Medical Futility Laws Protect Surrogate Decision Makers by Constraining Clinicians and Hospitals

Medical futility laws protect surrogate decision makers by constraining clinicians and hospitals. Professor Fiester shows that clinicians and surrogate decision makers often have different value systems. Clinicians espouse the "Best Interest Values" (BIV) system, while surrogates often espouse the "Life-Continuation Values" (LCV) system. Professor Fiester argues that there is no way to adjudicate between the BIV and LCV value systems. They are incommensurable and irreconcilable. Surrogates are not "wrong" about the patient's best interest. They just measure it differently. Consequently, because clinicians have no superior ethical claim to determine the patient's best interest, they should not impose their value-laden notion onto surrogates. I question whether clinicians are as powerful as Professor Fiester suggests. In fact, laws in many U.S. states materially constrain clinicians and hospitals, requiring them to do precisely what the LCV surrogate wants. Therefore, in these jurisdictions, clinicians are already forced to undertake the "constructive engagement" that Professor Fiester calls for. In these states, the BIV does not subjugate the LCV. Rather, the LCV likely subjugates the BIV.