Care vs. a Physician's Right to
Decline to Provide Treatment
By Monica Sethi

On May 23, 1990, 86-year-old Helga Wanglie ("Mrs.
Wanglie") suffered a cardiorespiratory arrest that
rendered her permanently unconscious.1 Her physicians
determined she was in a persistent vegetative state and
would be permanently respiratory dependent.2 Oliver
Wanglie ("Mr. Wanglie"), Mrs. Wanglie's husband and judicially-
appointed guardian, and her children insisted on continued
ventilatory treatment against the hospital's
recommendation that the ventilator support be discontinued
because the continued course of treatment would render no
hope of recovery for her irreversible state.3 After an extended
period of time, when it became clear that the family would
not agree to terminate Mrs. Wanglie's treatment, the hospital
filed a probate petition to end the impasse.4 The hospital pursued
an indirect path towards its objective-rather than seeking
an order authorizing the attending physician to turn off
the ventilator, the hospital argued that Mr. Wanglie should be
replaced as guardian.5 The probate court declined to do so,
finding that Mrs. Wanglie's medical decisions were better made by her husband, than by a court-appointed third party.6
Mrs. Wanglie, still connected to the ventilator, died four days
after the court's ruling.7
Although the Wanglie court only ruled on the guardianship
matter, the case illustrates one aspect of conflict that
exists between patients and providers: who should have
authority in making the final decision when health care
providers contend that a treatment requested by family members
should not be carried out because it would be medically
ineffective or "futile," but family members want their loved
one to receive the treatment nonetheless?
Arefusal to comply with a patient's request for treatment
is a growing issue because advances in technology over the
past decades stretch the way people experience the end of
life.8 For instance, with the application of modern treatment
modalities, physicians are faced with patients who are not
going to recover, but who are not faced with imminent death
if placed on life-sustaining treatment. While some states
allow physicians to decline to provide treatment deemed to
be medically inappropriate or futile, other practitioners grapple
with the potential for legal ramifications associated with
the withdrawal of medically ineffective or futile treatment,
especially when medical futility is an undefined concept.
This paper discusses the extent to which a physician has
a right to decline a patient's request for treatment due to medical
futility or other reason. Part II of this paper describes
how patient-provider disputes regarding so-called futile care
at the end-of-life has evolved. Part III examines provisions
from all 50 states regarding the various reasons for which a
health care provider may refuse to comply with a patient's
demand for treatment, in addition to the various obligations
states impose on providers when they refuse to comply with
a patient's health care direction. Part IV discusses procedures
some states have enacted when there is a patient-provider disagreement
over requested care. Part V considers the Texas
Advance Directive Act as a model statue for other states that
want to address patient-provider disputes in a comprehensive
manner. Finally, this article concludes by noting that balancing
a physician's right to decline life-sustaining treatment
with a patient's right to access treatment may be perceived by
the majority of states as too much of a quagmire to tackle.
Background
The initial debate regarding patient-provider authority
dates back to the 1970s and arose in the context of withholding
or withdrawing life-sustaining medical treatment.9 The In
re Quinlan case highlighted the typical argument during that
time.10 Karen Ann Quinlan ("Quinlan") was a woman in a
persistent vegetative state whose father wanted to discontinue
her life-sustaining treatment since it "present[ed] no hope
of her eventual recovery."11 The New Jersey Supreme Court
held that Quinlan's right to privacy included the right to have
life-sustaining treatment withdrawn.12 In 1990, the U.S.
Supreme Court in Cruzan v. Director, Missouri Department of Health, recognized that a competent patient has an implicit right to decline life-sustaining treatment.13Asurrogate can
exercise a similar right on behalf of an incompetent patient,
although states can regulate the process of refusal.14
In the late 80s and early 90s, there were concerns that
certain medical interventions were not always appropriate.15
Leslie Blackhall, then a medical resident, argued that physicians
need not offer cardiopulmonary resuscitation as a treatment
in cases where it offered no known medical benefit or
where it was more likely to cause harm than good based on
the patient's physical condition.16 The American Heart
Association's Guidelines for CPR and Emergency Cardiac
Care also reported that CPR was futile for patients with
metastatic cancer, as several studies indicated that no patient
survived to discharge.17
By the mid-90s the representative case shifted from
physicians demonstrating a medical bias to treat the patient
with all medical means available to physicians choosing to
decline to provide treatment they deem medically futile. In
1994, the In re Baby K case provided an example of the medical
futility debate.18 Baby K was born in 1992 with anencephaly,
a congenital malfunction in which a major portion of
the brain, skull, and scalp is missing.19 Baby K had a brain
stem that allowed her to live with the aid of life-sustaining
treatment, but because she lacked a cerebrum, she suffered
permanent and irreversible unconsciousness.20 The attending
physician recommended to the baby's mother that aggressive
life-sustaining treatment be removed because it "would serve
no therapeutic or palliative purpose."21 The mother disagreed
and requested aggressive treatment.22 After about a month,
Baby K was transferred to a nursing home, but was readmitted
to the hospital three times with breathing difficulties.23
After the second readmission, the hospital sought declaratory
relief as to whether it was obligated to provide aggressive
medical treatment that it deemed "medically and ethically
inappropriate."24 The court limited its decision to statutory
interpretation, and explicitly stated that "[i]t is beyond the
limits of our judicial function to address the moral or ethical
propriety of providing emergency stabilizing medical treatment
to anencephalic infants."25
The American Medical Association Council for Ethical
and Judicial Affairs recommended that all health care institutions
adopt a policy on medical futility.26 Despite attempts to
identify the circumstances in which a medical intervention
could be described as "futile," medical professionals have
been unable to agree on a universal, objective definition.27
The AMA Council concluded that medical futility is "inherently
a value-laden determination," and thus, "[a] fully objective
and concrete definition of futility is unattainable."28
What is considered medically futile has a "variety of meanings
. . . including the narrow sense-physiologic inefficacy
and inability to postpone death-and a broader sense-inability
to prolong life for a time, inability to maintain an acceptable
quality of life, very low probability of achieving any one
of the foregoing."29
Fifteen states have statutes that address "futile" medical
care,30 eight of which have explicitly adopted the "medically
ineffective" care provisions of the Uniform Health Care
Decisions Act (UHCDA) into their laws.31
Legislative Findings
Grounds for Provider Refusal Generally
All but five states acknowledge a provider's right to
refuse to comply with a patient's request for treatment.32 The
issue becomes whether a patient or surrogate decision maker
can compel a physician or health care institution to provide
treatment that the physician declines to provide. The recognized
criteria for refusal vary significantly and many states
have multiple criteria. Nineteen states and the District of
Columbia do not establish any criteria for which providers
can decline to comply with a patient's treatment decision, yet
they explicitly permit providers to decline.33 A majority of
states expressly acknowledge that providers are not required
to act contrary to generally accepted health care standards,
although this provision is not always linked to the refusal-tocomply
provision of the statute.34 Eleven states permit physicians
to decline to comply with a health care decision for
reasons of conscience or personal belief.35 Additionally, 14
states permit providers to withhold or withdraw medical
treatment based on moral convictions or religious beliefs.36
Oregon is unique in that it also permits a health care institution
or an employee or agent of the institution to decline to
act in a manner contrary with "philosophical beliefs."37
The numerous reasons for which a provider can decline
to provide care reduces a patient's ability to receive the care
she needs or wants. Furthermore, a state policy that allows a
provider to refuse to provide treatment without a specific reason
gives more weight to physicians in the already unbalanced
power ratio between patient and physician.
Provider Refusal for Medical
Ineffectiveness
Fifteen states have given physicians the express authority
to refuse to render "medically ineffective" health care.38
However, only four of the 15 states define "medically ineffective Delaware and Maryland, which have identical
statutes, also have the most explicit definition. They define
medically ineffective treatment as follows: "'Medically ineffective
treatment' means that, to a reasonable degree of medical
certainty, a medical procedure will not: (1) prevent or
reduce the deterioration of the health of an individual; or (2)
prevent the impending death of an individual."40
Alaska and New Mexico do not specifically link medically
ineffective treatment to impending death. Under
Alaska's statute, "'medically ineffective health care' means
health care that according to reasonable medical judgment
cannot cure the patient's illness, cannot diminish its progressive
course, and cannot alleviate severe discomfort and distress."
41 Although New Mexico is the least explicit, stating
that "medically ineffective" means that the treatment would
"not offer the patient any significant benefit, as determined
by the physician," it is also the broadest in concept because
"benefit" can refer to more than preventing impending death
or curing a patient's condition.42
Pennsylvania does not use the words "medically ineffective,"
but the provision is treated here as substantially equivalent
to medical ineffectiveness.43 Rather than providing an
affirmative right to decline to provide certain health care
decisions, Pennsylvania provides immunity for a health care
provider who refuses to comply with a direction that is based
on good faith and a reasonable degree of medical certainty
that the medical care would have "no medical basis in
addressing any medical need or condition of the individual."
44
Having a criteria regarding what is "medically ineffective"
treatment provides a benchmark for discussion. The
states that lack any definition of medical ineffectiveness
deprive physicians, patients, and loved ones of a reference
point for discussion in resolving differences where the
provider refuses to comply with treatment demands on these
grounds.
Provider Obligations Generally
A majority of states require the provider to inform the
patient of her refusal to fulfill health care directions, regardless
of the reason the provider refuses.45 When the patient
lacks the mental competence to be informed of such refusal,
then the law typically requires the provider to notify the
patient's surrogate. Sixteen states require a health care
provider who refuses to comply with the patient's health care
directions to "promptly so advise" the patient,46 while a few
only require that the provider make a "reasonable effort to
inform the patient."47
States that require a provider to inform the patient that
certain treatment requests cannot be satisfied recognize the
importance of notice and open communication between the
patient and physician, akin to the reasons for informed consent.
Additionally, states that request prompt notice recognize
the vulnerable position that patients are in and the time a
patient needs in making other arrangements to receive the
health care she wants.
Transfer Requirements
All but five states impose some requirement that the
patient be transferred to another physician or institution that
is willing to comply when a health care provider cannot meet
patient requests.48 For the majority of states, the transfer
requirement is in addition to the notice requirement,49 but for
some, it stands alone without any notice requirement.50 For
example, Arizona and North Dakota do not require any communication
between the health care provider and patient, but
do impose a transfer requirement.51 Sometimes the transfer
requirement is not affirmatively imposed but is imposed
through an immunity provision, such that the health provider
is not subject to civil or criminal liability "if the provider
promptly transfers the responsibility for the patient's care to
another provider."52
A transfer requirement is beneficial because it offers the
patient some safeguard that his or her health care directions
will be fulfilled by someone willing to comply. However, not
all transfer provisions are created equal. The level of effort the physician or institution must replication as it ensures a definitive step toward resolution
where an impasse is reached.
Institution vs. Individual Obligations
Some states distinguish between institutional and individual
provider obligations, generally in terms of when
notice needs to be given. For example, some states will
require that an institution inform the patient of its policy prior
to or upon admission,65 whereas the individual health care
provider will inform the patient at the time she refuses to
honor the patient's decision.66 Illinois requires that the health
care provider only notify the administration of the health care
facility, and "then assist the patient or surrogate in the transfer
of the patient to another health care provider."67
Additionally, some states distinguish between institutional
and individual provider requirements for transfer. In
Nebraska, the institution is responsible for the transfer
whether the institution or the individual provider declines.
When the institution declines to comply with treatment
requests, the institution "may intervene to facilitate such a
transfer," but only after "the surrogate is unable or unwilling
to arrange a transfer."68 When the individual provider cannot
comply, then the institution "shall promptly assist in the
transfer."69 In New Hampshire, the physician "shall, without
delay, make the necessary arrangements to effect the transfer
. . . ," whereas the institution "shall [allow] for the transfer."
70
The distinction in transfer requirements between the
institution and individual provider reveal that when the individual
provider refuses to comply with treatment requests,
then the transfer requirement is more forceful.71 This difference
may reflect the ethical commitment of the individual
patient-provider relationship, which fosters close interaction
and communication.
Procedures to Resolve
Patient-Provider Disputes
Given the fact that patient-provider disputes have arisen
in the context of end-of-life care, some states have established
a process for resolving such conflicts.
Maryland
Maryland has established a process for when a physician
believes that an instruction to withhold or withdraw life-sustaining
treatment from the patient is inconsistent with generally
accepted standards of patient care.72 The physician shall
petition the hospital's patient advisory committee for advice
concerning the withdrawal or withholding, or file a petition
with the court seeking injunctive or other relief.73
West Virginia
West Virginia provides a procedure for resolving conflict
between the "surrogate and the patient's best interests as
determined by the attending physician when the person's
wishes are unknown."74 The physician shall consult with a
qualified physician, an ethics committee, or by some other
means.75 If the physician cannot resolve the disagreement,
she can transfer the patient to another facility.76
Texas
The Texas Advance Directive Act, Tex. Health & Safety
Code § 166.001-010, et. seq., outlines a procedure for resolving
disagreements about treatment both for situations in
which a health care proxy requests life-sustaining treatment,
and the physician declines, and when the physician wants to
provide life-sustaining treatment, but the proxy refuses.77
When the attending physician recommends against life-sustaining
treatment that the patient wishes to continue, the
physician must inform the patient's proxy of this decision.78
Treatment will then continue pending a review by an institutional
ethics committee or medical committee ("committee"
or "review board"), whereby the proxy will be given 48 hours
notice of the review.79 Both the proxy and patient are invited
to attend the committee meeting.80 If the review board agrees
with the attending physician that "life-sustaining treatment is
inappropriate," it must provide the proxy with a written
explanation of that decision.81 The physician must continue
to provide aggressive treatment while assisting the proxy in
finding a physician and facility willing to provide the
requested treatment.82 The proxy is given contact information
of health care providers who may provide the requested
care, or further assist in arranging a transfer.83 If a health care
provider is found who is willing to satisfy the patient's
requests, then the patient will be transferred.84 The current
facility will arrange the transfer and provide the necessary
services, but the patient will be responsible for the cost.85
However, if within 10 days, the proxy cannot find a provider
willing to comply with the requested treatment, then the
provider may withdraw the life-sustaining treatment.86 The
time period may be extended with the permission of the
appropriate court, provided there is a reasonable expectation
that a willing facility will be found if the extension is granted.

spend in transferring the patient to another physician or
facility differs across the states. The transfer requirement
may be as minimal as merely to refrain from being a hindrance.
For example, Kentucky provides that a health care
provider who refuses to comply with a health care decision
"shall [not] impede the transfer of the patient to another
physician or health care provider."53
In contrast, Florida imposes a time constraint, wherein
a health care provider who is unwilling to comply with the
health care decision of the patient because of moral or ethical
beliefs "must within 7 days either: (a) Transfer the
patient to another health care provider or facility . . . or (b)
If the patient has not been transferred, carry out the wishes
of the patient or the patient's surrogate."54 Other states provide
a range of transfer obligations such that a health care
provider: (a) shall reasonably cooperate to assist in the
transfer;55 (b) make all reasonable efforts to assist56 or
effect57 in the transfer; (c) shall as promptly as practicable
take all reasonable steps to transfer care58 or immediately
make all reasonable efforts to assist in the transfer;59 or (d)
must transfer the patient.60
Transfer Burden
Some states place the transfer burden on the patient
herself or the surrogate.61 Tennessee permits physicians to
do nothing when a surrogate cannot transfer the patient.62
Nebraska, which initially places the onus on the surrogate
to pursue the transfer, places little duty on the physician,
stating that the "health care provider [may] intervene" when
the surrogate is unwilling or unable to effect a transfer.63 In
New York, if a transfer cannot be effected, the hospital must
either seek judicial relief or honor the surrogate's decision.
64
Unlike the provisions of Tennessee or Nebraska, it is
more beneficial to the patient when states place a stronger
obligation on the health care provider to effect a transfer. A
patient who is not transferred by the provider may then be
left with truly no other gateway to receive her requested
care. In effect, the provider's interests trump that of their
patients.
The patient is already in a vulnerable position, and
expending energy on finding another provider may only
contribute to the patient's deteriorating condition. Unlike
the patient or surrogate, the health care provider is in a better
position to locate a facility to transfer the patient because
of its connections with other providers and familiarity with
who may be willing to comply with the health care directions
of the patient. New York's provision is worthy of Texas Advance Directive Act As Model Statute
There are an increasing number of patient-physician disagreements
over the request to maintain life-sustaining treatment.
88 There is little case law providing a definitive
resolution to this debate. The Texas Act is the first state
attempt to provide a clear and comprehensive process where
a physician declines to honor a request for maintaining lifesustaining
treatment. The Act provides a model for other
states, illustrating the possibility of establishing a balance
between a physician's autonomy to provide treatment and a
patient's ability to direct her own care.
The Texas Act preserves respect for both patient requests
and the medical profession by establishing an out-of-the
court process that fosters patient-physician communication
and agreement. The Act requires the physician to inform the
surrogate of the physician's determination that further treatment
is medically inappropriate, and the surrogate is then
given the opportunity to participate in the committee meeting.
89 Thus, requiring such a process recognizes that since
patients do not have a right to receive their requested request
for life-sustaining treatment, they do deserve a review of their
request. Additionally, this gives a patient some deference by
not giving a physician complete authority to make unilateral
decisions.
The Act also provides a follow-up resolution where the
committee supports the physician's decision to decline lifesustaining
treatment. The transfer requirement directs the
current facility to assist the proxy in finding a provider willing
to comply with the patient's treatment request.90
Additionally, providing the proxy with a list of facilities and
physicians who may be willing to comply with the patient's
treatment requests recognizes that the institution has networks
and connections that the patient lacks. The ten-day
time frame to effect a transfer encourages quick responses
from both the patient and physician and also helps avoid prolonged
disputes. The opportunity to extend the time frame
also identifies that sometimes, even with aggressive efforts in
locating another facility, a patient or proxy may need more
time.
While the Texas Act provides a balanced approach in the
context of patient-physician disputes, there is one concern.
Even though the existing facility is responsible for assisting
in the transfer, the Act requires the patient to pay for the
transfer.91 A patient may not have the financial means to
effect a transfer due to lack of health care coverage or even
where a patient has insurance, it may not cover costs of transfers.
Thus, the requirement for the patient to pay could be a
hurdle that a patient may not be able to overcome, even when
a willing provider is found.
Conclusion
From a state's perspective, it must find a balance
between providing a patient with the ability to direct her own
health care and providing health care providers with the right
to decline to provide treatment for personal or professional
reasons. When a provider's ability to decline treatment
imposes obstacles for the patient to receive the health care
she has chosen, the practical ramifications of the state's
statute is that it becomes a barrier to care. From a patient's
perspective, the various reasons for which a health care
provider may decline to provide treatment tilts authority in
favor of physicians having the final say.92
Medical ineffectiveness or futility, as a ground to decline
treatment, is a topic that incites political, legal, and bedside
clinical battles because it "revolves around fundamentally
irresolvable moral conflicts concerning our most deeply held
beliefs about the value of life, especially profoundly diminished
life."93 Perhaps this quagmire is the very reason some
states remain silent on this issue, leaving patients like in Mrs.
Wanglie's condition unable to receive the treatment they
seek.