Rebuttal From Dr. Fine

Abstract

Ithank the editors and Dr. Truog for the opportunity to participate in this debate and hope our readers find it enlightening. The major argument leveled against the TADA is that it “excludes the involvement of the courts” and may be unconstitutional. The law does not exclude the courts, but directs the court to review matters it is most qualified to judge: compliance with procedure, not medical decision making. The most recent court arguments against TADA occurred in the Gonzales case that Dr. Truog previously criticized.1Truog RD Tackling medical futility in Texas.N Engl J Med. 2007; 357: 1-3Crossref PubMed Scopus (71) Google Scholar Plaintiff's attorneys alleged TADA violated both state and federal constitutions. But the court-appointed guardian ad litem (representing the interests of Baby Emilio) argued that TADA violated neither.2Catarina Gonzales, Individually and as next friend and agent on behalf of Emilio Gonzales, a minor child v. Daughters of Charity Health Services of Austin d/b/a Children's Hospital of Austin, A Department of Brackenridge Hospital et al. Guardian Ad Litem's Trial Brief on Legal Issues; filed for record at 7:20 pm on May 4, 2007 in the Probate Court, Travis County, TXGoogle Scholar In fact, no court has declared TADA unconstitutional after 10 years of use. Dr. Truog argues that judges provide more diversity and less potential bias than ethics committees, perhaps forgetting that judges secure their position either through political appointment or election. But a judge hearing a futility dispute, no matter how wise, cannot match the collective wisdom or diversity of an ethics committee and does not have expertise in medical decisions. The New Jersey Supreme Court in the Karen Ann Quinlan case recognized this when the justices endorsed the “value of additional views and diverse knowledge” that ethics committees bring to difficult cases. They further noted that judicial review of medical decisions “would generally be inappropriate, not only because that would be a gratuitous encroachment on the medical profession's field of competence, but because it would be impossibly cumbersome.”3Matter of Quinlan, 70 N.J. 10 (1976)Google Scholar In Washington v. Harper, the United States Supreme Court similarly endorsed the idea that medical treatment decisions belonged with the medical profession, not the judiciary.4Washington v. Harper, 494 U.S. 210 (1990)Google Scholar Dr. Truog notes that the law is most frequently used in urban hospitals, perhaps with unintended discrimination or bias. But large tertiary care hospitals at the pinnacle of the referral chain are almost always urban, and no evidence to support discrimination or bias is offered. In the report of 47 futility cases he refers to, counseling by ethics consultants resolved 37 cases without resorting to the full dispute resolution process that would allow unilateral withdrawal of inappropriate treatment. In the remaining 10 cases, the ethics committee approved unilateral withdrawal in 6 cases, but did not do so in 4 cases.5Fine RL Mayo TW Resolution of futility by due process: early experience with the Texas Advance Directives Act.Ann Intern Med. 2003; 138: 743-746Crossref PubMed Scopus (104) Google Scholar This 60%/40% split is hardly bias! The well-intentioned CHB policy that Dr. Truog proposes has several problems. The lack of a time frame for resolution encourages more prolonged treatment of the dying patient as a means to the surrogate's end. Granting the final say on the withdrawal of inappropriate treatment to hospital leadership turns physicians with our duty of fidelity to the patient into technicians subject to the unlimited demands of surrogates and the concerns of hospital leaders who may prefer avoidance of controversy. Finally, the physician is still subject to legal liability under the CHB policy. I hope this debate will lead to improvements in TADA as well as the CHB policy and similar policies, but in the face of the sometimes intractable ethical disagreements surrounding appropriate treatment of terminally or irreversibly ill patients, only TADA restrains legal liability and makes clear the responsibility of determining and following sound medical judgment in the best interest of the patient.