Futility and The Care of Surgical Patients: Ethical Dilemmas

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World J Surg

DOI 10.1007/s00268-014-2592-1

Futility and the Care of Surgical Patients: Ethical Dilemmas


Scott B. Grant Parth K. Modi Eric A. Singer

Societe Internationale de Chirurgie 2014

Abstract Futility has been a contentious topic in medi- of inadequate physicianpatient communication, these
cine for several decades. Surgery in critical or end-of-life authors have advocated for methods of improving com-
situations often raises difficult questions about futility. In munication and strengthening the patientphysician rela-
this article, we discuss the definition of futility, methods for tionship. Finally, we discuss the utilization of consultants
resolving futility disputes, and some ways to reframe the who may be of use in resolving futility disputes: ethics
futility debate to a more fruitful discussion about the goals committees, palliative care specialists, pastoral care teams,
of care, better communication between surgeon and and dedicated patient advocates. Involving these specialists
patient/surrogate, and palliative surgical care. Many defi- in a futility conflict can help improve communication and
nitions of futile therapy have been discussed. The most provide invaluable assistance in arriving at the appropriate
controversial of these is qualitative futility which describes treatment decision.
a situation in which the treatment provided is likely to
result in an unacceptable quality of life. This is an area of
continued controversy because it has been impossible to Introduction
identify universally held beliefs about acceptable quality of
life. Many authors have described methods for resolving The discussion of medical futility became prominent and
futility disputes, including community standards and controversial in the medical community in the 1980s [1].
legalistic multi-step due process protocols. Others, how- Since that time, many aspects of the concept of futility
ever, have abandoned the concept of futility altogether have continued to spark debate. The definition of futility,
as an unhelpful term. Reframing the issue of futility as one its philosophical basis, clinical application and methods by
which futility questions are addressed are all contested
areas. While some authors have proposed strategies to
understand and solve futility issues [2, 3], others have
S. B. Grant and P. K. Modi have contributed equally towards this abandoned hope of arriving at an answer and instead
study. have reframed the question to one about communication
between the patient (or proxy) and provider [1, 4].
S. B. Grant  P. K. Modi  E. A. Singer
Department of Surgery, Rutgers Robert Wood Johnson Medical The concept of futility and the questions it raises are
School, New Brunswick, NJ 08901, USA more important now than ever in the American health care
system. Improved technology and critical care techniques
P. K. Modi  E. A. Singer have given medicine the ability to prolong life in the most
Division of Urology, Rutgers Robert Wood Johnson Medical
School, New Brunswick, NJ 08901, USA dire of circumstances. These technological improvements,
however, have come during an era of constant cost
E. A. Singer (&) awareness and continuous pressure on the healthcare sys-
Section of Urologic Oncology, Rutgers Cancer Institute of New tem to limit expenditures.
Jersey, 195 Little Albany Street, Room 4563, New Brunswick,
NJ 08903, USA The ethical principles underlying medical futility are
e-mail: eric.singer@rutgers.edu especially pronounced in the surgical care of patients.

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World J Surg

Surgery is often sought or considered in severely ill qualitative and quantitative futility. Quantitative futility,
patients in whom futility discussions are most relevant. often considered synonymous with physiologic futility,
Furthermore, surgical intervention has great potential for relies on the scientific assessment of the probability of
harm to the patient and routinely requires balancing the success. An intervention with an exceedingly low proba-
ethical principles of beneficence and nonmaleficence. bility of success, such as 1 in 100 or 1 in 1,000 is con-
Finally, surgery requires the consent of multiple agents: sidered futile by some but not others. Most authors do not
patient, surgeon, and anesthesiologist. Questions of patient give a numerical threshold for this probability, and the
autonomy and a physicians obligation to provide treatment decision must be made in the context of each individual
are common in futility discussions and can be especially patient. To arrive at the conclusion of futility, the clinician
complex in cases in which surgical intervention is being must rely on high-quality clinical evidence, when avail-
considered. able, and his or her experience and judgment when appli-
cable evidence is not available [7]. As in case-based
bioethics, a significant challenge to this approach is
Definitions of futility determining whether the case at hand is similar enough to
the prototype precedent cases to factor into the denomi-
The Oxford English Dictionary defines futility (from the nator. How many demographic, diagnostic, and laboratory
Latin word futilis, meaning that which easily melts or factors must match before quantitative futility can be
pours) as leaky, vain, failing of the desired end through employed is an important unanswered question.
intrinsic defect [5, 6]. In discussing futility, it is important Imminent demise is a category of futility describing an
to distinguish it from similar terms. Schneiderman et al. [7] intervention in a patient who can be expected to die prior to
first distinguished between effect and benefit. Effective hospital discharge [2, 9]. For example, an intervention on a
treatments, if not beneficial, may still be futile. Although patient with multi-system organ failure that may improve
an intervention may have an anatomic, physiologic, or the function of one system can be considered futile if the
biochemical effect on a patient, it must benefit the patient patient is expected to die soon, regardless of the success of
as a whole to avoid being designated futile. In modern that intervention or the number of times it is applied [9, 11,
futility discussions, this distinction has hinged on identi- 12].
fying goals of care. Interventions that do not benefit a Qualitative futility refers to an intervention that, even if
patient by achieving a goal of care (often a regain of successful, will result in an outcome of insufficient or
function, improvement in quality of life, or palliation of a unacceptable functional status. As our medical culture has
symptom) can be considered futile, even if they do have a placed a premium on patient autonomyand given the
measurable effect [7]. However, when the patient or sur- variety of moral and cultural beliefs held by our patients
rogate makes the prolongation of life itself the primary identifying universally acceptable quality outcomes is
goal, the most burdensome interventions will potentially impossible, making qualitative futility the most contro-
seem reasonable even if they cannot reverse the underlying versial type of futility. All medical decisions involve an
cause of the patients illness or condition. analysis of benefit and risk, and patients appropriately
Futility must also be distanced from the impossible make this determination with guidance from their physi-
(walking to the moon), implausible (teleportation), or cians. Patients are free to evaluate and accept potentially
unlikely (long-term survival for a patient with diffusely debilitating results or side effects when deciding on a
metastatic pancreatic cancer) [7, 8]. Hopelessness can be therapy. However, some argue that there is an extreme at
confused with futility, but hope is an emotional response to the end of the spectrum of poor results: continued bio-
a situation and not an objective determination. Rationing logic life without conscious autonomy [7]. These authors
can also be confused with futility [1, 9]. Rationing is an argue that if the patient cannot achieve any life goals
attempt to optimize the use of limited resources except for continued physiologic survival, an intervention
when treating a group of people. Rationing has also been should be considered qualitatively futile.
used to constrain health care expenditures. Futility, in
contrast, is a determination made regarding a course of
action for an individual patient, not a group of people or Patient autonomy and surgeon conscience
society as a whole [8].
The strictest definition of futility, described by Toml- Helft et al. [1] identified the often-unstated goal of defining
inson and Brody [10], is physiologic futility. Physiologic futility: to apply that definition in a clinical scenario as
futility refers to a treatment that cannot be expected to justification for a physician to unilaterally withhold or
provide any medical benefit to the patient and should not be withdraw the treatment, even over the objections of a
offered. Schneiderman et al. [7] distinguished between competent patient. This emphasizes the adversarial context

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of futility discussions. Historically, there has been a debate Mechanisms for resolving futility disputes
in the literature, with no consensus reached, on who ulti-
mately should decide whether a procedure is offered. This Although futility may be difficult to define, what can be even
question can be approached from the framework of the more challenging is trying to successfully resolve futility
ethical principles of autonomy, beneficence, and justice. disputes when there is significant disagreement between the
Arguments for the physician being the ultimate arbiter health care team and the patient and/or surrogate decision-
of futility often make a principle-based argument. The maker(s). Many mechanisms have been developed to aid
principle of autonomy recognizes the patients right to self- clinicians in addressing these differences of opinion.
determinationto choose or refuse offered treatments. Community and/or institutional standards can be created
Those who believe the physician should ultimately decide proactively to define evaluation criteria for defining or
which treatments are futile argue that this principle cannot recognizing futility and establishing a process for
be extended to give patients the right to have access to any addressing futility claims on a case-by-case basis. One such
treatment they choose [9]. To force a physician to provide system was established by Baruch Brody and Amir Halevy
treatment he or she does not believe is appropriate would in Houston, Texas, at Baylor College of Medicine [12].
force the physician to violate his or her conscience. After convening an ad hoc group of the Houston Bioethics
Additionally, physicians must adhere to the principle of Network in August 1993, the Houston City-Wide Task
beneficence and provide interventions that they believe will Force on Medical Futility developed the Houston Policy
benefit their patients [13]. To allow patients to dictate for medical futility [12]. The policy-creating committee
medical therapy is to force physicians to become merely was dedicated to establishing a fair procedural process that
extensions of a patients will. Furthermore, it may actually was inclusive of a diverse range of perspectives in its
limit patient autonomy by providing the illusion of choice creation, guaranteed patient or surrogate decision-maker
where one does not truly exist as well as deprive the patient input, reserved the right of patient transfer, and prevented
of the physicians counsel [1]. Proponents of the patients patient abandonment [12].
right to decide argue that only the patient can balance an The Houston policy requires patient or surrogate inclu-
interventions merit based on an evaluation of the risks and sion from the start, encouraging them to be present at the
benefits in the context of his or her personal values. institutional review mechanism and providing them with
Veatch and Spicer [14], proponents of the patient being adequate preparation time (at least 72 hours after notifi-
the ultimate arbiter of futility questions, argued that dis- cation) [12]. The policy prevents unilateral physician
agreements of futility can be scientific or valuative in nature. action so that any conflict not resolved by informal dis-
Scientific disagreements revolve around the accuracy or cussions must be referred to an interdisciplinary review
applicability of relevant data in the medical literature. system within the institution and requires the physician to
Despite the presumed objectivity of scientific data, they obtain a second opinion [12]. The policy preserves the
argued, scientific conclusions have nonscientific compo- patients right to transfer, either to another physician within
nents (i.e., the p value as a level of significance). On the other the same institution or to another institution [12]. The
hand, the patient and provider may agree that an intervention caveat is that the policy bans intrainstitutional transfers
has a 1 in 1,000 chance of success but disagree on the value of after an institutional determination of futility (to preserve
pursuing an intervention with those odds [14]. Veatch and professional and institutional integrity) [12]. It prevents
Spicer conceded that physicians, guided by medical evi- patient abandonment by stressing that even an institutional
dence, are considered experts by society and should be able determination that a particular intervention is futile results
to abstain from interventions that are determined not to have only in discontinuing or withholding that specific inter-
any effect. They argued, however, that the majority of futility vention while continuing all other medically appropriate
disagreements are disagreements about the value of an interventions [12]. The policy further adds that a care plan
effect. Physicians have no particular expertise, they argued, emphasizing comfort measures and preservation of patient
in determining the value of an outcome for a patient. The dignity is obligatory if futile interventions are to be dis-
benefit of an intervention is a judgment based on the beliefs continued or withheld [12].
and values people hold and about which people may dis- The Houston policy was supplanted by the Texas
agree. In this situation, Veatch and Spicer [14] argued, the Advance Directives Act of 1999 [15]. It provides a process
physicians judgment cannot be the deciding factor. for resolving conflicts between patients or surrogate deci-
For further discussion on surgeon conscience and sion-makers and health care providers regarding the per-
refusing to offer an intervention, please see the separate ceived futility of particular therapeutic interventions via an
article in this issue entitled, When is it Ethical to Say No institutional committee [15]. After following a protocol, if
to an Operation? the institutional committee decides that a particular level of

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treatment is inappropriate, the committee may override a the deliberation and resolution phase is to involve an
patient or a familys wishes for continued aggressive institutional committee (e.g., ethics committee), which
therapy and withdraw or withhold potentially lifesaving should have a lay representative and should have a full
interventions [15, 16]. The patient or surrogate must be hearing from the patient, proxy, or patient representative
given at least 48 hours advance notice of the committee [18].
meeting and have the opportunity to attend and receive a The fifth step, and the first in the second phase of
written explanation of the committee decision [15, 16]. If securing alternatives with irreconcilable differences,
the health care providers and the patient or surrogate involves transferring the patient to another physician
decision-maker cannot reach consensus, the physician must within the institution if the institutional process yields to
try to transfer the patient to another physician or institution the patients desires but the attending physician is not
[15, 16]. If the requested treatment is considered inappro- persuaded [18]. If instead the institutional process favors
priate by the committee, and no health care provider can be the attending physicians position, the patient may be
found to accept the patient in transfer, than the physician transferred to another institution [18]. The last step in the
and institution are not obligated to provide life-sustaining third phase of achieving closure occurs when no accepting
treatment after the 10th day after the written decision [15, physician or institution can be identified, perhaps because
16]. The patient or surrogate decision-maker can obtain a the request falls outside accepted professional standards
court-ordered extension but only if the court thinks it is and medical ethics. In these cases, such an intervention
likely that an alternate health care provider or health care need not be provided, although there may or may not be
institution can be found [15, 16]. The Act does not specify legal ramifications for this course of action [18].
the composition of the institutional ethics or medical
committee that reviews potential futility cases other than
stipulating that the attending physician of the case cannot Reframing the futility debate
be a member of the committee [15, 16]. Unlike the Houston
Policy, the Texas Advance Directives Act of 1999 does not The late great physician and philosopher Pellegrino [19]
require preliminary steps prior to appealing to the institu- viewed medical futility differently and recognized it as a
tional committee for a determination of inappropriate prudential guide for medical decision-making. Pellegrino
treatment [15, 16]. The reported experienced with the focused on futility as a method for determining what is the
Texas Advance Directives Act of 1999 shows that only a right and good healing action for a particular patient. It
minority of Texas Hospital Association hospitals have used requires weighing a treatments effectiveness, benefits, and
the law to review specific cases and that most cases were burdens in the context of an individual patient [19]. As
resolved before the 10-day waiting period [17]. evaluating effectiveness relies on empirical studies pub-
The American Medical Association (AMA) Council on lished in the medical literature as well as physician
Ethical and Judicial Affairs also suggested a procedural knowledge and experience, it is thus best determined by the
due process approach as the best method for dealing with physician [19]. Evaluating benefit focuses on the patients
disagreements regarding futility determinations [18]. The subjective idea of what is good for him and how a treat-
AMA separated the process into three phases. The first ment helps him achieve his lifes goals and thus is best
phase involves four steps aimed at deliberation and reso- determined by the patient [19]. Evaluating burden requires
lution [18]. The second phase has two steps to secure an examination of the physical, psychological, fiscal, and
alternatives when there are still irreconcilable differences other costs/side effects of a treatment, and therefore is best
[18]. The third and final phase has one step to achieve assessed by both physician and patient [19].
closure when all alternatives are exhausted [18]. When the balance of the effectiveness, benefit, and
The AMAs first step is a preventive step of deliberating burden is favorable treatment is ethically justified, whereas
and negotiating a shared understanding between patients, if the balance is unfavorable treatment is not defensible
proxies, and doctors regarding what constitutes futile [19]. As only effectiveness is solely within the domain of
treatment versus therapies within acceptable limits [18]. the physician, futility determinations are not unilateral but
The advantage is that if serious disagreements arise the are made via collaboration with the patient or surrogate.
patient can be transferred preemptively to avoid later Patient requests for futile therapies need not be honored,
conflicts [18]. The second step is joint or shared decision- with the possible exception of compassionate use (e.g.,
making using outcomes data when possible and incorpo- temporarily providing treatments to prolong a patients life
rating the physicians and patients (and/or proxys) goals so that personal, religious, or spiritual obligations may be
for treatment within the process of informed consent [18]. fulfilledsuch as allowing family and friends to arrive and
The third step is to involve a consultant or patient repre- say a final goodbyeprovided the treatment is not exces-
sentative to facilitate discussions [18]. The fourth step of sively burdensome, a finite time frame is set, and the

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patient or surrogate consents) [8]. Futility definitions and concept of surgical buy-in and how surgeons initiate
processes focusing on which group can trump the operations with a preoperative expectation that their
authority of the other are divisive and produce adversarial patients will continue with therapy postoperatively based
rather than complementary physicianpatient relation- on a bidirectional contract. However, the extent to which
ships [8]. surgeons make their expectations explicit varies [21]. It is
In a previous article in this Journal, Grossman and important before operating that surgeons and their patients
Angelos [4] reframed the futility debate as a failure to have a mutual understanding of what they are hoping to
communicate effectively and a breakdown in the doctor achieve with the operation as well as how to proceed if
patient relationship. After describing the case of one of his their goals are not met or complications arise. Therefore,
patients, Angelos told the family that continued treatment another important time to have a goals of care discussion
would be futile and suggested comfort care measures [4]. is prior to surgery.
To his surprise, the family was offended and questioned Operating on patients with advanced malignancies or
how someone outside the family could weigh the burdens multiple co-morbidities often raise issues similar to those
versus the benefits of treatment. They became suspicious seen in futility debates. For example, the management of
and lost trust [4]. Using the word futile alienated and advance directives, including do not resuscitate (DNR)
isolated the family [4]. Grossman and Angelos [4] recog- orders, in the perioperative setting requires planning and
nized invocation of the term futility as a power grab by effective communication [22]. Although a full discussion
physicians to resurrect paternalistic authority from the of perioperative DNR orders is beyond the scope of this
pendulum swing toward patient autonomy. Once futility is article, a brief review follows.
declared, it limits patient and family members from being Since 1976, DNR orders have been discussed in the
significant participants in future medical decision-making medical literature [23]. It was not until 1991, however, that
[4]. Using the term futility risks abandoning or mar- the ethics of perioperative DNR orders were explored
ginalizing patients and surrogates [4]. Grossman and [2426]. Cohen and Cohen [27] coined the phrase
Angelos stated that Because invoking the term futility required reconsideration, which even after two decades
worsens communication and lessens patient care we rec- is still the guiding ethical principle when addressing the
ommend that increased efforts be made to educate patients issue. The idea of required reconsideration is that patients
and their families regarding realistic expectations of the and health care providers should reexamine DNR orders
patients disease and its prognosis [4]. Grossman and before surgery whenever possible [27]. The American
Angelos [4] concluded that the only ethical option is to College of Surgeons, American Society of Anesthesiology,
communicate and honestly disclose prognosis, offer the and the Association of Operating Room Nurses have
best medical advice, and not hide behind futility. published guidance to their members, declaring that the
One of the ubiquitous phrases used in end-of-life care is automatic suspension of DNR orders in the perioperative
discussion of goals of care. This concept is useful in that setting is unethical [2830].
it promulgates open dialogue and discussion between the Required reconsideration often results in a negotiated
physician and the patient and family. Furthermore, it suspension of the DNR order with reinstatement when the
encourages collaboration and shared decision-making orders are again appropriate [27]. Achieving the objec-
instead of the more divisive and adversarial debate over tive(s) of surgery would be limited if patients were allowed
whether a therapy is futile. An important question is when to die of reversible cardiac or respiratory arrest in the
to have goals of care discussions. This type of conver- perioperative setting. Perioperative arrest often results in a
sation is especially helpful at the start of the doctorpatient better outcome because of earlier identification and more
relationship or at the time of a new diagnosis, prior starting easily reversible causes that a negotiated suspension of the
a new therapy, at the time of disease progression or DNR order often occurs [27]. Required reconsideration
recurrence, when new side effects or toxicities arise, or permits patients to go to surgery with a DNR order still in
whenever the surgeon senses a divergence between what he place. It also acknowledges, though, that if surgery can
or she believes are possible or reasonable outcomes and help achieve the patients goals the DNR order does not
what he or she perceives to be the patients or surrogates preclude surgery [22, 2731].
unrealistic expectations. Too often goals of care con- In addition to procedural mechanisms to address futility
versations occur only once there have been complications concerns, as well as improved communication through
or when the patients health is in a rapid downward spiral. mechanisms such as goals of care discussions and required
Just as the process of obtaining informed consent helps reconsideration of perioperative DNR orders, another
build the surgeonpatient relationship, so too does having a mechanism for improving successful reconciliation of
shared vision for the desired outcomes of the surgical futility conflicts is the appropriate use of consultants. As
enterprise. Schwarze et al. [20] have written about the discussed earlier, the Houston policy requires that an

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attending obtain a second opinion before bringing a futility having received futile treatment and the other 15 % of
case for institutional review [12]. In addition to another patients perceived as having received futile treatment
physician bringing a fresh perspective to the case, the were in severely compromised health states, often still
Houston policy also recognized that social workers, dependent on life-sustaining treatments [34]. They esti-
chaplains, patient representatives and advocates, and ethics mated the cost of futile treatment in critical care during
consultants or committees are often useful resources. this 3 month period at $2.6 million [34]. The study con-
These consultants bring considerable specialized knowl- cluded that futile critical care is common and costly, but
edge, skill, and experience to difficult cases. They can also the question remains whether it was futile for the
enter the case without the same emotional investment that patients and whether this treatment should be restricted
can potentially bias decision-making and can facilitate [34].
discussion and reverse communication breakdowns. It is One additional tool that surgeons can use for discussions
helpful for the surgeon to suggest bringing these individ- with patients and surrogate decision-makers is the Ameri-
uals onto the care team proactively, rather than having can College of Surgeons National Surgical Quality
them brought in reactively via institutional futility proce- Improvement Program (ACS NSQIP) surgical risk calcu-
dure mechanisms. By volunteering to bring in additional lator [35]. This freely available risk calculator utilizes
resources, it shows the patient and surrogates that the outcomes data from the NSQIP database to estimate the
physician is open to discussion and different viewpoints chances of an unfavorable outcome such as a complication
that he or she is still actively working toward achieving the or death after surgery. It uses data including the CPT code
best outcome for the patient. for the procedure, age, sex, functional status, and co-mor-
One additional group of practitioners that can play a bidities and risk factors (e.g., diabetes, hypertension
useful role in these situations is the palliative care team requiring medication, previous cardiac event, congestive
[32]. Bradley and Brasel [33] developed guidelines or heart failure, chronic obstructive pulmonary disease, dial-
triggers for identifying patients in the surgical intensive ysis, steroid use, ascites, sepsis, and body mass index,
care unit (SICU) who would benefit from palliative care among others) to project the risk. It provides more evi-
services. The top five triggers for a palliative care con- denced-based outcomes data for surgeons to use to facili-
sultation identified were (1) family request; (2) futility tate discussions with patients. It would certainly help
considered or declared by the medical team; (3) family inform both surgeons and patients participating in the
disagreement with the medical team, advance directive, or efficacy/benefit/burden model of viewing futility as a
each other lasting [7 days; (4) death expected during the prudential guide [19, 36].
same SICU stay; or (5) SICU stay greater than 1 month
[33]. Incorporating the palliative care team can be a deli-
cate issue, as some patients and surrogates incorrectly see
Conclusions
this consultation as a sign of imminent death and doctors
giving up. It is therefore important to distinguish palliative
Futility has long been debated in the medical ethics liter-
care, which can be involved at any point in the disease
ature. The contentious nature of futility discussions has
process, including during active treatment with curative
prevented physicians and ethicists from arriving at a con-
intent, and hospice, where comfort is the primary goal and
sensus on the definition or application of futility in clinical
life-prolonging measures are usually stopped [32].
practice. Whether futility is thought of as an issue of
One of the reasons futility discussions become so
patient autonomy, physician conscience, or as a prudential
heated is the implicit assumption that they are merely a
guide, it is clear that it is a dilemma that will not readily be
disguise for cost-cutting and rationing. Huynh et al. asked
solved. Indeed, the mere use of the word futile tends
36 critical care specialists to perform a daily assessment
to stifle communication between health care providers,
of ICU patients and classify them as not receiving futile
patients, and families at a time when better understanding
treatment, probably receiving futile treatment, or receiv-
between these parties is essential. Improved communica-
ing futile treatment. There were 1,136 patients assessed
tion that begins at the start of the physicianpatient rela-
during a 3-month period (November 2012 to March 2013)
tionship, the use of consultations from ethics committees,
at the David Geffen School of Medicine, University of
palliative care specialists, pastoral care teams, and patient
California Los Angeles [34]. The assessments found that
representatives, as well as frank discussions with patients
80 % of patients were never perceived to have received
and families regarding the goals of care can help avoid
futile treatment, 9 % were perceived to probably have
futility conflicts and improve surgical outcomes.
received futile treatment, and 11 % were perceived as
having received futile treatment [34]. They found a Acknowledgment This work was supported in part by a grant from
6-month mortality rate of 85 % for patients perceived as the National Cancer Institute (P30CA072720).

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