Administering futile medical treatment is tantamount to inflicting cruel and unusual punishment on a patient and an abridgement of his rights of self-determination. It is incumbent upon physicians to recognize that they should accept the imposition of an affirmative legal, professional, moral and ethical duty not to prescribe a modality of treatment that falls clearly within the scope of being considered futile, freakish, or tortious under the provisions of Eighth Amendment to the Constitution. When medical treatment is classified as "futile," it frees the physician from any duty to provide treatment. While most reasonable persons agree with this proposition, much disagreement exists as to the definition of futile treatment and who decides whether a given treatment is futile. This article begins with a discussion of various definitions of futility and distinguishes futility from other grounds for denying medical treatment. Next, this article examines the issue of who decides whether a given treatment is futile and what operational guidelines may be employed to reach this conclusion. A three-tiered decisional structure is then proposed for testing whether a given treatment falls within the scope of these guidelines. Under the first tier, the treating physician would have the primary responsibility of determining whether a particular treatment should be withheld on the grounds of futility. While the physician would be under a duty not to prescribe treatment deemed futile, he would be obliged to inform the patient and his family of this decision¿including the reasons for the decision. This would allow, under the second tier, for the patient or his family to appeal the decision to the hospital ethics committee. The third tier recognizes a right of limited appeal to the courts. The article concludes by suggesting that the management of death can be more humane when the principle of medical futility is refined and sharpened as proposed herein and thus seen as an efficacious construct for medico-legal decision making.
George P. Smith, II, Futility and the Principle of Medical Futility: Safeguarding Autonomy and the Prohibition Against Cruel and Unusual Punishment, 12 J. CONTEMP. HEALTH L. & POL’Y 1 (1995).