrine that protects a physician’s integrity stems from the same legal traditions protecting the autonomy of patients. Like a patient, the physician cannot be forced into a course of action he or she deems immoral or useless. The development of the protection of physician autonomy, however, takes a circuitous path that does not produce a clear definition of what right is being protected. The result is a murky legal principle.

In addition to the patient’s right of control, the common law has recognized other state interests, including the ethical integrity of the medical profession (“EIMP”). The earliest manifestation of the EIMP may 1240 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 have been in Superintendent of Belchertown State School v. Saikewicz.83 In Saikewicz, the Massachusetts Supreme Court consolidated previous rulings in Jehovah’s Witness transfusion cases to hold that a patient could not refuse care despite other countervailing state interests in the following situations: (1) preservation of life; (2) protection of innocent third parties;





(3) prevention of suicide; and (4) protection of the ethical integrity of the medical profession. 84 The case clearly stated that medical ethics were to be promoted. 85 Although this state interest was first directed at the individual doctor, it slowly transformed into an interest in the institution. Saikewicz’ concern with ensuring that the individual physician was not forced to do something contrary to his moral system shifted to a concern with ensuring that medical institutions were preserved.86 While promoting the EIMP, courts and legislatures have provided no clear definition or standard for what it entails. While Saikewicz suggested that the state has a strong interest in promoting the individual physician’s integrity, other decisions suggest different approaches, while ostensibly utilizing the Saikewicz balancing test. In particular, subsequent cases like In re Quinlan support the EIMP through advocating or deferring to the position of official medical institutions, such as the American Medical Association (“AMA”). This confusion as to a standard is compounded by the extent to which the EIMP is truly a factor weighed against other interests. To understand how end-of-life decisions have honored the EIMP and how the EIMP might guide decisions in futility, it is necessary to examine the concept of the EIMP more closely. While attempts to resolve this indeterminate and inconsistently applied standard do clarify the importance of EIMP, they have not produced standards by which physicians or other care-providers can guide decisions.

Brian Kalt suggests five interpretations of the standard entailed in the EIMP: (1) liability (doctors are not exposed to liability for doing the right thing); (2) full treatment goal (patients cannot ask to be treated while withholding consent to some treatments, thus tying a physician’s hands in electing appropriate treatments); (3) appropriate treatment (the doctor’s job is to treat fully, but patient can refuse some treatments); (4) individual conscience (doctor does not have to violate conscience); and (5) societal goal (society must guarantee that doctors maintain consistently high levels 83. 370 N.E.2d 417 (Mass. 1977).

84. See id. at 425.

85. See id. at 426.

86. See Brian C. Kalt, Death, Ethics and the State, 23 HARV. J.L. & PUB. POL’Y 487, 504–05 (2000).

2002] FUTILITY AND THE UHCDA 1241 of ethical conduct).87 Kalt concludes that autonomy has been defined such that medicine does not require full treatment. Furthermore, the courts have not gone so far as to guarantee active maintenance and promotion of physician ethics, opting instead, as expressed in In re Quinlan, to defer to medical institutions’ decisions.88 Thus, courts ultimately support a concept of EIMP composed of a combination of liability, appropriate treatment, and individual conscience.

In the Karen Quinlan case, the New Jersey Supreme Court affirmed a decision to allow the withdrawal of life, trumping the interest in EIMP. In deciding that Quinlan’s interest in withdrawal was allowed, the court concluded that EIMP was not a personal right, but was an external duty imposed by membership in the medical profession. 89 The individual doctor was not protected, but was seen as part of a profession that deserved protection. Continuing the lower court reasoning, the court accepted that the judiciary could defer to doctors, but only insofar as hospital ethics committees should decide such cases as Quinlan’s.90 The individual doctor’s conscience was pushed aside and the patient’s interests and desires ultimately prevailed.

In Washington v. Glucksberg, the Supreme Court did address the issue of the ethical integrity of the medical profession, albeit in the context of physician-assisted suicide. 91 The Court suggested that EIMP could be used to promote ethical doctors in society. 92 In explication, the Court deferred to the AMA’s position that physician-assisted suicide is incompatible with the role as healer. This position essentially suggested that the role of a physician was that of a healer, and that this role was undermined by physician-assisted suicide. 93 Nevertheless, the Court, while noting the societal interest, ultimately deferred to a technical-medical decision that the treatment in the case was inappropriate.94 Thus, while commenting on the promotion of values espoused by the AMA, it decided the case on different grounds. It applied the official, institutional ethic to derive a quasiscientific decision; morality and the physician’s conscience were superseded.

87. Id. at 514–15.

88. See In re Quinlan, 355 A.2d 665–66 (N.J. 1976).

89. See id. at 666. See also Kalt, supra note 86, at 499–500.

90. See Quinlan, 355 A.2d at 669–71.

91. See Washington v. Glucksberg, 521 U.S. 702, 705 (1997).

92. See Kalt, supra note 86, at 537–41.

93. See id. at 539.

94. See Glucksberg, 521 U.S. at 731.

1242 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 The failure of the state interest in EIMP to allow doctors to refuse to comply with patient wishes may be due to the inadequacy of a balancing test that weighs the utility of a physician’s ethical integrity against the close, deeply felt needs or wishes of a patient. The failure also stems from the absence of a clear standard for EIMP.95 Despite strong rhetoric that the law supports the state interest in preserving the EIMP, this interest has rarely, if ever, trumped other interests.96 The courts and legislatures have not defined what is the right treatment in the case of withholding or withdrawing end-of-life treatment. Given the complex balancing test invoked, there is no right decision absolving a physician of liability.

Furthermore, the courts, by deferring to the AMA for ethical positions, have not supported the individual physician’s conscientious withdrawal.

When a vacuous concept is weighed against rights, it is predestined to fail.

This ultimately leaves “appropriate care” as the sole remaining definition of the interest protected by EIMP as provided by Kalt. The position that doctors should provide full treatment, but for refusal, merely instrumentalizes the physician and accepts the shift from full medical paternalism to full patient autonomy and direction. This final position seems too extreme. Indeed, by adopting UHCDA sections 4734 and 4735 and acknowledging the EIMP as an interest, the courts recognize that the physician’s moral integrity cannot be usurped. We are thus left with an indeterminate standard and no clear definition of how the EIMP can give guidance to futility.

The integrity of medical professions has meant merely that the physician’s decision must be consistent with broadly accepted ethics. The patient’s interest ultimately trumps all other interests, suggesting that the EIMP is not really part of a balance, but is a nagging concern inevitably disregarded when weighed against patient autonomy. The interest in EIMP is merely noted by the courts, but is not necessarily given substance when applied to the individual physician’s conscience. Rather than a balancing test, the development of patient autonomy has overpowered the EIMP.97 Nevertheless, courts, and now legislatures, continue to reference the EIMP as a source of physician protection. While not effectuating actual decisions that defer to physicians, this continued reference and formalistic adoption of the balancing test may reflect lingering doubts. In the twenty years in which patients have gained the right to direct their medical care, concerns over what was seen as paternalistic medicine may have been swept aside.

Now, the importance of the physician’s ethical stance in the face of

95. See Kalt, supra note 86, at 516–18.

96. See id. at 516.

97. See id. at 520–21.

2002] FUTILITY AND THE UHCDA 1243 medically inappropriate care may be more salient, and the California legislature may have attempted to give this provision more substance.



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