Use of a DNR order over family objections: The case of Gilgunn v. MGH

After the U.S. Supreme Court's 1990 Cruzan [1] decision there is a clear co nsensus in our society that patients are free to decline any and all medica l treatments. Still unresolved is the pressing question of physician refusa l of requested life-sustaining treatment. What is involved in this issue is not only the limits, if any, on the exercise of self-determination, but th e role of professional integrity and the physician's commitment "to do no h arm" [2]. Despite a plethora of articles on the topic of physician refusal of ineffec tive or so-called futile treatment, there is still no definitive court ruli ng on the subject nor a consensus in the bioethics or medical communities o n the issue [3]. The early legal disputes between physicians and families o n refusal to provide requested treatment such as Baby L [4], Wanglie [5], o r Baby K [6] did not directly confront the issue. During the trial court he aring Baby L was transferred to a physician willing to treat her as the par ents requested. In Wanglie, the probate court addressed only the question o f replacement of the husband as guardian. The court was not asked nor did i t discuss the question of termination of treatment. Baby K, in which a federal appeals court upheld a mother's right to have ve ntilatory support for her anencephalic infant daughter, was decided on a na rrow statutory interpretation of the Emergency Medical Treatment and Active Labor Act's requirement that a patient presenting in an emergency room wit h a life-threatening medical condition must be stabilized before considerat ion of a transfer. That court never directly addressed the dilemma faced by intensivists who are asked to provide treatment thought to be ineffective or "futile" [7]. Decision making in such cases is neither an issue of physician domination n or solely that of patient self-determination. Choices about treatment optio ns are not exclusively scientific judgments. They are, rather, value assump tions about the nature and worth of life, and as such they belong to a broa der community than medicine alone. The question is not whether but which va lue judgments physicians may use in determining whether to follow patient d emands. It is not the personal predilections of the provider or the idiosyn cratic views of the patient but the common social sense of what practices a re to prevail. Those questions, as Tomlinson and Brody [8] note, signal a t urn away from individual toward social conceptions of the reasonableness an d worthwhileness of the proposed procedure. Giligunn v. Massachusetts General Hospital is the first case in which a jur y was asked to assess the legitimacy of the values involved in a physician' s refusal to attempt CPR in an elderly comatose patient with multiple medic al problems for whom the physician believed the procedure would be ineffect ive.