Biacthics ISSN 0269-9702 Volume IONumbar I I996

FUTILITY AND THE OBLIGATIONS OF PHYSICIANS

BRADLEY E. WILSON

ABSTRACT
It is becoming increasingly common (at least in the United States)f o r doctors to appeal tofutilityjudgments as the basisf o r certain types of clinical decisions, such as the decision to withhold CPR. The clinical use offutilityjudgments raises two basic questions regardingfutility. First, how is the concept o f futility to be understood? Secondly, once we have a clearer understanding o ffutility, what role should determinations o ffutility p l y in clinical decision-making? Much of the discussion about the concept o f futility has centered on the value-ladenness o f futility judgments. I argue thatfutility determinations need to be distinguishedfrom t w o other opes o f value-basedjudgments, namely, identification of the goals o f treatment and treatment decisions based on an assessment of the benefits and burdens of treatment. If this distinction is sound, it suggests a very limited rolef o r futility determinations in clinical decisionmaking, a role which should serve to promote communicationbetween doctor and patient.
1.
INTRODUCTION

The bencfits of advanced medical technology are well-known to anyone acquainted with contemporary medicine. Defibrillation, mechanical ventilation, and kidney dialysis are just a few of the procedures that can restore, prolong, and improve people's lives. However, medical technology is not without its drawbacks. In the effort to conquer disease and prevent death, it has become increasingly difficult to determine when medical intervention is no ionger appropriate. This difficulty has surfaced recently in the United States in discussions about the concept of futility.' I want to examine that concept here and consider its role in clinical decision-making.
The debate about the concept of futility and its role in clinical decision making seems to be restricted to the United States. This may be because of the current emphasis in the United States on reducing the costs of medical care, since futility
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2. TWO CASES INVOLVING DETERMINATIONS OF FUTILITY

It will be helpful to begin by describing two cases that illustrate how the concept of futility might play a role in clinical decision-making. These cases will serve as points of reference in the discussion that follows. Consider the first case: An obese 53-year-old woman is in the ICU with adult respiratory distress syndrome. She has been on a ventilator for six weeks. During that time, her condition has been slowly deteriorating and she is now unconscious most of the time, exhibiting a low lcvcl of consciousness only on rare occasions. Her physicians belicvc that the likelihood of her being weaned from the ventilator, and thus leaving the ICU, is negligible. Thcy believe that therapy should not include CPR if the patient has a catdiac arrest, on the grounds that providing CPR would be futile. However, her daughter refuses to agree to a DNR order, insisting that everything possible be done for hcr mother. The attending physician considers writing a DNR order against the daughters wishes. This case focuses on the futility ofproviding CPR in certain circumstances and thus is typical of the kind ofcase that has generated much of the discussion of futility in the medical literaturc.2 The second case is one that has received a great deal of media attention in the United States recently, the case ofBaby K: Baby K is an infant born with anencephaly, a condition in which the brain does not develop properly and the cerebral hemispheres are absent at birth. (Anencephalic infants have no mental function as normally understood; furthermore, there is no possibility of their

determinations can he used to deny or not offer expensive treatment at the end of life. I am indebted to John C. Fletcher for help in clarifying this point. See L.J. Blackhall, Must We Always Use CPR?New EnglandJournal ofMedicine 317,1987,1281-5;T. TomlinsonandH. Brody, Ethics and CommunicationinDoNot-Resuscitate Orders, New England Journal of Medicine 318, 1988, 43-6; S.J. Youngner, Who Defines Futility? Journal o j l e American Medical Association 260, 1988, 2094-5; D.L. Schiedermayer, The Decision to Forgo CPR in the Elderly Patient, Journal of the American Medical Association 260, 1988,2096-7; D.J. Murphy, Do-Not-Resuscitate Orders: Time for Reappraisal in Long-Term-Care Institutions, Journal of the American Medical Association 260, 1988, 2098-101 ;T. Tomlinson and H. Brody, Futility and the Ethics of Resuscitation, Journal of the American Medical Association 264,1990, 1276-1 280;J.C. Hackler and F.C. Hiller, Family Consent to Orders Not to Resuscitate: Reconsidering Hospital Policy, Journat of thc American MedicalAssociation 264,1990, 1281-3; S.J. Youngner, Futility in Context, JournaloJ the American Medical Association 264, 1990, 1295-6.
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FUTILITY AND THE OBLIGATIONS OF PHYSICIANS 45 developing any significant mental capacities. However, anencephalics have an intact brain stem, which is sometimes adequate to maintain the life-supporting functions of the heart, lungs, etc. The vast majority of anencephalics die within days of birth, but a small percentage survive for longer periods of time.) Soon after Baby K was born, she experienced respiratory difficulties, was intubated and placed on a ventilator. After several days on the ventilator, Baby Ks doctors suggested to the mother that treatment be discontinued and Baby K be allowed to die. Baby K s mother refused to agree, basing her refusal on her religious belief that all life is sacred and worth preserving. This prompted a hospital ethics subcommittee to look into the situation; the committee supported the position of the physicians on the grounds that continuing to provide ventilator care was futile. In the meantime, Baby K was transferred to a nursing home during a period when she was not experiencing respiratory distress, where she continued to receive medical care. However, on two occasions, Baby K required ventilator support and was readmitted to the hospital through the emergency room and given respiratory therapy for several weeks. The hospital petitioned the court for permission to refuse to provide emergency ventilator treatment in the future, in part on the grounds that such treatment was futile. The hospitals petition was denied. These cases raise two basic questions regarding futility. First, how is the concept of futility to be understood? In order to determine whether or not appeals to futility are relevant to making treatment decisions, we need to figure out what constitutes futile treatment. Answering this first question will require a careful consideration of how the values of both the physician and the patient can play a role in determining when a particular treatment is futile. Secondly, once we have a clearer understanding of futility, what role should determinations of futility play in clinical decision-making? The literature on futility focuses on two ways in which futility determinations might be used: 1) To justify not presenting the futile treatment as an option for consideration by the patient (or surrogate); or 2) To justify overriding the patients (or surrogates) previously expressed desire for the treatment in question. Does the determination that a given treatment is futile support either of these positions? Is there another role for futility determinations in clinical decision-making? O r should the concept of futility be banished completely from the clinical context?

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3. FUTILITY AND THE GOALS OF TREATMENT

Few writers on the subject of futility have ventured an explicit definition of futility or futile treatment. In most cases, discussions of futility focus on the many difficulties involved in defining the term, especially on the use of value judgments in determining futility and the probabilistic nature of medical outcomes on which futility determinations are based. Following Schneiderman, Jecker and Jonsens3 lead, we might turn to the Oxford English Dictionary for guidance. The main cntry under futile in the OED is: Incapable of producing any result; failing utterly of the desired end through intrinsic defect; useless, ineffectual, vain.* Futility, according to the OED, should be understood in terms of the capacity for producing a result, achieving an end, having an effect. To adapt this definition to the medical context, we need to determine what are thc relevant results, ends or effects. Presumably, this will vary from case to case, depending on the specific goals of treatment recognized in each particular case. The important point hcre is that the OED definition implies that the futility of a mode of treatment can be evaluated only with respect to some particular treatment goal. Many writers have recognized the importance of identifying treatment goals in making futility determinations. Youngner says that to delineate the meaning of futile in specific situations, we must first examine the potential goals of the medical intervention in que~tion.~ These potential goals include specific physiologicalgoals and the postponement ofdeath. Lantos et al. claim that when potentially achievable goals exist, treatment is not, strictly speaking, futile. Hackier and Hiller propose a strict sense of futility, where the relevant goals arc understood in terms of specific physiologic effect^.^ Schneiderman, Jecker and Jonsen, expanding on the OED definition discussed earlier, say that a futile action is one that cannot achieve the goals of the action, no matter how often repeated. Finally, Truog, Brett and
L.J. Schneiderman, N.S.Jecker, and A.R.Jonsen, Medical Futility: Its Meanin and Ethical Implications, Annals of Internal Medicine 1 12, 1990,949-54. L.J. Schneiderman, N.S.Jecker and A.R.Jonsen, ibid., p. 951, go on to suggest a definition of futility and futile that is based on the probability of achieving a result; they want to use these terms to describe any effort to achieve a result that is possible but that reasoning or experience suggests is highly improbable and that cannot be systematically produced. I will discuss the role of probability in futility determinations below. S. Youngner, 1988, op. cit., note 1, p. 2094. J . D. Lantos, et al., The IllusionofFutility in Clinical Practice, AmcricmJournal of Medicine 87, 1989, p. 83. J.C. Hackler and F.C. Hiller, op. cit., note 1, p. 1282. * L.J. Schneiderman, N.S.Jecker and A.R.Jonsen, op. cit., note 2, p. 950.

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FUTILITY AND THE OBLIGATIONS OF PHYSICIANS 47 Frader insist that '[;It is meaningless simply to say that an intervention is futile; one must always ask, "Futile in relation to what?"'g Given the central role that goals play in understanding futility, I propose the following characterization of futile treatment: a particular medical treatment is futile if that treatment is incapable of accomplishing any of the specific goals of treatment. In saying that futile treatment is incapable of accomplishing a treatment goal, rather than unlikely to do so, I am rejecting those accounts of futility that allow futility determinations to be made on the basis of low probabilities of successful outcomes. One issue to be addressed is why such accounts should be rejected. A second task will be to show how the preceding characterization of futility can be helpful in understanding the relation between value judgments and futility determinations. We will then be in a position to identify an appropriate role for futility determinations in clinical decision-making.
4. FUTILITY DETERMINATIONS AND VALUE JUDGMENTS

One of the most important questions that arises in connection with the concept of futility is the question whether or not determinations of futility ultimately rest on value judgments made by the physician." The importance of the question is apparent when we realize that physicians often rely on futility claims to justify not informing patients (or their surrogates) of possible treatment options or to just;@ overriding explicit requests for treatment. When decisions to override or not inform are based on value judgments made by the physician, an obvious ethical problem appears. If futility determinations are used to limit or override a competent patient's wishes or advance directives, and those determinations are based solely on the physician's value judgments, then the values of the patient would seem to be ignored in such contexts. Insofar as a failure to acknowledge a patient's values constitutes a failure to respect that patient's autonomy, any such uses of futility determinations are morally suspect. Those who have recognized a close connection between determinations of futility and value judgments made by physicians have generally drawn one of two conclusions. Some have argued that virtually all medical decisions involve value judgments, so the fact that futility determinations do so as well does not pose any special problems."
R.D. Truog, A.S. Brett, and J. Frader, 'The Problem With Futility', New Eng1andJ~urnalofMedin'ne 326, 1992, p. 1561. 10 See, for example, S. Youngner, 1988, OF. cit., note 1; T. Tomlinson and H. Brody, 1990, op. n't., note 1; R.D. Truog, A S . Brett, and J. Frader, ibid. l 1 See, for example, T. Tomlinson and H. Brody, 1990, op. cif., note 1, p. 1278.
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Others have suggested that this is a good reason to do away with the concept in clinical medicine." Before taking sides on this issue, we need to consider more carefully the relation between futility and the values of both the physician and the patient. The characterization of futility suggested earlier focuses on the goals of treatment. With this in mind, it can be seen that there are two ways in which value judgments might be involved in determinations of futility. First, values may play a role in determining the goals of treatment. The value attributed by a physician and by a patient to the patient's being in various states of health and illness will partly determine whether or not one or more of those states is considered a goal of treatment. For example, a previously active, but now permanently bedridden elderly patient in need of dialysis may put little value on continuing in his present condition; for him, being maintained in that condition may not be a goal of treatment. The physician, on the other hand, may think it worthwhile to maintain the patient in his present condition: that may be a treatment goal for the physician. The second way in which values may come into play is that they may influence the decision as to whether or not a given goal is actually worth pursuing under the circumstances. One may have a particular goal, but the burdens involved in pursuing that goal may be judged to outweigh the potential benefits. Here the relevant value judgments pertain more directly to how burdensome the treatment is, and this needs to be balanced against the probability of achieving the goal. Like the previous situation, physicians and patients may differ with respect to their valuations of the burdens of treatment vs. the potential benefits. 1 will argue below that recognizing these two ways in which value judgments are related to treatment goals allows us to keep such value judgments separate from determinations of futility. But are the two types of value judgments as distinct as I have suggested? It might be argued that one cannot identify goals of treatment without simultaneously considering the benefits and burdens of pursuing them. There is some plausibility to this objection, in that the process ofdeliberating about treatment decisions may not require one to separate carefully these two roles for value judgments. But their distinctness can be demonstrated in other ways. Suppose someone (a physician or patient) does not accept a particular goal of treatment on the grounds that the risks and burdens involved in pursuing that goal far outweigh the potential benefits of achieving it. We can pose to that person a hypothetical question: If there were no risks or burdens, would the
"See, for example, R.D. Truog, A.S. Brett, andJ. Frader, of. cit., note8, p. 1563.
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goal be worth pursuing? If the answer is yes, then presumably that goal is one that is positively valued, independently of whether it is actually worth pursuing under the circumstances. While it can be claimed that this newly-recognized goal is not worth pursuing because of the excessive burdens, it is still the case that two different value judgments are involved here. As we shall see, either or both of these two types of value judgments may play a role in determinations of futility. My position is that futility determinations ought not to be based on either. Let us consider in more detail the role of values in determining the goals of treatment. With regard to both the physician and the patient, whether or not something is accepted as a goal will depend on how that goal is valued. For example, a physician might reject the goal of maintaining a patient in a persistent vegetative state, on the rounds that the quality oflifc in that state is of no value to the patient? Similarly, a terminally-ill patient might agree to a DNR order on the grounds that her condition after CPR would not be something she valued. It is important to recognize that the: physician and the patient may differ with respcct to how they value different possible treatment goals, and thus they may differ with respect to what they take to be the treatment goals. Consider the Baby K case described earlier. There the disagreement between the physicians and Baby Ks mother can be seen to revolve around the acceptance of different treatment goals. The physicians do not have as a goal simply keeping Baby K alive. Baby Ks mother, on the other hand, believes that all life is sacred and thus of value; given her values, keeping Baby K alive is a goal of treatment. Clearly, values play an important role in determining what the goals of treatment are. However, it does not follow from this that values must be involved in determinations offutility;judgments about the goals of treatment are not the same asjudgments about whether or not a particular treatment is futile. Because a treatment can be judged to be futile only with respect to a given treatment goal, the values that influence the choice of goals need not play a role in the determination of futility: those values are involved prior to any consideration of futility. T o return to the Baby K case, it may be true that further respiratory therapy is futile with respect to the goal of providing Baby K a normal life (i.e., it cannot achieve that goal), but it would not be futile with respect to the goal of simply maintaining her life (ignoring the possibility that Baby K be considered dead in her current state). This case illustrates the fact that the physicians and patients values
l 3 See, for example, L.J. Schneiderman,

N.S. Jecker and A.R.Jonsen, op. cit., note

2, p. 952.
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regarding the goals of treatment do not bear directly on the determination ofwhether or not treatment is futile. One important implication of this is that disagreements about the goals of treatment should not be settled by appeals to futility. To do so would be to mislocate the source of the disagreement. It remains an open question whether physicians are ever permitted to override the wishes of the patient (or surrogate), e.g., on the grounds that the patients (or surrogates) view of the goals of treatment is irrational. However, the justification for doing so would have to be based on something other than the claim that treatment would be futile. Suppose, however, that there is agreement between the doctor and patient with respect to the goals of treatment in a particular case. For example, suppose that in the first case described above, the goal of treatment recognized by both the physicians and the patient (expressed before her deterioration) is to maintain the patient suffiAs the case ciently well to allow her to be transferred out of the ICU. was described, her physicians believe that it is very unlikely that she can be weaned from the ventilator. Does this mean that providing CPR in the event of a cardiac arrest would be futile?Would providing CPR achieve, or at least help to achieve, the goal of treatment in this case? Here we see how value judgments can become involved in a different, and potentially more problematic, way. As is widely recognized, certainty is rare in medicine; there are very few situations in which a physician can state with absolute certainty what will be the outcome of a particular situation. Thus, the assertion that providing CPR in this situation would be futile would appear to be based on a value judgment regarding the balance between the burden of providing CPR to the patient and possible benefit that might arise from such treatment. The characterization of futility I proposed earlier would not consider treatment in this case to be futile, insofar as there is some possibility of its contributing to achieving the goal of treatment. While providing CPR if the patient suffers cardiac arrest is not likely to contribute to the goal ofleaving the ICU, it is not incapable ofdoing so.* But why shouldnt CPR be considered futile in situations like this? Tomlinson and Brodys position seems reasonable: The real question can no longer be whether value judgments can be made concerning the provision of CPR or other medical techniques; rather, the question is

l4 In this case, i t would probably be necessary to reconsider the goals of treatment if the patient experienced a cardiac arrest. However, I think my general point still holds: value judgments based on probabilities will not be suficient for establishing that treatment is futile according to the characterization given earlier.

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which value judgments physicians may use in deciding whether to meet patients demand^'.'^ Tomlinson and Brody are primarily concerned to forestall objections to the use of futility determinations that are based on the fact that such determinations rely on value judgments by the physician. They give two main reasons in support of the claim that value judgments are an unobjectionable part of clinical medicine. First, they make the point just mentioned, namely, that there are no absolute certainties in medicine: physicians are constantly acting on the basis of their own value judgments. Thus, the use of value judgments in making determinations offutility should pose no special problem. Secondly, Tomlinson and Brody say that even if there were situations where we could determine that some treatment was futile with certainty (i.e. in the sense I proposed earlier), there might be other reasons to provide the treatment (e.g. to satisfy the familys desire to do everything). But, they continue, if physicians are obligated to provide treatment in such cases because they are not permitted to act on the basis of their own value judgments, then no request from a patient could ever be refused. This is clearly absurd; thus, the use of value judgments is permissible. The second of these points can be addressed brieff y. Tomlinson and Brodys concern that physicians not be enslaved to their patients is a valid one. Allowing physicians to act on the basis of their value judgments would help to allay this concern. But the relevance of this to futility determinations is unclear. Tomlinson and Brody are worried that physicians might be obligated to act for symbolic reasons or to provide psychological benefit for the family, if the patient or family so demand.17 In such situations, the disagreement is about whether or not acting for symbolic reasons or to provide psychological benefit to the family should be accepted as goals of treatment. As I have shown above, value judgments are relevant to such disagreements, insofar as the value placed on possible goals will determine whether or not they are actually accepted as goals. However, nothing follows from this about the acceptability of using value judgments to make futility determinations, since futility determinations take place only after goals have been identified. Tomlinson and Brodys first point is more challenging. If it is true that there are no situations in which treatment can properly be said to be incapable of achieving its goal, then my characterization of futility is not particularly useful. However, many authors agree that there are
l5 l6

l7

T. Tomlinson and H. Brody, 1990, OF.d., note 1, p. 1278. Ibid.,p. 1278. Ibid.,p. 1278.

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at least some situations that are futile in that sense (sometimes called physiologic futility).* In the final section, I will discuss a role for determinations of physiologic futility in clinical medicine. Here I want to make a more direct response to Tomlinson and Brodys claim about the pervasiveness of value judgments in clinical medicine, The main reason to be concerned about basing determinations of futility on the kinds of value judgments acknowledged by Tomlinson and Brody is that futility then simply becomes one end of a spectrum of the weighing of burdens and benefits of treatment. Because of this, determinations of futility may be used to mask the fact that certain actions in end oflife situations are based solely on the physiciansjudgment as to the burdens and benefits oftrcatment. Compare the following two statements:

(1) A physician is justified in overriding the expressed wishes of a (competent) patient to receive a given treatment if the physician judges that the burdens of treatment significantly outweigh a small possibility of benefit. (2) A physician is justified in overriding the expressed wishes of a (competent) patient to receive a given treatment if the physician judges that treatment to be futile.
If Tomlinson and Brody are right, there is no important difference between these two claims: futility determinations simply pick out one end of the spectrum of the balance of burdens and benefits of treatment. But the potential for ignoring the values of the patient is much greater if one focuses on (2)rather than (1). At the very least, (1) raises clearly the ethical issue mentioned briefly earlier, namely, that overriding the expressed wishes of a competent patient is a primafacie violation of that patients autonomy. O n the other hand, if there is no important difference between (1) and (2), then the appeal to futility doesnt play any role in the justification of the physicians actions under circumstances such as these; the justification can be explicitly framed in terms of the physicians judgment about the relative value of treatment. This seems to be in part what Truog, Brett and Frader have in mind when they say that [t] he rapid advance of the language of futility in the jargon of biocthics should be followed by an equally rapid retreat.

See, for example, S. Youngner, 1988, OF. nt., note 1; R.D. Truog, A.S. Brett, andJ. Frader, op. cit., note 8. Zbid., p. 1563.
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5. A ROLE FOR FUTILITY DETERMINATIONS IN CLINICAL MEDICINE

I have argued that determinations of futility need to be distinguished from two other types of value judgments that often play an important role in clinical medicine: value judgments involved in determining the goals of treatment and value judgments involved in weighing the burdens and benefits of treatment. If the concept offutility is to play a role in clinical decision-making, it needs to be distinguished from decisions based on these two types of value judgments. The characterization of futility I have proposcd allows for the recognition of the category of physiologic futility. While Tomlinson and Brody are skcptical about this notion, other writers have given it at least a minimal role. Truog, Brett and Frader, for example, admit that 'CPR is physiologically futile only when it is impossible to perform effective cardiac massage and ventilation (such as in the presence of cardiac rupture or severe outflow obstruction)'.'' Of course, the number of situations in which this concept of futility will apply is very limited. Nevertheless, I believe that futility can still play an important role in clinical medicine. Suppose, then, that it is granted that in certain instances, particular treatments may be physiologically futile. What role should determinations of futility then play in clinical medicine? There is a distinct lack of agreement about the answer to this question. Some take the strong view that futile treatments need not even be considered?' Thus, if CPR were deemed to be futile in a particular case, the physician would be justified in writing a DNR order in the patient's chart without consulting the patient (or surrogate).Others say that, where there might be an expectation that a particular treatment will be provided, e.g., CPR, the physician should explain to the patient (or surrogate) that that treatment will not be provided because it is futile." O n this view, physicians are not obligated to provide futile treatment, but communication with the patient (or surrogate) about the decision not to do so is still in order. A third position is that because of the rarity of instances ofgenuinely futile treatment, and the potential for misuse, the concept of futility should play no role in clinical deci~ion-making.~~
*'Ibid., p. 1561. " See, for example, L.J. Blackhall, op. cit., note 1; D. J. Murphy, op. C I S . , note 1; J.C. Hackler and F.C. Hiller, op. cit., note 1; L.J. Schneiderman, N.S. Jecker and A.R. Jonsen, op. ci&.,note 2. See, for example, T. Tomlinson and H. Brody, 1988, op. cit., note 1; T. Tomlinson and H. Brody, 1990, op. cit., note 1; S. Youngner, 1990, op. tit,, note 1. 23 See, for example, J.D. Lantos et al., op. cit., note 5; R.D. Truog, A S . Brett, and J . Frader, op. cit., note 8.

''

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The very fact of disagreement about the role of futility determinations might lead us to the position that [qutility claims rarely should be used to justify a radical shift in ethical obligation^'.^^ I want to propose an alternative strategy. Rather than banishing the concept of futility from the clinical context, we might instead try to exploit futility determinations to identify situations in which further doctorpatient communication is needed. When a physician perceives a patients situation to be such that certain treatment options are futile, the burden should then be on the physician to establish that that perception is not in fact based on a disagreement about treatment goals or on a difference in the valuation of the burdens and benefits of treatment. Only after these possibilities have been explored with the patient (or surrogate), and the futility of the treatment has been clearly identified as being of the narrow physiologic sort, would the futility determination itself become an important factor in deciding on the course of treatment to be pursued. Under these circumstances, the physician would then have a basis for not providing the futile treatment to the patient. Thus, this proposal would not, for example, allow the physician to write a DNR order without consulting the patient (or surrogate). Furthermore, more would be needed than simply to inform the patient (or surrogate) that a decision has been made not to provide treatment on the grounds of futility; discussion would be required to rule out the possibilitiesjust mentioned. Recall the cases with which I began this discussion of futility. The first case involved a ventilator-dependent woman who was not likely to be weaned from the ventilator. The physician involved thought that providing CPR if she should arrest would be futile, and was considering writing a DNR order against the surrogates wishes. O n my proposal, it would be incumbent on the physician to establish that CPR was futile in the physiological sense, and that the disagreement between the physicians and the surrogate was not a disagreement about the goals of treatment or the relative burdens and benefits of CPR. This would require more discussion with the patients surrogate, p-romoting continued communication rather than putting an end to it. Ideally, the physician and surrogate would be able to come to an agreement about what the goals of treament should be and whether or not CPR would be of any benefit to the patient. In the Baby K case, it is clear that the disagreement revolved around a difference in the goals of treament. While my proposal would not resolve that disagreement, at least it would be helpful in identifying the basis of the disagreement, and it would make clear

24 J.D.

Lantos et al., op. cit., note 5, p. 81.

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the inappropriateness of relying on a determination that treatment is futile to resolve a dispute about the relevant goals of treatment. The two cases presented as examples of the use of futility determinations in clinical decision-making are not genuine instances of medical futility as I have characterized it. However, I still think that determinations of futility could play the role that some physicians have suggested in a very limited number of cases: such determinations may in the end justify not providing certain types oftreatment to some patients. More importantly, though, futility determinations would scrve to increase physician-patient communication and shared decision-making, rather than to shore up the unilateral decision-making power of the physician. ACKNOWLEDGMENTS

I am indebted toJohn C. Fletcher, James G. Lennox, Paul Ziff, and

an anonymous referee for helpful comments on earlier drafts of this paper.

Department o f History and Philosophy of Science University o f Pittsburgh

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