A THEORY'S DEADLY ETHICS
SMITH, WESLEY J.
THE DEADLY ETHICS OF "FUTILE CARE THEORY" By Wesley J. Smith Former news anchorman Hugh Finn was intentionally dehydrated to death last month, when doctors at a Manassas, Va., nursing home removed...
...The act was legal...
...Michael is alive today only because the Michigan Supreme Court ruled that Mary had failed to demonstrate by clear and convincing evidence that Michael, in his current condition, would want to die...
...And if no other hospital will take the patient...
...The case is expected to go to trial early next year...
...In 1993, when doctors at Hurley Medical Center in Flint, Mich., decided to remove life support from Baby Terry, a prematurely born infant with little chance of survival, his parents objected...
...The only care such patients are generally supposed to receive at Alexian Brothers is comfort care—regardless of their families' or their desires...
...Then, he awakened and learned to maneuver his wheelchair down a hospital corridor and perform other simple tasks on request...
...The family sued...
...Treatment isn't supposed to be stopped because it has no effect, but because it does...
...Still, his wife Rose wants him dehydrated THE ROBERT WENDLAND CASE MAY BE THE FIRST TIME A PUBLIC DEFENDER HAS URGED A JUDGE TO SENTENCE A CLIENT TO DEATH...
...After determining that he was not a suitable candidate for organ donation, his doctors declared that any further treatment of Ryan was futile, and they removed him from dialysis over the explicit objection of his parents...
...A strikingly similar case involving a Stockton, Calif., man named Robert Wendland is now playing out in the courts...
...They can't or don't protest...
...His doctors claimed he would always remain unconscious, in what is known as a permanent vegetative state...
...Doctors and hospitals that acted in "good faith" pursuant to the law would be granted immunity to civil and criminal penalties...
...Futile-care policies are ostensibly designed to relieve the suffering of desperately ill and disabled people...
...Should families choose death for their loved ones, their wishes are honored and acted on with dispatch...
...Had she been able to do so, the dehydration would have occurred...
...Had Ryan's original doctors successfully imposed their futile-care philosophy, Ryan would be dead today instead of a living 4-year-old boy...
...Eventually, Ryan was transferred to Legacy Emanuel Children's Hospital in Portland, Ore., where he was soon weaned off dialysis...
...Alarmingly, if passed in their current form, the bills would set futile-care theory into legal concrete...
...Futile-care policies, in and of themselves, won't save that much money...
...The power of the state of California and the money of its taxpayers are now being used to urge the death of one of its citizens, whose only "crime" is to be brain-damaged...
...It is only when families are divided, as they were in the Finn case, that such cases end up in court...
...Ryan was born after only 23 weeks of gestation and required kidney dialysis to remain alive...
...They are in fact the beginning of a larger struggle for control of health-care decision-making by an elite caste of hospital administrators, doctors, and bioethicists who share an unwholesome interest in arbitrating who is worthy—and who is unworthy—of keeping alive...
...But in a nasty twist, Berg sided with the wife and argued even more vehemently and emotionally for Robert's dehydration than Rose did—perhaps the first time in the history of jurisprudence that a public defender has urged a judge to sentence a client to death...
...They shouldn't have...
...McNatt's December 9, 1997 decision may have been only a reprieve for Robert Wendland...
...Terry had gained a pound and successfully fought off a bacterial infection since his birth, and his parents hoped for a miracle...
...Futile-care theory is so new that the state of the law has not kept pace with clinical practice, leaving families, lawyers, and clinicians in doubt as to their respective rights and obligations...
...The policy is silent...
...Among bioethics professionals, for whom such a restructuring of society is a deeply treasured goal, this is known as "distributive justice...
...It took eight days for Finn to die...
...We will then be well down the path to wholesale health-care rationing—a topic that is already of consuming interest to bioethi-cists...
...It had the explicit approval of federal and Virginia courts...
...Notwithstanding this testimony, and despite the wife's admission that she would benefit financially from her husband's death, the trial court and the Michigan Court of Appeals ordered the dehydration to proceed...
...Doctors couldn't figure out what was wrong and spent THE NAME IS A BIT DUPLICITOUS: IT ISN'T THE TREATMENT THAT THEORISTS SEE AS FUTILE...
...Doctors who wish to provide "inappropriate" treatment must "provide written justification...
...nearly two months treating her and conducting extensive medical tests, which finally revealed that Beverly had terminal-stage cancer...
...Their decision landed them in court, where a judge—solely on the basis of their refusal to terminate life support—stripped them of their right as parents to make medical decisions for their son...
...So, Dr...
...His brother Ed claimed that Hugh was sometimes conscious and interactive, as did other members of the Finn family...
...But Judge Bob McNatt reluctantly declined...
...He was unconscious for about 16 months—during which time California law would have explicitly permitted his dehydration...
...Berg quickly appealed and asked McNatt to authorize the use of San Joaquin County funds for a private attorney to argue for Robert's death in the appeals courts...
...But the hospital's ethics committee overrode the family's objections and gave Dr...
...Typical of such policies is the one instituted last year by the Alexian Brothers Hospital in San Jose, Calif...
...Opponents of the measures are hoping to require that care of the patient continue until a doctor can be found willing to provide the desired treatment...
...The Alexian Brothers "Non-Beneficial Care Policy" creates a presumption that requests for medical treatment (including such low-tech interventions as antibiotics, tube feeding, and medical testing, as well as high-tech treatments such as dialysis) are "inappropriate" for patients with severe illnesses or profound disabilities, such as permanent vegetative state, permanent dependence on intensive care, and terminal illnesses in the final stage...
...Finn's death made headlines because of the intervention of Virginia governor James Gilmore on the side of Finn's brothers and parents, who wanted feeding to continue...
...To better defend themselves in court, many hospitals have begun quietly to adopt formal futile-care policies that they hope judges will enforce...
...Moreover, conscious brain-damaged patients meet the same end...
...The parents of Baby Ryan, in Spokane, Wash., had a similar experience the following year...
...Robert was severely injured in a 1993 auto accident...
...If the person speaking for the patient disagreed with the decision of the ethics committee, he would have to move his loved one to a different hospital...
...Little noticed by the mainstream media—but well documented in the medical literature—doctors and hospitals in Michigan, Massachusetts, Texas, Tennessee, and California have already refused to provide desired medical treatment to profoundly disabled and dying patients...
...Ryan would have died, but his parents sued and obtained a temporary court order to continue treatment...
...But they are also underpinned, let's face it, by a cold-hearted, collectivist desire to save "scarce resources" by throwing society's weakest members out of the lifeboat...
...to death, contending that he would not want to live in a dependent condition...
...The punishment for deviation from the policy is unmentioned, but the one club every hospital holds over doctors is the suspension or withdrawal of staff privileges...
...Today, people diagnosed as being in a permanent vegetative state are deprived of food and water almost as a matter of medical routine...
...And with remarkably few exceptions, no one else protests their fate either...
...But Wesley J. Smith, an attorney for the International Anti-Euthanasia Task Force, is the author of Forced Exit: The Slippery Slope From Assisted Suicide to Legalized Murder...
...As a result, futile-care theorists encounter surprisingly little opposition as they carve into the bedrock of American law the utilitarian principle that the lives of some people can be sacrificed for the benefit of others deemed more worthy of care...
...And many people around the country expressed shock at his fate...
...Seen in this light, the food and fluid cases and the coming futile-care disputes do not represent the end of a legal debate over individual choice and patient autonomy...
...In 1990, the Supreme Court gave its implied permission to the practice in the Nancy Cruzan case...
...The measures would permit hospitals to refuse desired treatment if based on a "formally adopted policy" predicated on "sincerely held moral convictions...
...Baby Terry died as the case was being appealed...
...there was significant reason for doubt...
...Robert's interests were supposed to be represented by a San Joaquin County public defender, Doran Berg...
...The judge in the case refused to allow time for further investigation...
...Lawsuits are sure to follow...
...Disputes about treatment would be taken to committees that the legislation would require each hospital to create...
...But once futile-care theory is legally entrenched, America's traditional medical system—organized around preserving the life and health of the individual patient and the Hippocratic obligation of the doctor to care for that patient—will be enfeebled beyond recognition...
...If the patient is conscious, it remains a harder sell to obtain court permission for dehydration and starvation over family objections...
...She was opposed in court by Michael's mother and sister, who presented medical testimony that he was conscious, enjoyed television and music, and had indicated a desire to live...
...But it is doubtful that the courts will resist for much longer...
...The name is a bit duplicitous...
...Dayton wrote a letter to her family telling them of his intention to cease further life-supporting treatment based on his determination that it was "futile" because it would "prolong her suffering and not save her life...
...Mary Martin wanted to dehydrate her husband, who was brain-damaged from an auto accident...
...He could communicate with head nods and shakes...
...But that is only partly true...
...McNatt agreed and permitted a maximum fee of $50,000...
...But many medical associations have now endorsed the doctrine, which means that desperately ill and disabled patients will increasingly be denied treatment against their families' and their wishes...
...He is currently writing a book about bioethics...
...Six days later, her life support was removed and she died later that day...
...In futile-care cases, it isn't the treatment that theorists see as futile, but the patients...
...For years, the medical intelligentsia—philosophers, academics, and policy advocates known as bioethicists— have pushed lawmakers and judges to permit the death of patients like Hugh Finn who depend on feeding tubes for nutrition and water...
...Finn was not terminally ill...
...Physicians, too, could refuse to treat patients if doing so violated their moral beliefs...
...He was left severely brain damaged by a 1995 automobile accident...
...But if the patient is in a vegetative state, it is almost impossible to stop a dehydration ordered by a spouse or other primary medical decision-maker, no matter how strongly other members of the family may object...
...Futile-care decisions are already being implemented in many of the nation's hospitals...
...Now Finn is dead, and we will never know the truth...
...In 1996, Beverly Williamson was admitted to Mercy with septic shock and renal failure caused by a previously undiagnosed cancer...
...A medical investigator testified that Hugh Finn had said "Hi" to her upon their first meeting, which if true proved Finn was conscious...
...THE DEADLY ETHICS OF "FUTILE CARE THEORY" By Wesley J. Smith Former news anchorman Hugh Finn was intentionally dehydrated to death last month, when doctors at a Manassas, Va., nursing home removed his feeding tube at the request of his wife, Michele...
...Lang Dayton, a local physician...
...People on the medical margins are the first victims of the distributive-justice movement because they are widely viewed as having lives of little meaning or purpose...
...Cases such as Hugh Finn's, Michael Martin's, and Robert Wendland's are usually described in the media as promoting patient autonomy and private medical decision-making by families...
...Robert Wendland would be dead today but for an anonymous whistle-blower who alerted Robert's mother, Florence Wendland, and his sister, Rebekah Vinson...
...The litigation has been bitter and prolonged...
...In New York, legislation has been introduced to clarify the rights and obligations of decision-makers and health-care providers when a patient is incompetent...
...Beverly would undoubtedly die...
...The theory goes like this: When a patient reaches a certain predefined stage of age, illness, or disability, any further care other than pain-relief is "futile" and should be withheld, regardless of the desires of the patient or family...
...A current lawsuit over futile care involves Mercy Medical Center, of Redding, Calif., and Dr...
...Hospital personnel are urged to report doctors who violate the guidelines to the medical director...
...Futile-care theorists would refuse desired end-of-life treatment to Grandma Jones in Florida so that Little Suzie in Appalachia could have better access to medical care...
...They sued to keep Robert alive...
...Stating that he was making "the absolutely wrong decision, for all the right reasons," McNatt ruled wisely that such a momentous change in law and ethics should be decided in the legislature or a court of appeals, not by a trial judge...
...This doctrine, little known among the general public but all the rage in bioethics, is called "futile-care theory...
...But if families insist that their brain-damaged loved ones continue to be nourished and cared for, these same experts proclaim instead that "autonomy has its limits...
...Dayton permission to cut off Beverly's treatment...
...Indeed, families of profoundly brain-damaged people are often pressured by doctors and social workers to cease "treatment" with food and fluids as a way of easing family burdens and ending lives deemed to have poor quality...
...But let's give the movement its proper name: rule by the strong...
...Increasingly, "choice" in medical cases involving the profoundly disabled people is viewed by bioethicists and doctors as a one-way street...
...Beverly's family objected immediately and in writing, in deference to Beverly's oft-stated, deeply held desires about the level of care she wanted at the end of her life...
...This has led to a handful of court cases...
...TREATMENT IS STOPPED BECAUSE IT IS EFFECTIVE...
...Patients and families who disagree with the hospital's determination of futility must find another hospital...
...Take the Michael Martin case in Michigan three years ago...
Vol. 4 • November 1998 • No. 12
