‘Futile care’ duty to die may be coming to a hospital near you

When a Canadian man named Hassan Rasouli suffered complications after brain surgery, his doctors wanted to pull the plug. But his Muslim family said no. It was against Hassan’s values, and moreover, they believed he showed signs of improvement. In any event, they wanted him to be able to continue to fight for life.

But that didn’t end matters. The doctors claimed that continuing treatment was “futile” because he would never get better. Moreover, they announced they intended to stop all treatment except for comfort care — regardless of the family’s desires or their patient’s personal values — an example of what is known in bioethics as “Futile Care Theory” or “medical futility.”

The case ended up in court. Justifying their desired imposition on the family, the doctors testified in a written affidavit: “It is as certain as anything ever is in medicine that he will never recover any degree of consciousness,” Wrong. Hassan later woke up and became reactive to the point that he can now give a “thumbs up” when asked how he is doing.

Despite this, the doctors are still conducting tests to determine whether they remain committed to stopping his treatment. Further, they have asked the Canadian Supreme Court to grant physicians the general legal right to refuse wanted life-extending treatment. If they prevail, it will mean that extending life will cease to be considered medically “beneficial” — even when that is what the patient and/or family wants.

Some might snort derisively and think, “Well, that’s Canada with single-payer health care. That’s what happens in socialized systems.”

Not so fast. Futile Care Theory has been pushed quietly by bioethicists in this country for years. Indeed, many, if not most, hospitals have promulgated some form of internal futile care protocol. Not only that, but many states — most notably Texas — legally grant hospitals the statutory right to refuse wanted life-sustaining treatment.

This is how the Texas law, seen as a model by many futilitiarians, works: Under the Texas Health and Safety Code, if the physician disagrees with a patient’s decision to receive treatment, he or she can take it to the hospital bioethics committee. A hearing is convened at which all interested parties explain why they want or don’t want treatment to continue.

If the committee decides to refuse treatment, it is determinative. Even if the family finds another doctor willing to provide the treatment, it can’t be done in that hospital. At that point, the patient/family has a mere ten days to find another hospital willing to take the patient, after which, according to the statute, “the physician and health care facility are not obligated to provide life-sustaining treatment.”

In practical terms, that’s a death sentence. The economics of medicine have changed from the old fee-for-service days. Today, extended care in ICUs is usually a money loser for hospitals, meaning that families find it almost impossible to find a facility willing to accept the transfer of expensive patients whose care has been declared to be “futile.” There are even reported cases of desperate families looking out of state for a facility willing to provide treatment for a loved one about to be pushed out of the lifeboat by a Texas hospital.