Chapter 5.C.  Futility

p. 595

Although multiple experts supported the withdrawal of care before the medical review panel, the Causey case was settled before trial on remand.

p. 599

Nearly a decade after the Gilgunn case, Massachusetts General Hospital sought judicial permission to discontinue aggressive treatment of a patient severely disabled by ALS (Lou Gehrig's disease), over the objections of the patient's daughter.  For the most part in this case, the hospital did not succeed with its futility argument.  The trial court upheld the patient's appointment of her daughter as health care proxy and also ordered the writing of a do-not-resuscitate order (which by the time of the decision had been agreed to by the daughter) on the grounds that CPR would be both "inappropriate and harmful."   The court also instructed the daughter to make future medical decisions based on the daughter's assessment of the patient's best interests.  The court felt that the patient's condition had deteriorated in ways unanticipated by the patient and that the patient's wishes were no longer ascertainable.  (In the appointment, the patient directed her daughter to decide on the basis of her wishes unless her wishes were unknown, in which case her daughter was supposed to decide on the basis of an assessment of best interests.)  In re Barbara Howe, No. 03 P 1255 (Mass. Prob. & Fam. Ct., Suffolk Div., March 22, 2004).  A year later, the daughter and hospital were back in court and settled the dispute with an agreement that the hospital would maintain ventilatory support for 3 more months and then be free to discontinue treatment.  Ms. Howe died 26 days before the expiration of the 3-month period.  John J. Paris, et al., Howe v. MGH and Hudson v. Texas Children’s Hospital: Two Approaches to Resolving Family-Physician Disputes in End-of-life Care, 26 J. Perinatology 726 (2006).

For a case in which the court invoked a state futility statute, see Hudson v. Texas Children’s Hospital.  In that case, a probate court judge cited Texas’ statute to approve withdrawal of a ventilator from a seriously disabled newborn.  Sun Hudson suffered from thanatropic dysplasia, “a severe genetic form of dwarfism that frequently results in early death from respiratory failure.”  Paris, et al., Howe v. MGH, supra.  Because of the child’s condition and prognosis, the hospital asked for and received permission from the probate court to discontinue treatment on grounds of futility.  For further discussion of the case, see Paris, et al., Howe v. MGH, supra.