ECMO, Futility, Conscience, and ‘Inappropriate Treatment’: Grounding and Justifying a Policy on ‘Futile’ Treatment.

Abstract: Attempts to establish a consensus definition of ‘medical futility’ have been unsuccessful. Given this, healthcare institutions in the US have been left to establish their own ‘futility’ or ‘inappropriate treatment’ policies or guidelines. This talk will examine one large Mid-Western Level 1 Trauma Center’s recent transition from a minimally value-laden futility policy (i.e., a physiological futility-based policy) to a more expansively value-laden policy (i.e., based on expected survivability to discharge). This transition was primarily made in response to advances in the development and utilization of life-sustaining technology (including ECMO) that have led to a significant increase in so-called ‘bridge-to-nowhere’ patients whose lives may be sustained for prolonged periods in the ICU setting, but are who are unlikely to be able to survive their hospitalization. This talk critically analyzes and defends the motivations and theoretical rationales for this change as well as the practical applications of this policy. We present and defend a conscience-based rationale for this more expansive futility policy and argue that, when applicable, claims of ‘futility’ or ‘inappropriateness’ are most often best justified when they appeal to the autonomy and conscience of the providers being asked to perform these treatments (rather than appealing to concepts such as ‘best interests’, ‘benefits vs burdens’, or ‘standards of care’). We then conclude by addressing the implementation of the revised policy in the case of ECMO-dependent individuals (including the justifications for non-escalation vs. withdrawal of treatment and the application of the revised policy in cases of conscious and capacitated patients).

Arthur Derse, MD, JD, FACEP – Director, Center for Bioethics and Medical Humanities, Medical College of Wisconsin