Annals of Long Term Care

The ongoing debate on healthcare reform took an interesting turn over the past summer as focus shifted, at least for a short period of time, to the question of when to pull the plug on Grandma. The debate ended, at least for now, as politicians all ducked for cover claiming that government would never pull Grandma’s plug.

Of course, sooner or later, absent nature’s intervention, someone needs to pull the plug on Grandma. The question is who, when, and under what circumstances. Since this question first hit the courts, more than 30 years ago, our courts have consistently held that this is a question that should first be answered by the patient, and if the patient is not competent, by the patient’s designee or closest family member. New York State has just expanded its laws to also allow close friends to make these decisions. But, what happens when the closest family member is too grief-stricken to make a rational decision—or worse, has a financial interest in the decision? What happens when that family member demands unreasonable treatment? And who is to decide what constitutes unreasonable treatment?

These are questions that an appellate court in New Jersey may soon answer. The matter currently before the court involves a 73-year-old gentleman who suffered an anoxic injury that resulted in him falling into a moribund, permanent vegetative state. He became ventilator-dependent, feeding tube–dependent, and his renal function deteriorated into renal failure, requiring dialysis several times weekly.

His body deteriorated, and he developed severe decubitis ulcers on his body, resulting in deep infections extending into the bone. The only thing prolonging biological life was the medical care rendered. The patient’s treating doctors sought to discontinue dialysis, but the family objected, so a court order was sought allowing the doctors to discontinue treatment. At a hearing before the trial court, the patient’s doctors all testified that continued treatment was both futile and contrary to accepted standards of care. In rebuttal, the family produced a physician expert who testified, in essence, that the standard of care required physicians to provide any care requested by the family. The trial court concluded that because the family desired all heroic measures to be implemented, there were no circumstances that would justify withholding inappropriate treatments.

Complicating the case is a potential underlying malpractice suit against the hospital and its physicians for allegedly negligently causing the underlying anoxic injury. As such, the longer the patient survived, the greater the potential damages and the more money the patient’s heirs, who were driving the decision to keep the patient alive, are likely to receive.

Further complicating the matter is the American Medical Association’s (AMA) own Code of Medical Ethics, which holds that the concept of futility cannot be meaningfully defined. If one subscribes to this position, termination of life decisions cannot be based upon this concept, and the hospital’s argument that further care would be futile would have to be rejected.

So, what do we do when the patient is not able to make a decision, the family has a significant conflict of interest, and the AMA says that we cannot define futility? If we cannot define futility, how do we determine what treatment is reasonable? Do we consider likelihood of recovery, quality of life? If so, who makes the decision, and what are the criteria? Dare we ask, can we also consider cost of treatment?

Since it is unlikely that our politicians will muster the courage to confront these issues, it is likely that these decisions will ultimately fall, on a case-by-case basis, to the best judgment of the physician community.