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58 New York Law School Law Review 347 (2013-2014)


Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that this treatment is non-beneficial and that continuing it would be medically and ethically inappropriate. Accordingly, the physician wants to stop such interventions and instead focus on comfort measures only.

While such conflict is frequent, in Section II, I establish that medical futility disputes can usually be prevented or resolved informally. In Section III, I turn to address the resolution of these intractable futility conflicts. In Section IV, I outline the three main legal approaches that states have taken with respect to healthcare providers unilaterally withholding or withdrawing life-sustaining medical treatment. I conclude by evaluating these three dispute resolution procedures.