APPELLATE DIVISION IMPLIES MEDICAL PROVIDERS MAY REFUSE TREATMENT BASED UPON FUTILITY OF CARE

Daniel Levy has an op-ed in this week's New Jersey law Journal on the Betancourt case. The central part of his analysis is as follows:

[T]he Appellate Division did not resolve the substantive issue of whether a health care provider may withdraw care based upon futility . . . . The court seemed unwilling to rule on the issue because such a ruling would be 'whole-cloth legislation from the bench.' The court did, however recognize that the debate on medical futility would continue and should be addressed 'in thoughtful consideration by the Legislature as well as Executive agencies and Commissions charged with developing the policies that impact on the lives of all.'  Although at first glance it may appear that the Appellate Division side-stepped on an important issue with possibly nationwide consequences, the suggestion that the issue is best left for proper legislation may be the best course of action. The hospital sought an openended exception to the right-to-die doctrine for whenever a health care provider deems treatment to be unnecessary. While an exception that would allow some ability for a health care provider to refuse to continue treatment that is deemed unethical may be appropriate in certain circumstances, accepting such an argument might have led to an overbroad exception.  The Legislature may in general be better to craft a medical futility statute that would set the requirements for when a health care provider can refuse to continue providing treatment that would be considered futile.