Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment

Thaddeus Mason Pope, University of Memphis

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First published in the Tennessee Law Review (Volume 71 No. 1)

Abstract

Over the past fifteen years, a majority of states have enacted medical futility statutes that permit a health care provider to refuse a patient’s request for life-sustaining medical treatment. These statutes typically permit the provider to unilaterally stop LSMT where it would not provide “significant benefit” or would be contrary to “generally accepted health care standards.” But these safe harbors are vague and imprecise. Consequently, providers have been reluctant to utilize these medical futility statutes.

This uncertainty probably cannot be reduced. Consensus on substantive measures of medical inappropriateness has proven unachievable. Only a purely process-based approach like that outlined in the Texas Advance Directives Act, has proven effective in inducing the conduct that medical futility statutes intended. Therefore, while the specific contours of TADA must be refined, policymakers in other states should look to the TADA as a model.