Although the case of M.W. presents difficult ethical and medical questions, the legal issue is fairly straightforward.  Simply put: Do the physicians have a legal duty to provide life-sustaining medical treatment (“LSMT”) they consider medically inappropriate due to medical futility?  In the case of M.W., the answer likely is “no,” but depends in part on relevant state law. 

In general, physicians have no legal obligation to provide treatment they find medically inappropriate.  For example, there is no question that “a physician would not be obligated to honor a patient’s request for magnetic resonance imaging (“MRI”) for complaints of a bump on their head.”[i]  As one commentator has explained, “[e]ven civil malpractice standards do not require a physician to render useless interventions.”¹  Rather, civil malpractice standards require that physicians use reasonable medical judgment, in accordance with the standard of care, when prescribing treatment or otherwise caring for a patient.  It is not within the standard of care to prescribe treatment that physicians know or reasonably believe will not be beneficial.  Accordingly, physicians do not have a legal obligation to provide medically futile treatment.  In this case, it is clear that M.W.’s physicians considered the parents’ request for LSMT for M.W. medically inappropriate and futile and they told the parents as much. 

Because the physicians already were providing the treatment they now thought was futile, however, the physicians found themselves in the position of having to take affirmative actions to “deny” continuing or providing additional treatment.  Generally, doing something to a patient, such as removing a feeding tube, requires the patient’s (or a surrogate’s) consent.  Here, the physicians did not have the consent of M.W.’s parents to stop treatment.  As a result, when M.W.’s parents refused to consent to LSMT being withdrawn from M.W., the physicians took steps to resolve the impasse by requesting a consultation from the hospital’s ethics committee.  Unfortunately (for all involved), the ethics committee gave an equivocal answer, which was then misinterpreted by the physicians.  The ethics committee advised that the physicians defer to the parents’ wishes “unless there is consensus among the caregivers that treatment is both futile and causing a burden of pain and suffering.” 

Based on the facts, there was consensus among the caregivers that the treatment was futile and likely was causing M.W. pain and suffering.  Therefore, the ethics committee decision implicitly supported the physicians’ position, or, at the very least, did not definitively defer to the parents’ wishes.  This lack of clarity from the ethics committee, along with likely uncertainty about the legal support for withdrawing LSMT against a patient’s (or surrogate’s) wishes,[ii] caused the physicians to continue treatment they thought was medically inappropriate. 

Had the physicians sought advice of legal counsel, they may have garnered sufficient comfort regarding their potential liability such that they would have followed their clinical instincts and withdrawn the LSMT in spite of the parents’ wishes.  Medical futility cases have been presented in the context of litigation both prior to LSMT being withdrawn and after.  Providers have been increasingly successful in the courts in both situations. ^{2, [iii]}  In post-withdrawal cases, patient surrogates often are unable to “establish that the standard of care requires continued LSMT” and/or “establish causation and damages,” and judgments against physicians tend to occur “only where the provider’s conduct is outrageous, [such as] when LSMT is withdrawn in an egregiously insensitive manner.” ²  Thus the physicians in this case could have chosen to withdraw the LSMT from M.W. (with or without clarification from the ethics committee) and taken their chances in the inevitable lawsuit from M.W.’s parents.  Most physicians, however, would prefer to know prior to the withdrawal of LSMT that their actions will not give rise to liability.  Therefore, physicians (or the institutions where they practice) might seek declaratory relief (a binding adjudication that establishes the rights of the parties).[iv]  While this solution may seem the most practical, some well-known yet dated and often distinguishable decisions have given the false impression that courts will not permit physicians to withdraw LSMT over a patient’s (or surrogate’s) wishes, and many are reluctant to even ask a court for permission to do so. 

One such case is the Baby K case,[v] which is distinguishable from the case of M.W. in that it involved a baby who presented to the hospital’s emergency department in an “emergency medical condition.”  Under federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA), the hospital was obligated to stabilize Baby K’s condition.  In the case at hand, M.W. was an inpatient and did not present to the hospital’s emergency department in an emergency condition.  Accordingly, EMTALA is not applicable and continued LSMT for M.W. would not be required under the statute.       

In more and more states, physicians are able to get comfortable that they can withdraw LSMT over a parent’s objection without having to go to court for a decision on their specific case.  In fact, most states have now enacted statutes expressly permitting health care providers to refuse and possibly override a patient’s request for LSMT.  The Texas Advance Directives Act (TADA), which is consistent with the American Medical Association’s recommendations regarding resolution of disputes about medical futility,[vi] is the most often cited example of such a statute.  Notably, following TADA’s procedure for resolving disputes between physicians and patients, affords physicians immunity from civil and criminal prosecution.  The procedure is as follows:

●    the physicians must obtain review of the case by the institution’s ethics committee and the physicians involved in the patient’s care cannot be involved in the ethics committee’s decision 

●    the physicians must provide treatment during this review 

●    if the ethics committee agrees with the physicians, then the physicians must continue treatment for ten days following the decision, during which time the patient may seek to have his/her care transferred to another physician; though a patient (or surrogate) can ask a court to extend the ten day period and the court may grant such request if “there is a reasonable expectation that a physician or health care facility that will honor the patient’s [wishes] will be found”[vii]

●    if the patient (or surrogate) cannot find another physician willing to provide the LSMT he/she desires during the ten day (or extended) time period, the physicians may withdraw treatment without fear of liability.

Had the M.W. case occurred in Texas (or another state with a law like TADA), the physicians could have withdrawn LSMT from M.W. without fear of liability if it followed the prescribed process.  However, the physicians would have been required to ask the ethics committee to provide a clear, unequivocal decision regarding the propriety of continuing LSMT.  If the M.W. case occurred in another state, the physicians also may have been able to rely on a state statute for the authority to withdraw treatment over M.W.’s parent’s wishes.[viii]  If the case occurred in a state without an applicable statute, or in a state with an ambiguous applicable statute, the physicians would be wise to seek a declaratory judgment from a court that it could withdraw LSMT from M.W.[ix]