At Law: Abandoning a Waning Life

When it comes to getting a clear legal statement concerning their authority to forgo futile treatment, physicians must feel like Tantalus. Repeatedly in the past several years, this issue--certainly one of the most controversial in clinical ethics today--has appeared ready for judicial resolution. Yet a clear ruling on whether physicians may withhold or withdraw treatment patients and their families want still dangles just out of reach. The most recent experience in frustration came in April when a jury in the Suffolk County Superior Court returned a verdict for Massachusetts General Hospital and two of its physicians who had been sued for withdrawing life-support systems from an ailing patient over the objections of her daughter. The media trumpeted this as the case in which the court ruled that a hospital and its doctors need provide care they deem futile, even if the patient has asked for it.(1) But a closer look shows that Gilgunn v. Massachusetts General Hospital(2) belies such a description. First, all we have now is a jury verdict. Until an appellate tribunal reviews the case and rules on any objections to the evidence and the jury instructions, the verdict has little legal significance in itself. Indeed, the greatest danger at the moment is that people--especially physicians and hospital executives, but patients and their families as well--will be misled by media coverage into thinking that the law has now placed the decision about which treatments should be used (especially with critically ill patients) solely in physicians' hands. The greater reason why Gilgunn has thus far done little to resolve the question at issue--what may doctors do when they decide further treatment would be futile?--is that the lawyers structured the case to avoid a head-on examination of the issue. Treating Mrs. Gilgunn In mid-May 1989, Catherine Gilgunn, a seventy-one-year-old resident of Charlestown, Mass., fell in her home and injured her left hip. Three times before she had been hospitalized to have a broken hip repaired, and for several weeks she was reluctant to enter the hospital for treatment of what turned out was another break. Mrs. Gilgunn was generally in poor health, having suffered for years from many illnesses, including diabetes, heart disease, and chronic urinary tract infections. A few years earlier, she had been diagnosed with Parkinson disease, and in 1988 she had suffered a stroke from which she had fully recovered. Besides the previous hip operations, she had recently undergone a mastectomy for breast cancer. Mrs. Gilgunn's thirty-year-old daughter Joan, who had primary responsibility for her care, allowed her to delay having the hip examined for several weeks. When medical problems (related to the diabetes) began appearing, however, she took her mother to Massachusetts General Hospital on 7 June 1989. Nine days later (and before her surgery could be performed), Mrs. Gilgunn suffered two grand mal seizures. She experienced repeated seizures that were controlled by anticonvulsants until 29 June, resulting in brain damage and coma. In accord with the wishes of Mrs. Gilgunn's husband and five children, Joan took on the role of surrogate decisionmaker. Ms. Gilgunn made it clear to the physicians that her mother always said she wanted possible done medically. Nonetheless, after several weeks of treatment, her physicians decided that further care would be futile. With encouragement from the hospital's Optimum Care Committee, Mrs. Gilgunn's attending physician wrote a do-not-resuscitate order on her chart on 5 July despite the expressed wish that everything be done. Father Edwin Cassem, M.D., chair of the committee, took the view that the family's opinion was relevant because cardiopulmonary resuscitation was a genuine therapeutic option, and a social worker concluded that the family's unpreparedness for their mother's death did not justify mistreating the patient. …