No Sense, Lots of Dollars

Twenty-five years ago, discussions of medical futility were the rage in bioethics circles. The discussions petered out when it became clear that futility was in the eye of the beholder: physicians and patients often had very different ideas about what futility meant, depending on what they hoped medical treatment would accomplish.
In one case that generated considerable publicity, physicians sought to turn off the ventilator that was keeping 86-year-old Helga Wanglie alive. They argued that the ventilator was futile treatment since it would never allow Mrs. Wanglie, who was in a persistent vegetative state, to regain consciousness. Mrs. Wanglie’s husband, however, argued that keeping his wife alive—supplying the oxygen that her heart needed to keep on beating—was the goal of treatment. And by that standard, the ventilator was performing admirably. The court to which the physicians presented their case did not address whether the treatment was futile; it merely ruled that Mr. Wanglie was the rightful spokesperson for his wife and his wishes should be followed.

A second problem with futility is that it is a good deal easier to identify after the fact—the patient died, ergo the treatment didn’t work—rather than in advance. Because futility was proving elusive, medical ethicists stopped talking so much about it and focused instead on ascertaining the patient’s goals of care. The prevailing wisdom came to be that doctors should provide any treatment that was consistent with those goals. Ethics consultations were used to mediate disputes between families and physicians over whether particular treatments could achieve the desired goals. But physicians continued to be bothered by the nagging feeling that at least some of the treatments they provided were morally wrong: they caused needless suffering as well as outrageous costs without much, if any, benefit. A new study just out puts the futility debate back on the table.

The authors of the study used a focus group of 13 doctors who work in intensive care units, the site of 20% of all deaths in America, to agree on a definition of futility. They came up with four reasons for assessing a treatment as futile. The patient was imminently dying, the patient would not be able to survive outside an ICU, the burdens of treatment greatly exceeded the benefits, or the treatment could not possibly achieve the patient’s explicit goals. They then asked physicians at a large medical center in Los Angeles to evaluate each of their ICU patients every day and indicate whether the care they were providing was futile, using these four criteria. In one fell swoop, the authors got rid of the two problems with previous futility studies—sort of. They used a prospective design, asking for evaluations in real time, not after the fact. And they defined futile care, albeit by unilateral decree.

Over a 3-month period, the investigators collected data on 1125 patients cared for in one of 5 different ICUs by a total of 36 critical care doctors. They found that 123 patients (11%) were perceived by their physicians to be getting futile treatment at some point during their ICU stay. Another 98 patients (8.6%) got “probably futile treatment.”

What characterized the 123 patients whose doctors were convinced they were getting futile care? Their median age was 67 and 42% were on Medicare. They were more likely to be older and sicker than the rest of the group. The majority (68%) died before hospital discharge; another 16% died within 6 months; almost all the remainder were transferred to a long-term care facility, dependent on chronic life support. The total cost of futile hospital care for these 123 patients was $2.6 million.

In light of these results, it may be time for critical care specialists to convene a consensus conference to see if they can agree on the criteria for futility. Agreement by the majority of doctors who care for ICU patients would carry far more weight than the focus group comprised of 13 physicians whose opinions formed the basis of the current study. If a majority of the nation’s critical care experts came up with criteria for futility, whether the same ones used in this study or some modification, then Medicare would be in a good position to decide to pay only for clinical care that met the newly defined standard of care. 

Medicare would not be dictating what is appropriate care; it would not be interfering in the practice of medicine. Medicare would merely be restricting payment to services of established benefit, just as it does when it pays for a cardiac pacemaker or an implantable defibrillator only if patients meet standard clinical criteria. Patients could still opt for treatment their doctors deemed futile if they were willing to pay for it. At an average cost of $4004/day for ICU care, I wonder how many people would pursue this route.

Dr. Muriel Gillick, who will qualify for Medicare in three years, is a geriatrician and palliative care physician, and a professor in the Department of Population Medicine at Harvard Medical School. She has written four books for a general audience discussing ethical, medical, and other issues arising in old age, most recently “The Denial of Aging: Perpetual Youth, Eternal Life, and Other Dangerous Fantasies” (Cambridge, MA: Harvard University Press, 2006). She blogs at Life in the End Zone, where this post was initially published.

3 Responses to “No Sense, Lots of Dollars”

  1. Thaddeus Mason Pope

    The available studies show so much variability in what critical care clinicians think is appropriate and inappropriate, that consensus seems to be far away. The forthcoming ATS-SCCM guidelines carve out only incredibly narrow categories. Even PVS is not yet a bright line rule.

  2. Carol Eblen

    I believe that Thaddeus Mason Pope, the foremost expert and historian on Medical Futility and the Law in the USA is correct. His scholarship in this particular area “Medical Futility and the Law” is unequalled and is shared with the general public by way of this remarkable (neutral/non-political)academic blog that has recorded and preserved the history of “medical futility and the law” for all parties, even elderly Medicare patients, to read and to think about, and to educate themselves. The University of Google is cheap and wonderful and philosophically/politically neutral.

    I am one of Professor Pope’s oldest blog students by way of age (86) and maybe by way of time spent reading and commenting on his blog articles covering this subject matter.

    I have read Dr. Gillick’s comments on DNR Code Status and am sorry that she didn’t expand her comments, as have other geriatric physicians in the past, to point out that DNR Code Status is often misused to limit or deny “indicated” treatments for elderly patients. As far back as December 2002, an Article in the Journal of the American Geriatric’s Society indicated: “Patients with DNR orders were significantly less likely to be transferred to an intensive care unit, to be intubated, or to receive CPR. In some scenarios, the presence of a DNR order was associated with a decreased willingness to draw blood cultures, central line placement, or blood transfusion The presence of a DNR order may affect physicians’ willingness to order a variety of treatments not related to CPR.”

    It is all in one’s perspective. Dr. Gillick appears to argue for a solution “a standard of care for “medical futility” that will be provided by the physicians who specialize in critical care that will prevent futile and cruel over treatment of the elderly and the end of their lives and also solve the “fiscal futility problems” for the policy makers who are trying to protect the financial health of the Medicare program for the American people.

    Dr. Gillick realizes that any standard that defines “Medical Futility” that would be developed by Medicare administrators and/or private insurance administrators, and not physicians, would be immediately suspect and condemned as “rationing” to save $$$$$ and would be politically unacceptable to both political parties. She looks for a solution to achieving the goals of the 1991 PSDA.

    But! As Dr. Pope points out, it is unlikely that the Medical Profession, itself, could ever develop a standard for Medical Futility that would have any legal significance. Medical Futility does impact the legal rights of Medicare Patients as to their movement between the two different “legal” standards of care created by The Congress and Medicare, i.e. Curative Care where everything possible is done to try to cure the patient or palliative care/transition to hospice when the statistical odds and the “educated prognosis” indicate that curative care is damaging and non-productive.

    From the perspective of a widow of a Medicare/TricareforLife Patient who believes her late husband, a Veteran of three wars and Agent Orange Presumptive, was over treated for profit and subjected to a unilateral covert DNR being placed in the hospital chart for the purpose of hiding a second mistake made in outpatient care, I am troubled that the bio-ethics community seem to be unaware or unconcerned that covert and overt (default) DNR Code Status is being misused right now, today, to shorten the lives of the elderly for whom the hospitals/physicians KNOW there will be no further reimbursement from Medicare/private insurers for any further treatment because of error, mistake, exceeding the DRG Cap, or non beneficial over treatments.

    In reading my new Medicare&You official U.S. government Medicare Handbook, I realize that Medicare tells me on page 56 only “Some of the items and services that Medicare doesn’t cover include: ……” and, of course, it doesn’t mention “errors” or DRG Caps, or the complications, thereof.” I see on page 118 that .”Doctors, other health care providers, and suppliers don’t have to (but still may) give you an ABN for services that Medicare never covers.” This is WHY Medicare patients who are the subjects of medical errors NEVER even know that they have become charity patients for the hospitals in which they are being treated. Can this be justified as moral public policy?

    I am for Obama Care. I would have preferred his original version of “single pay.” I am happy with my Social Security and my Medicare. I understand that we need to make changes to actually implement the original goals of the 1991 PSDA but I hate this under-the-radar irrational rationing/withholding of life-extending care for the elderly that has been precipitated by many years of cruel over treatment of the elderly for profit by some members of the AMA –who seem, collectively and individually, always, prepared to protect bad Doctors under the principle that good physicians become the victims of lawyers when bad physicians are exposed.