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.