Medical, ethical, and legal aspects of end-of-life dilemmas in the intensive care unit

Jonathan Wiesen; Christopher Donatelli; Martin L. Smith; Laurel Hyle; Eduardo Mireles-Cabodevila

doi:10.3949/ccjm.88a.14126

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TABLE 1

Select clinical ethics terms and definitions

Term	Definition
Autonomy	A patient’s right to self-determination and to make personal medical decisions.
Justice	Similarly situated patients should be treated similarly. The distribution of resources should be fair and based on medical need and the likelihood of a “good” medical outcome.
Beneficence	Medical treatments should be provided to benefit a patient.
Nonmaleficence	The principle of “do no harm.” This pertains to the potential burdensomeness of medical treatments. A balance between beneficence and nonmaleficence should always be considered when providing medical treatments and care.
Decision-making capacity	A patient’s cognitive abilities to understand information and communicate medical decisions.
Implied consent	A situation in which a reasonable person would consent to medical care. It is relevant in a situation where a patient is unable to make his or her preferences known, no surrogate decision-maker can be identified, and failure to immediately provide medical care would risk loss of life or limb.
Medical futility	“Inability of a medical intervention to fulfill any of the patient’s expressed goals and/or achieve any beneficial physiologic outcomes.”^a Note: this is a concept that can be difficult to define or quantify and is often an area of uncertainty, subject to debate.

↵a From Chow GV, Czarny MJ, Hughes MT, Carrese JA. CURVES: a mnemonic for determining medical decision-making capacity and providing emergency treatment in the acute setting. Chest 2010; 137(2):421–427. doi:10.1378/chest.09-1133

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TABLE 2

Select medicolegal terms and definitions

Term	Definition
Medical law or health law	An area of law, which can be construed broadly to pertain to medicine and healthcare, including confidentiality, negligence, termination of treatment, and torts in the practice of medicine and clinical care.
Competency proceedings	Hearings conducted to determine a person’s mental capacity.
Negligence	The omission to do something that a reasonable person would do, or the doing of something that a reasonable and prudent person would not do. The failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Actionable negligence involves the breach or nonperformance of a legal duty; essential elements are duty, breach, proximate cause, and harm.
Malpractice	Professional misconduct or unreasonable lack of skill. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession.
Medical futility	Varies by jurisdiction and may be fact-specific. There is no overarching, agreed-upon legal definition.
Medical directive	A document that expresses a patient’s wishes regarding various types of medical treatment in several different situations where the patient may become incapacitated and thus unable to make or communicate such decisions on their own. This document can grant a power to make medical care decisions to another by means of a power of attorney, healthcare proxy, or living will.
Surrogate medical decision-maker	A person empowered by a medical directive, statutory law, or a court of competent jurisdiction with making medical decisions for a patient who lacks decision-making capacity.
Implied consent	Consent that is not expressed and manifested by explicit and direct words but is gathered by implication or necessary deduction from the circumstances or from the conduct of the parties. One example is an adult patient with decision-making capacity who voluntarily offers his arm to a healthcare provider for a vaccination.

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TABLE 3

Select legal decisions related to end-of-life care

Case	Decision
Terry Schiavo, 1990–2005	A series of federal and state court decisions, ending in 2005 when a court decision allowed the removal of a feeding tube from an incompetent patient who had suffered an anoxic brain injury. The patient’s husband requested withdraw of the patient’s feeding tube and the trial court found that there was clear and convincing evidence that Ms. Schiavo would not have wanted a feeding tube, based on prior oral statements Ms. Shiavo had made to family members.
Texas Advance Directives Act, 1999	Provides in relevant part that, “A physician, or a health professional acting under the direction of a physician, who participates in withholding or withdrawing life-sustaining treatment from a qualified patient in accordance with this subchapter is not criminally liable or guilty of unprofessional conduct as a result of that action unless the physician or health professional fails to exercise reasonable care when applying the patient’s advance directive.” (§ 166.044) and that, “If an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient, the physician’s refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review” (§ 166.046).
Death With Dignity Act, 1994	Permits mentally competent, terminally ill patients to obtain a prescription from their physician for a lethal dose of drug provided certain conditions are met.
Patient Self Determination Act, 1990	Applies to institutions that receive Medicare or Medicaid funding and requires that patients must be informed of their rights regarding medical decision making, including the right to refuse life-sustaining treatment. Such institutions are also required to inquire as to whether patients have an advance directive and to documents any advance directive in the patient’s medical record.
Cruzan v. Director, Missouri Department of Health, 1990	US Supreme Court Case holding that, “(1) the United States Constitution did not forbid Missouri from requiring that clear and convincing evidence of an incompetent’s wishes to the withdrawal of life-sustaining treatment; (2) state Supreme Court did not commit constitutional error in concluding that evidence adduced at trial did not amount to clear and convincing evidence of patient’s desire to cease hydration and nutrition; and (3) due process did not require state to accept substituted judgment of close family members absent substantial proof that their views reflected those of patient.”
Bouvia v. Superior Court, 1986	California decision that a competent 28-year-old quadriplegic patient had right to removal of nasogastric feeding tube inserted against her will.
Bartling v. Superior Court, 1984	California decision that a competent 70-year-old, seriously ill man had right to the removal of respirator.
California Natural Death Act, 1976	First state law establishing a formal procedure to allow certain terminally ill competent adult patients to refuse or have withdrawn life-sustaining interventions.
Quinlan, 1976	Supreme Court of New Jersey decision (70 N.J. 10, 355 A.2d 647 (NJ 1976)) holding that, “upon the concurrence of the guardian [here, the patient’s father] and family of Karen [Quinlan], should the responsible attending physicians conclude that there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital ‘Ethics Committee’ or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor on the part of any participant, whether guardian, physician, hospital or others.”