Is futile care required by EMTALA?

[Pure Anergy]

---

Members don't see this ad.

Just curious what the rest of you think about EPs refusing to provide futile care. One of my co-residents had a situation where the patient was obviously dying and the family was insisting that everything be done. The resident in question disagreed with the family's decision but felt obligated to go through with subjecting the patient to several painful, futile procedures because it was "their right to decide." The whole thing doesn't sit right with me. You've got pharmacists refusing to dispense Plan B because of their moral convictions, neurologists refusing to administer tPA to elderly patients because it would probably do more harm than good, and surgeons refusing to operate on people with multiple serious comorbidities because the patient probably wouldn't survive the operation. Of course, none of them have to abide by EMTALA. Does EMTALA really require that we do anything and everything a patient or family wants even if it's clearly futile and goes against our moral convictions? Have any of you ever refused to perform a procedure that a family or patient wanted, and how did that turn out?

 

[Rendar5]

Just curious what the rest of you think about EPs refusing to provide futile care. One of my co-residents had a situation where the patient was obviously dying and the family was insisting that everything be done. The resident in question disagreed with the family's decision but felt obligated to go through with subjecting the patient to several painful, futile procedures because it was "their right to decide." The whole thing doesn't sit right with me. You've got pharmacists refusing to dispense Plan B because of their moral convictions, neurologists refusing to administer tPA to elderly patients because it would probably do more harm than good, and surgeons refusing to operate on people with multiple serious comorbidities because the patient probably wouldn't survive the operation. Of course, none of them have to abide by EMTALA. Does EMTALA really require that we do anything and everything a patient or family wants even if it's clearly futile and goes against our moral convictions? Have any of you ever refused to perform a procedure that a family or patient wanted, and how did that turn out?

If it's truly futile, simply don't even offer it to them or explain it to them; and document why various procedures will do more harm than good. You tell them everything that can be done is being done. However, I mean truly futile, like no benefit. As in CPR on a blunt traumatic arrest. Tubing someone doesn't really count in my mind.

It might help if you explain what the scenario is.

 

[docB]

Good question. I would think that futile care would not be required under EMTALA but as we all know it has been poorly defined on purpose by the government to keep the mandate as broad as possible.

I think the real weakness for EPs in this situation is that we don't have a long term relationship with the patient on which to base the decision about care being futile. In most cases we could be portrayed as making a snap judgement to withhold treatment. That would hurt us at trial.

 

[thaddeuspope]

This question was directly addressed by the Fourth Circuit in the 1994 Baby K case. That case is still good law. Nothing in the statute or the regulations has changed such that the answer would be different in 2012. The only difference in many cases is the inpatient exception (articulated in the 2003 regulations and confirmed by HHS in 2012). Often futile treatment situations arise in the ICU (i.e. for inpatients). EMTALA does not apply to such patients.

Thaddeus Mason Pope, J.D., Ph.D.
Director, Health Law Institute
Associate Professor of Law
Hamline University School of Law
MS-D2017, 1536 Hewitt Avenue
Saint Paul, MN 55104-1237

E: [email protected]
T: 651-523-2519
F: 901-202-7549
W: www.thaddeuspope.com

 

[xaelia]

That case applies to a slightly different version of "futile" – the denial of ventilatory support to an anencephaly infant with a tracheostomy. Withholding the vent would result in death, whereas providing the vent would be expected to allow the victim to potentially live. In that case, a hospital was attempting to pre-emptively establish its authority to deny further (likely uncompensated) care to a disabled infant with a limited but unknown life expectancy.

On the other hand, if you have a patient who appears likely to die regardless of intervention, then there is no stabilizing medical care available to provide under EMTALA. If were unable to cease providing futile care, we'd still be doing CPR on cases from residency.

 

[thaddeuspope]

Agreed. In much of the critical care and bioethics literature, the situation you are referring to is described as PHYSIOLOGICAL FUTILITY. If the emergency medical condition cannot be stabilized, then there is probably no duty to attempt.

But be careful to distinguish between [A] those situations where there is no chance (scientifically, logically) that intervention will work and those situations where it just seems improbable or imprudent or contrary to accepted standards. EMTALA likely requires stabilization in the latter situations.

 

[FutureInternist]

If it's truly futile, simply don't even offer it to them or explain it to them; and document why various procedures will do more harm than good. You tell them everything that can be done is being done. However, I mean truly futile, like no benefit. As in CPR on a blunt traumatic arrest. Tubing someone doesn't really count in my mind.

It might help if you explain what the scenario is.

Couldn't this come back to harm the doc in a major way. All that is needed is a 2nd cousin twice removed who shadowed a nurse for a day to say "How come they didn't try....."
As personally reprehensible it may be, is sticking to your guns on such a level worth the possibility of a major lawsuit

 

[Rendar5]

Couldn't this come back to harm the doc in a major way. All that is needed is a 2nd cousin twice removed who shadowed a nurse for a day to say "How come they didn't try....."
As personally reprehensible it may be, is sticking to your guns on such a level worth the possibility of a major lawsuit

They can always say that about futile care. If it's futile, the answer can always be "we didn't do it because it wouldn't have helped"

 

[AmoryBlaine]

I would always err on the side of resuscitation.

If a patient arrives with an active DNR or advanced directive and are critical I just verify with the family that this is still the wish and start doing my best palliative care. Most people are fairly reasonable especially if you sell that you want to relieve pain/anxiety/air hunger etc.

If not even if they look like they are on death's door I would full court press unless it was a truly futile situation (blunt traumatic arrest has been mentioned).

Easier to let this get sorted out in the ICU. I don't see this as a cop out at all.

 

[GeneralVeers]

I would always err on the side of resuscitation.

If a patient arrives with an active DNR or advanced directive and are critical I just verify with the family that this is still the wish and start doing my best palliative care. Most people are fairly reasonable especially if you sell that you want to relieve pain/anxiety/air hunger etc.

If not even if they look like they are on death's door I would full court press unless it was a truly futile situation (blunt traumatic arrest has been mentioned).

Easier to let this get sorted out in the ICU. I don't see this as a cop out at all.

Except that you've cost society hundreds of thousands or millions of dollars, and prolonged someone's pain and suffering in the process.

 

[blackavar]

How much is this really an EMTALA issue? I understand there's a sub-discussion going on here regarding whether or not to provide futile care to a presenting patient, and I'm not making a comment about that. I don't think this is an EMTALA issue. My general understanding is you're providing a medical screening exam and stabilizing therapy prior to transfer or discharge, and I don't think you're going to discharge or transfer a patient who's actively dying in front of you, so I don't see the EMTALA issue here...unless I'm mis-interpreting the question. Also, for the sake of arguement, EMTALA doesn't cover nor define "appropriate therapy," meaning you can't be sued under EMTALA for making the "wrong" decision, only for not even considering the situation. EMTALA is a broad law to force institutions to evaluate a patient that presents within a 250 ft radius of their ED. If you evaluate a patient and decide no treatment is the best course, you've still provided a medical screening exam and stabilizing therapy to your best ability and therefore satisfied EMTALA.

 

[deleted65604]

I've transferred 90 year olds out with ruptured AAA's. In retrospect,it was truly futile.

 

[StevieStud]

I've transferred 90 year olds out with ruptured AAA's. In retrospect,it was truly futile.

Why?

We transfer children and young adults to the big Level 1. We know they are futile. Most never survive the transport. Those that do, lets just say the final outcome is not always that good. But they are children/young. We can't give up.

But 90 year old?

 

[docB]

How much is this really an EMTALA issue? I understand there's a sub-discussion going on here regarding whether or not to provide futile care to a presenting patient, and I'm not making a comment about that. I don't think this is an EMTALA issue. My general understanding is you're providing a medical screening exam and stabilizing therapy prior to transfer or discharge, and I don't think you're going to discharge or transfer a patient who's actively dying in front of you, so I don't see the EMTALA issue here...unless I'm mis-interpreting the question. Also, for the sake of arguement, EMTALA doesn't cover nor define "appropriate therapy," meaning you can't be sued under EMTALA for making the "wrong" decision, only for not even considering the situation. EMTALA is a broad law to force institutions to evaluate a patient that presents within a 250 ft radius of their ED. If you evaluate a patient and decide no treatment is the best course, you've still provided a medical screening exam and stabilizing therapy to your best ability and therefore satisfied EMTALA.

You bring up a good point and a lot of this discussion has really revolved around the overall liability of not administering futile care in the ED rather than the specific EMTALA issues. However if the plaintiff alleges an EMTALA violation in addition to their malpractice claim their suit becomes a lot more dangerous. And the language of EMTALA seems to make it relevant. It says you are required to give all the stabilizing care you can and makes no mention of situations of futility. In general when we limit care it's with the consent of the family. If we refuse to give that "care" did we fail to give all the stabilization in our capability? Maybe.

I've transferred 90 year olds out with ruptured AAA's. In retrospect,it was truly futile.

Why?

We transfer children and young adults to the big Level 1. We know they are futile. Most never survive the transport. Those that do, lets just say the final outcome is not always that good. But they are children/young. We can't give up.

But 90 year old?

My system transfers these futile brain bleeds all the time. Our problem is you can't get an internist to admit a brain bleed without a consultant even if the family doesn't want treatment. It usually has to do with work avoidance but the answer is always "What if they change their minds?"

 

[Stitch]

I've done both EM and now PICU, and I think that end of life care and deciding what's futile is the hardest part of our jobs. In general it's much more difficult to have these discussions in the ED setting unless the family comes in and just says 'stop.' Or if they've given this topic a lot of forethought (HAHAHA) and come in with a plan. The default IMO should be to stabilize as best you can and transfer up to the unit, but to start the end of life discussion with the family about the expected course.

Most families I see are very grateful that their kid even made it to the unit, and I always point out the efforts of the ED staff. The liability seems too high when you may not have all the information about what is going on and what is considered futile, and the last thing you need, as DocB points out, is an angry family on top of a perceived EMTALA violation.

I'd also point out that I think it's different than a prolonged code situation. At some point you're going to have to call it and stop (even in a kid), and you're doing no favors to keep going. But that's a bit different than the original question.

 

[docB]

Good points. Just to differentiate a bit I would practically never suggest to a family that we limit efforts when there is an acute issue and therefore practically never with kids. It's the end stage whatever who comes in, often when the patient is on hospice and the family panicked at the very end who falls into this category for me.

To some degree the "standard of care" changes over time to help us with this. For example we no longer do thoracotomies on blunt trauma because it's futile. This is essentially denying that stabilizing measure but I can't imagine anyone being held liable, particularly under EMTALA, for not doing it. Another example would be high dose epi.

 

[deleted65604]

Why?

Because the family told me they wanted her transferred and because the surgeon gave me no grief about the transfer.

Cowardice on my part? I was at a job in a small town where the goal was no patient/family complaints at all necessary costs. I could just hear the complaint letter "Dr. Kevorkian there hated old ladies and wanted our loved one to die rather than treat her like a human being."

Cowardice on the part of the family? We are a compassionate society who judges themselves most critically on how they treat their elderly. How many people have the confidence in their own decision-making capacity and can say without equivocation, "My family and my Mom know beyond a shadow of a doubt that I love her, and letting her die is the best thing right now."

Perhaps the comments by Birdstrike's most recent article are relevant. We haven't as a society, even began to approach the issue of cost being relevant to medical care. Until people and elderly patient's have some skin in the game, their default decision is always going to be " @#!*% the torpedoes, full speed ahead." Until the government stops reimbursing for ambulance rides to the ER for demented, bed-bound nursing home patients, families will refuse to make hard decisions like when to go for comfort care.

I admitted a demented 80 year old bed-bound patient to the hospital a couple of months back. She was DNR/DNI. The paramedics walked up bagging her emaciated, lifeless, GCS of 3 body, because she obviously wasn't protecting her airway, or breathing adequately. Everyone involved, including the paramedics were thinking, "What the heck is this?" "What are we doing?" Strangely, the son continued to insist, oblivious to my strong encouragement, that he wanted us to give antibiotics for her obviously septic state. Until that ***** has to go mortgage his home, sell his car and beg other family members for money in order to keep her rotting corpse alive another couple of months, he will continue to think that prolonging life is always the compassionate thing to do.

Death used to be part of life. Grandma pooped her pants in the corner for several years, wasting away until she got sick one day, slipped into that merciful oblivion of delerium and then died a few days later of dehydration. Half of the kids died in childhood. Child-bearing was truly life-threatening. Bed bound elderly people were true burdens on their families and welcomed death. Compassion was defined as helping that transition to death be as comfortable as possible. I'm not advocating a return to this practice, but our society has gone to the opposite extreme.

I took care of a stage 4 colon cancer patient who was clearly dying. He got a bowel obstruction. When I told the wife he had a twisted bowel, she looked at me with uncomprehending horror, "How could that happen?" I wanted to say, "Maam, he is like the sinking Titanic, enjoy him for a few more minutes/days/weeks, ponder on the wonder and grandeur of the memories he helped you create, but embrace the idea that he won't be there very, very soon."