¹ With the exception of the cases involving disputes over whether the surrogate is acting within the limits of reason and cases involving public health or other interventions for the benefit of third parties, the right of the patient or surrogate to refuse treatment is now well established in American law and Western medical ethics. ROBERT M. VEATCH, DEATH, DYING, AND THE BIOLOGICAL REVOLUTION (rev. ed. 1989) [hereinafter ROBERT M. VEATCH, DEATH AND DYING]; Robert M., Veatch, Limits of Guardian Treatment Refusal: A Reasonableness Standard, 9 AM. J.L. & MED. 427, 429-68 (1984)Google Scholar [hereinafter Robert M. Veatch, Limits of Guardian Treatment Refusal].

² Leslie J., Blackhall, Must We Always Use CPR?, 317 NEW ENG. J. MED. 1281, 1283 (1987)Google Scholar; John D., Lantos et al., The Illusion of Futility in Clinical Practice, 87 AM. J. MED. 81, 82 (1989)Google Scholar; John D., Lantos et al., Survival After Cardiopulmonary Resuscitation in Babies of Very Low Birthweight: Is CPR Futile Therapy?, 318 NEW ENG. J. MED. 91, 94–95 (1988)Google Scholar; Frank H., Marsh & Allen, Staver, Physician Authority for Unilateral DNR Orders, 12 J. LEGAL MED. 115, 116-20 (1991)Google Scholar; Donald J., Murphy et al., Outcomes of Cardiopulmonary Resuscitation in the Elderly, 111 ANNALS INTERNAL MED. 199, 204 (1989)Google Scholar; Donald J., Murphy, Do-Not-Resuscitate Orders: Time for Reappraisal in Long-Term-Care Institutions, 260 JAMA 2098, 2099–2100 (1988)Google Scholar; David L., Schiedermayer, The Decision to Forgo CPR in the Elderly Patient, 260 JAMA 2096, 2096-97 (1988)Google Scholar; Lawrence J., Schneiderman et al., Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INTERNAL MED. 949, 953 (1990)Google Scholar; Tom, Tomlinson & Howard, Brody, Futility and the Ethics of Resuscitation, 264 JAMA 1276, 1276-80 (1990)Google Scholar [hereinafter Tom Tomlinson & Howard Brody, Futility and the Ethics of Resuscitation]; Tom, Tomlinson & Howard, Brody, Ethics and Communication in Do-Not-Resuscitate Orders, 318 NEW ENG. J. MED. 43, 44 (1988)Google Scholar; Stuart J., Youngner, Who Defines Futility*, 260 JAMA 2094, 2094-95 (1988).Google Scholar

³ Lawrence J. Schneiderman et al., supra note 2, at 949-50.

⁴ For arguments supporting the claim that non-resuscitation decisions should not be referred to as “do not resuscitate” or “DNR” orders, see Robert M., Veatch, “Do Not Resuscitate” Orders, in THE PATIENT-PHYSICIAN RELATION: THE PATIENT AS PARTNER, PART 2 240-49 (1991)Google Scholar [hereinafter ROBERT M. VEATCH, THE PATIENT-PHYSICIAN RELATION].

⁵ This Article refers to a pursued or envisioned or relevant effect to make clear that virtually any intervention will have some effect on a patient. This Article refers to the class of interventions to which the care is labelled futile because it is believed by the clinician that it will not have the effect that the patient or surrogate desires or envisions. For example, CPR on a patient without heartbeat for three hours undoubtedly will do something to the tissues. It will not, however, restore cardiac function.

⁶ Stuart J. Youngner, supra note 2, at 2094.

⁷ Tom, Tomlinson and Howard, Brody, Futility and the Ethics of Resuscitation, supra note 2, at 1277.Google Scholar

⁸ A p-value is a measure of probability. “The letter P, followed by the abbreviation n.s. (not significant) or by the symbol (less than) and a decimal notation such as 0.01, 0.05, is a statement of the probability that the difference observed could have occurred by chance, if the groups are really alike.” JOHN M., LAST, A DICTIONARY OF EPIDEMIOLOGY 75 (1983).Google Scholar

⁹ See Wendy L., Schoen, Note, Conflict in the Parameters Defining Life and Death in Missouri Statutes, 16 AM. J.L. & MED. 555, 556-72 (1990).Google Scholar

¹⁰ ROBERT M. VEATCH, DEATH AND DYINC, supra note 1, at 43-44.

¹¹ We are aware of the dispute over whether clinicians are, in fact, knowledgeable about the medical facts relevant to their cases. Outcomes research suggests that clinicians may not always reflect accurately the current state of scientific medical knowledge. If the clinician or the consensus of clinicians is given the presumption of correctness regarding the medical science, we assume that this presumption is conditioned on the clinician having reasonable knowledge of the state of the relevant medical science.

¹² For a detailed analysis of why it is occasionally rational for the lay public to override or modify the estimate of the facts of even the consensus of scientific experts, see Robert M., Veatch, Consensus of Expertise: The Role of Consensus of Experts in Formulating Public Policy and Estimating Facts, 16 J. MED. & PHIL. 427 (1991).Google Scholar

¹³ In re The Conservatorship of Helga M. Wanglie, No. PX-91-283 (P. Ct. Minn. Hennepin County June 28, 1991).

¹⁴ Steven H., Miles, Informed Demand for “Non-Beneficial” Medical Treatment, 325 NEW ENG J. MED. 512, 513 (1991).Google Scholar See also Ronald E., Cranford, Helga Wanglie's Ventilator, HASTINGS CENTER REP., July-Aug. 1991, at 23Google Scholar; B.D., Colen, Fight Over Life, NEWSDAY. Jan. 29, 1991, at 63, 64–65.Google Scholar

¹⁵ There is some dispute about whether she actually announced these views to her family. According to one report, at first her husband claimed that she had not expressed her wishes and later indicated that she had. Steven H. Miles, supra note 14, at 513. The court's determination was that Oliver Wanglie knew his wife's “conscientious, religious, and moral beliefs intimately.” Helga M. Wanglie, No. PX-91-283, at 4. Later analysis will support the position that as long as she is not burdened by the treatment and there is no evidence that she objected to continuing life-support, her husband should be the one to determine whether such support produces a benefit. See infra text pp. 24-28.

¹⁶ B.D. Colen, supra note 14, at 64.

¹⁷ Id.

¹⁸ In re Quinlan, 355 A.2d 647 (N.J. 1976), cert, denied, 429 U.S. 922 (1976), overruled in part, In re Conroy, 486 A.2d 1209 (NJ. 1985).

¹⁹ See id. at 664-69.

²⁰ Id. at 669.

²¹ Judith, Areen, The Legal Status of Consent Obtained from Families of Adult Patients to Withhold or Withdraw Treatment, 258 JAMA 229, 233-34 (1987)Google Scholar; Robert M., Veatch, Limits of Guardian Treatment Refusal, supra note 1, at 449.Google Scholar

²² Richard A., McCormick & Robert M., Veatch, The Preservation of Life and Self-Determination, 41 THEOLOGICAL STUD. 390, 395-96 (1980).Google Scholar

²³ It should be noted here that life-sustaining care is an especially compelling subset of what we shall call “fundamental” care, that is, care that would be recognized by a consensus of the moral community as serving a “fundamental” interest, an interest that would be acknowledged even if the majority would not themselves desire it. We believe that life-prolongation would be recognized as a weighty concern even by those who would not themselves want life to be preserved in a particular set of circumstances.

²⁴ See e.g., In re Estate of Sidney Greenspan, 558 N.E.2d 1194 (111. 1990) (doctor's testimony that it is consistent with medical ethics to remove patient's feeding tube); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977) (encouraging more than mere “mechanical reliance on legal doctrine“); cf. Brophy v. New England Sinai Hosp., 497 N.E.2d 626, 638-39 (Mass. 1986) (hospital may refuse to cease providing nutrition and hydration if patient can be moved to a different facility or to the patient's home to carry out the patient's wishes); Childs v. Abramovice, 253 Cal Rptr. 530, 530 (Cal. Ct. App. 1988) (physicians may not be required to remove feeding tube against their personal moral objections if patient can be transferred to another physician to carry out conservator's orders).

²⁵ Steven H., Miles, supra note 14, at 513.Google Scholar

²⁶ See generally JEREMY, BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION, ETHICAL THEORIES: A BOOK OF READINGS (A.I. Meldev ed., 1967)Google Scholar; JOHN STUART, MILL, UTILITARIANISM AND OTHER WRITINGS (1962).Google Scholar

²⁷ See infra text pp. 28-31.

²⁸ The details of exactly when, if ever, justice would require violating the autonomy of one person to promote the interests of a member of a least well off group are complicated. We recognize that Rawlsian analysis subordinates the maximin principle to the principle of equal liberty. If health care allocation is perceived as coming under the maximin principle, then a Rawlsian would not accept the possibility of compromising autonomy to promote redistribution of the good. Not all analyses of justice, however, require such subordination of the maximin principle to the principle of equal liberty. Moreover, some people have held that distribution of health care is governed not by the maximin, but by the necessity of a minimum of health in order to have liberty. If health care allocation is required by the first principle, then physicians (who possess substantial liberty) can be expected to surrender some of that liberty to increase the liberty of those with much less. See JOHN, RAWLS, A THEORY OF JUSTICE 243-51 (1971)Google Scholar. Either treating health care under the first principle or rejecting the lexical ordering of the two principles would make possible a compromise of autonomy in order to provide life-prolonging care. This technical argument is not necessarily critical, since we do not rest our claim of the duty to provide care primarily on the principle of justice in the first place.

²⁹ A rational citizenry plausibly would also impose a duty not to use it in cases in which the one to be saved does not want it. Hence, the moral basis for the duty of the health professional not to treat without consent.

³⁰ Tom, Tomlinson & Howard, Brody, Futility and the Ethics of Resuscitation, supra note 2, at 1279.Google Scholar

³¹ See David C., Hadorn, Emerging Parallels in the American Health Care and Legal-Judicial Systems, 18 AM. J.L. & MED. 73 (1992).Google Scholar

³² Robert M., Veatch, Physicians and Cost Containment: The Ethical Conflict, 30 JURIMETRICS J. 461, 466–470 (1990).Google Scholar

³³ 42 U.S.C.A. §§ 1395-1395zz (West 1992).

³⁴ It is noteworthy that no decision had been made by Mrs. Wanglie's insurers to eliminate her care. To the contrary, formal commitments were made, rightly or wrongly, to fund her care. Thus, all parties acknowledged that, in this case, clinicians were not driven to oppose Mrs. Wanglie's care because of burdens created by lack of funding.

³⁵ John A., MacDonald, Is Health Care Rationing a Cure for Soaring Costs?, HARTFORD COURANT, Dec. 12, 1991, at A1Google Scholar; Edward M., Reingold, Oregon's Value Judgment, TIME, NOV. 25, 1991, at 37.Google Scholar

³⁶ Robert M., Veatch, Should Basic Care Get Priority? Doubts About Rationing the Oregon Way, 1 KENNEDY INST. ETHICS J. 187, 200 (1991).Google Scholar

³⁷ Diagnosis-related group, which is a Medicaid payment plan under which hospitals receive a lump sum payment on the basis of discharge diagnosis, without regard to actual treatment provided. See GEORGE J., ANNAS ET AL., AMERICAN HEALTH LAW 215-16, 234-48 (1990).Google Scholar

³⁸ Bouvia v. Superior Court, 241 Cal. Rptr. 239 (Cal. Ct. App. 1987).

³⁹ A working assumption in this discussion is that non-life-prolonging care, especially that not recognized as “reasonable” by a majority of society, does not entail the same urgency as do life-prolonging treatments. In the case of the former, it is reasonable to assume that less troubling alternatives exist to requiring clinicians to violate their consciences. An individual seeking such debatable care is more likely to be able to pursue other options for achieving his or her end, either within or outside of the medical profession. Arguably, if a willing lay person or organization were able to provide a desired life-sustaining treatment when no clinician was agreeable, then the patient's claim on the clinician would similarly diminish or cease altogether. The distinction between the treatment of desired and equitably funded life-prolonging and non-life-prolonging care rests both in a fundamental presumption in favor of life and in the implicit urgency of the former. These considerations are sufficient to require clinicians to provide life-sustaining care even, if they and society view such care as unreasonable.

⁴⁰ See, e.g., State v. Perricone, 181 A.2d 751 (NJ. 1962); Morrison v. State, 252 S.W.2d 97 (Mo. 1952).

⁴¹ See, e.g., In the Matter of Elisha McCauley, 565 N.E.2d 411 (Mass. 1991); Perricone, 181 A.2d at 759.

⁴² ROBERT M. VEATCH, THE PATIENT-PHYSICIAN RELATION, supra note 4; Robert M., Veatch, Limits of Guardian Treatment Refusal, supra note 1, at 465.Google Scholar

⁴³ Perricone, 181 A.2d at 758-59.

⁴⁴ John J., Paris et al., Physician's Refusal of Requested Treatment: The Case of Baby L, 322 NEW ENG.J. MED. 1012, 1012 (1990).Google Scholar

⁴⁵ Id. at 1014.

⁴⁶ Id. at 1013.

⁴⁷ See supra text accompanying note 21.