Use of a DNR Order Over Family Objections: The Case of Gilgunn v. MGH


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Abstract

After the U.S. Supreme Court's 1990 Cruzan [1] decision there is a clear consensus in our society that patients are free to decline any and all medical treatments. Still unresolved is the pressing question of physician refusal of requested life-sustaining treatment. What is involved in this issue is not only the limits, if any, on the exercise of self-determination, but the role of professional integrity and the physician's commitment “to do no harm” [2].Despite a plethora of articles on the topic of physician refusal of ineffective or so-called futile treatment, there is still no definitive court ruling on the subject nor a consensus in the bioethics or medical communities on the issue [3]. The early legal disputes between physicians and families on refusal to provide requested treatment such as Baby L [4], Wanglie [5], or Baby K [6] did not directly confront the issue. During the trial court hearing Baby L was transferred to a physician willing to treat her as the parents requested. In Wanglie, the probate court addressed only the question of replacement of the husband as guardian. The court was not asked nor did it discuss the question of termination of treatment.Baby K, in which a federal appeals court upheld a mother's right to have ventilatory support for her anencephalic infant daughter, was decided on a narrow statutory interpretation of the Emergency Medical Treatment and Active Labor Act's requirement that a patient presenting in an emergency room with a life-threatening medical condition must be stabilized before consideration of a transfer. That court never directly addressed the dilemma faced by intensivists who are asked to provide treatment thought to be ineffective or “futile” [7].Decision making in such cases is neither an issue of physician domination nor solely that of patient self-determination. Choices about treatment options are not exclusively scientific judgments. They are, rather, value assumptions about the nature and worth of life, and as such they belong to a broader community than medicine alone. The question is not whether but which value judgments physicians may use in determining whether to follow patient demands. It is not the personal predilections of the provider or the idiosyncratic views of the patient but the common social sense of what practices are to prevail. Those questions, as Tomlinson and Brody [8] note, signal a turn away from individual toward social conceptions of the reasonableness and worth-whileness of the proposed procedure.Giligunn v. Massachusetts General Hospital is the first case in which a jury was asked to assess the legitimacy of the values involved in a physician's refusal to attempt CPR in an elderly comatose patient with multiple medical problems for whom the physician believed the procedure would be ineffective.

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