Defeat for Futile Care in New Jersey

Defeat for Futile Care in New Jersey
Part Two of Two

Since this TN&V is largely based on a superb account of a case in New Jersey found on the blog of bioethicist Wesley Smith, I thought it only just to borrow his headline as well. (You can find his analysis of Betancourt v. Trinitas Regional Medical Center at www.wesleyjsmith.com.)

No one writes as fluently or as knowingly on the issue of "futile care" as Wesley Smith. The overarching issue of these cases is the growing insistence by medical facilities, usually but not always hiding behind internal "ethics review committees," that they can decide when treatment is "futile" and can, on their own, stop it. Doesn't matter what the patient or the family wants, treatment will be stopped.

At best, a patient will be given a certain amount of time to find a facility that will treat the patient. But, obviously, out of a warped sense of medical solidarity, this can be (and has been) very, very difficult to find.

Betancourt v. Trinitas Regional Medical Center had a happy legal resolution, at least for now. According to Smith, "the family of a 73-year-old man diagnosed to be in a persistent vegetative state sued a hospital attempting to unilaterally withdraw extensive life support."

It's important to note upfront that the family flatly disagrees that their dad, Ruben Betancourt, is "in an unresponsive, persistent vegetative state" nor do they agree that treatment is "futile and harmful," as explained by Judge John F. Malone in his decision.

What makes the case so dangerous is the shifty way the hospital argues. Some previous cases in New Jersey had resulted in withdrawal of care and treatment from a patient on the grounds that his or her guardian had evidence that is what the patient would have wanted--and they were just carrying out their wishes.

The hospital was arguing, according to Malone, that "the issue is not whether treatment should be withdrawn but whether physicians should be forced to provide futile medical care when they believe that such treatment is against the standard of care and inhumane." Further, the public interest is served," the hospital argued, by "promoting dignity when death is inevitable and elevating the quality of life over longevity."

Malone concludes, "The decision to continue or terminate life support systems is not left to the courts. The position of the hospital argues that the court take the role of surrogate decision maker. The hospital seeks to have the court exercise its judgment in determining the proper course of treatment for Mr. Betancourt, a task...outside the role of this court." Decisions regarding medical treatment, he concluded, are to be left to the guardian--Mr. Betancourt's daughter.

In other words Judge Malone ruled that patient autonomy belongs to the patient or his/her surrogate decision maker. It cannot be "usurped by the courts or the hospital or doctors," as Smith writes.

"The treatment the guardian seeks is in furtherance of the quintessential purpose of medicine; extending the life of the patient," Smith explains. "In this sense, it is non-elective and the hospital seeks to stop it--not because it won't extend Mr. Betancourt's life--but because it probably will.

"Hence, the treatment is fulfilling its purpose. If the hospital won the case, doctors and bioethicists would, in effect, have been given the right to declare that the life of a patient diagnosed in a PVS is futile, and once that principle became well established in law and medical ethics, such ad hoc health care rationing wouldn't end with catastrophically ill people such as this patient."

If you have comments, please send them to daveandrusko@gmail.com.