At last Tuesday's conference on Fostering a Good Death, New Jersey attorney Gary Lesneski examined the recent Union County, NJ decision in Betancourt v. Trinitas Hospital. Gary observed that the trial court decision "could be interpreted" to require physicians to continue life sustaining treatment that is medically contraindicated." This decision "effectively compels physicians to provide futile care if requested." He predicts that the decision "left alone, will chill efforts to confront questions of medical futility and contribute to the problems referenced in the Dartmouth study."
I am not sure that futility disputes contribute much to New Jersey having the most expensive end-of-life care. All indications is that those problems are overwhelmingly provider-driven, not patient-driven or surrogate-driven. Still, there are a significant number of futility disputes. The shadow of Betancourt will have an impact (i.e. empowering surrogates) on how those disputes are resolved in team meetings, ethics consultations, and ethics committee meetings.
Accordingly, the Medical Society of New Jersey (through its Committee on Biomedical Ethics), the New Jersey Hospital Association, and the New Jersey Catholic Healthcare Association are planning to file an amicus brief as the case heads for final appellate briefing. Still, some are concerned that this is not the right case through which to establish binding precedent because, among other things, some medical facts are in dispute. Having a published opinion empowering surrogates would be worse than having a trial court decision saying the same thing.
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