Medical Futility Blog

Bioethics Conferences - Update Your Calendar

2026-11-01T00:30:00.000-05:00

The next annual conference of the American Society of Bioethics and Huamnities (ASBH) will be in Columbus, Ohio from October 27-30, 2027.

This is the most significant meeting on bioethics and clinical ethics in the United States. I look forward to seeing you there.

Medical Futility - Variability in Nurse Perceptions

2026-10-31T00:30:00.000-05:00

Ten years ago, this article showed significant differences in how physicians determined life-sustaining treatment to be inappropriate. The 100 surveyed doctors noted significant variability in how the concept was applied in clinical decision making.

Now, a newer article shows variability among nurses too. The review included 22 studies from around the world. Like physicians, nurses defined medical futility in different ways, including:

Medically Pointless - treatment that won't help the patient survive or recover
Prolonging Suffering - keeping patients alive when death is inevitable, just extending the dying process
Life Without Quality - biological life without meaningful improvement in how the patient experiences life

Free Course on Voluntary Stopping of Eating & Drinking (VSED)

2026-10-30T06:31:33.905-05:00

The Zurich University of Applied Sciences is offering a "Basic Course on Voluntary Stopping of Eating and Drinking"

The course provides an overview of this complex topic and its background. It utilizes short presentations, expert contributions, readings, exercises, and reflection. This course forms the basis for the Advanced Course, which will be available to professionals at a later date.

The course is structured as follows:

Introduction to the topic: Initially, the aim is to familiarize you with the terminology and its implications, especially in the context of media discussion.

Historical and societal perspective: To develop a comprehensive understanding, you will gain insight into the historical and societal background. How is voluntary stopping of eating and drinking discussed on a societal level, and what is its relationship to suicide?

Physical, psychological, and social dimensions: In this step, you will deepen your knowledge and learn to differentiate between the various phases of voluntary stopping of eating and drinking (VSED). The aim is also to understand personal distress as a cause for the wish to die prematurely. Physical aspects and reactions, as well as communication and the social impact of VSED, will also be considered.

Perspectives of those wishing to die and perspectives of their relatives: in these two chapters, you will examine the everyday perspectives of those wishing to die and their relatives. This also includes possible roles and needs.

Professional support and legal framework: Using the biopsychosocial-spiritual model, you will learn to understand the various roles and tasks of professionals involved in voluntary stopping of eating and drinking (VSED) and reflect on your own role and attitude. This will familiarize you with the limitations and risks of providing support. You will engage with ethical discussions, such as the question of self-determination and autonomy in relation to the phenomenon of accelerated death, also referred to as "hastened death" in English-language literature. Legal aspects from Switzerland, Germany, and Austria complete the course.

Surrogate Medical Decision Makers - When & How to Challenge Them

2026-10-29T08:01:30.159-05:00

The Fall 2026 issue of the Journal of Law, Medicine, and Ethics includes some useful guidance for how clinicians should handle surrogaes who make healthcare decisions inconsistent with the patient's goals, preferences, or values.

Unfortunately, clinicians too often cave-in to illegitimate surrogate demands. The legal authority of all healthcare surrogates is constrained (agents, surrogates, parents, guardians). Clinicians must push back when surrogates act outside the scope of this authority.

I addressed this myself a few times, including:

Legal Fundamentals of Surrogate Decision Making, 141(4) CHEST 1074-1081 (2012).
Surrogate Selection: An Increasingly Viable, but Limited, Solution to Intractable Futility Disputes, 3 ST. LOUIS U. J. HEALTH L. & POL’Y 183-252 (2010).

Disability Discrimination & Medical Futility at U.S. Supreme Court (Michael Hickson)

2026-10-28T01:00:00.000-05:00

When making determinations that life-sustaining treatment is potentially inappropriate, non-beneficial, or "futile;" clinicians almost always consider the patient's disabilities. Sometimes, those disabilities are relevant to the treatment determination. Sometimes they are not.

The U.S. Court of Appeals for the Fifth Cicuit held that a disability discrimination claim may proceed when medical treatment is based "'solely,' in the pejorative sense," on the patient's disability.

The medical defendants have just filed a petition asking the U.S. Supreme Court to reverse the Fifth Circuit. They argue that allowing the claims will "federalize medical malpractice" and permit "plaintiffs to recast their medical-malpractice claims as disability discrimination and circumvent the guardrails that States have imposed on malpractice claims."

Dead Donor Rule - Further Weakened & Eroded

2026-10-27T21:26:17.411-05:00

Alas, poor Dead Donor Rule. I knew him, Horatio.

Reporting on new OPTN Guidance that goes into effect next month, NPR highlights further retreat of the Dead Donor Rule.

The Dead Donor Rule is a long-settled legal and ethical principle. And it is not just a matter of U.S. state and federal policy. It is embodied in multiple WHO international conventions.

It includes several aspects:

Do not take unpaired organs until after death.
Do not hasten death to get organs.
Clinicians determining death should be uninvolved in transplantation.
Clinicians involved in transplantation should not touch the donor until after death is determined.

The new Directive allows discussions for organ donation to take place BEFORE the family has authorized withdrawing life-sustaining treatment. Donation discussions can start once end of life discussions have started taking place with the potential deceased donor's agent.

Yes, this is just about discussion / conversation / communication. But the best way to comply with the letter and spirit of the Dead Donor Rule is to separate the healthcare decision making from the donation decision making.

It seems almost silly to advise and admonish that “the decision to withdraw life sustaining therapies should not be influenced by the donation decision," when it will definitely happen.

Ideally, the patient would have addressed all this themselves in their advance directive. First person authorization can solve all of this. But allowing both sets of discussions and decisions (WLST and donation) to run concurrently obviously risks influence. Perhaps the benefits of the timing justify the enhanced risks. But there are enhanced risks. At least mitigate those with a clear protocol for who says what when.

There will be coercion and pressure to withdraw life-sustaining treatment (WLST). To be sure, that is happening now. Critical care intensivists often think there is no good path forward for a critically ill patient. They may nudge the family toward WLST. They may frame the facts in a biased way. They may announce that they will WLST, construing family silence as an assent. And they may even WLST over objections (permissible in VA, TX, CA...).

But while critical care intensivists may sometimes be motivated by paternalism or by helping OTHER DIFFERENT patients (those needing to come to the ICU from the ED or elsewhere), they are still primarily focused on the patient in front of them.

Contrast the OPO staff. They are far more heavily focused on the organs rather than the patient. And with the new tiered "produce or perish" rules, they are likely to be aggressive. Too aggressive.

In shiort, with the new Directive, families will more likely make under-informed decisions. They will more likely WLST from patients inconsistent with those patients' goals, preferences, values. And inconsistent with those patients' best interest.

The Strawberry - Film on Medical Aid in Dying

2026-10-27T11:58:18.580-05:00

Yet another major film depicts medical aid in dying. The Strawberry stars MASH's Mile Farrell.

After a terminal diagnosis, Herb Kaplan seeks peace with his broken family and the joy he long overlooked. As old wounds heal and new bonds form, he learns to cherish the sweetness in front of him and say goodbye on his own terms.

VSED Bridge to MAID - Expanded Use, But More Criticism

2026-10-26T06:16:41.547-05:00

The response to our series of articles on VSED Bridge to MAID has been mixed. Across the country, patients and clinicians have followed this path. But commentators have criticized it. We have several forthcoming articles defending the ethical and legal permissibility of VSED Bridge to MAID.

One of the latest critiques was just published in the American Journal of Bioethics - "What Is a Terminal Disease? Hidden Expansion of Medically Assisted Death in the United States." I am pleased to have had the opportunity to discuss with one of the authors at a bioethics conference in Oxford. Here is the abstract:

Medically assisted death (MAD) in the United States is legally restricted to adults with a terminal disease. When these laws were debated and adopted, the term “terminal disease” was used by lawmakers and the public with a common sense understanding: an incurable disease that would inevitably cause death in the near term, regardless of treatment.
Since then, published case reports, government correspondence, annual report data, and professional discussions indicate that some clinicians now apply the terminal disease criterion to cases where death is expected primarily because the person refuses or cannot access food, water, or standard medical care. This constitutes a de facto expansion of MAD eligibility, likely enabled by excessive clinician discretion and weak state oversight, with significant implications for the legal, ethical, and democratic foundations of terminal illness-based MAD regimes.

Consciousness Commoditized & Bodies Disposable

2026-10-25T19:59:38.055-05:00

The trailer for Gods Don't Give Gifts is provocative.

"Strong minds can outlive weak bodies."
"What's a life worth when we sever th body from the soul."
"Soon, the deathless will envy the dead."

Doctors and Their Crimes: Hiding Behind the White Coat

2026-10-24T06:07:24.378-05:00

Just published this month, Doctors and Their Crimes: Hiding Behind the White Coat, examines high-profile cases of medical malpractice, fraud, manslaughter, sexual misconduct, and abuse of power. Think Harold Shipman and Christopher Duntsch.

Drawing on real-world cases and insights from the authors’ clinical experience, the book examines the ethical dilemmas, legal consequences, and societal impact of these betrayals of trust. It explores how systemic failures within healthcare and legal frameworks can enable such crimes, while also addressing sensitive issues like racism, justice, and professional accountability.

This book aids understanding the pressures and vulnerabilities that contribute to these breaches, offering valuable reflections on how trust in the profession can be restored.

Brain Death Conflicts - Portrayed Off Broadway

2026-10-23T05:43:55.490-05:00

I enjoyed seeing The Heart this week in New York City This muscial theatre production portrays a heart transplant from the death of the donor to successful surgery in the recipient.

Given my years of research on brain death, I was particularly impressed by the how the parents initially misunderstood and even denied that their son was dead on neurological criteria.

Your Advance Directive Can Get You Too Much Treatment - Or Too LIttle

2026-10-21T23:30:00.000-05:00

As always, it was a pleasure to engage on the KevinMD podcast. In this episode (and YouTube here), I discuss how advance directives are misinterpreted or misapplied such that patients get either more treatment than they wanted or less treatment than they wanted.

For some background on this issue, see:

Thaddeus Mason Pope, Unwanted Medical Treatment Harms Patients: Taxonomy of Healthcare Consent Infractions, 59(3) UNIVERSITY OF ILLINOIS CHICAGO LAW REVIEW 615-670 (2026). LINK TO PDF
Ferdinando Mirarchi & Thaddeus Mason Pope, Widespread Misinterpretation of Advance Directives and POLSTs Threatens Patient Safety and Causes Undertreatment and Overtreatment, 19(5) JOURNAL OF PATIENT SAFETY 289-292 (2023). LINK TO PDF

MAID/VAD on Isle of Man

2026-10-21T08:24:26.204-05:00

While the Isle of Man MAID/VAD legislation has now received royal assent, it will be more than a year before the law comes into force. Official are estimating April 2028.

While the Manx law includes some of most restrictive conditions on planet Earth, this is an island with fewer than 100,000 residents. So, limiting medical tourism seems a legitimate concern, especially while no other part of the UK authorizes MAID/VAD. On the other hand, the legitimacy of VSED has recently been clarified in the UK.

Bison vs. Bunny - Physician Responses to Perceived Legal Risk

2026-10-20T00:00:00.000-05:00

Clinicians often treat patients contrary to their best judgment because of perceived legal risk. They are like scared little bunnies that scamper away into the bushes. Instead, physicians should more often remonstrate and resist surrogates who demand treatment clearly contrary to patient wishes or best interest. They should face into the storm like bison.

In this brief video, I describe how I sometimes encourage physicians to be bison rather than bunnies when confronting perceived legal risk. Other times, I encourage them to be bunnies rather than bison.

VSED - Not Just Anyone Qualifies

2026-10-19T00:00:00.000-05:00

A recent mini-symposium in a German bioethics journal discussed a case where a patient wanted VSED. But his clinicians determined this patient was ineligible because he was overreacting to his new medical condition.

While MAID has statutory and regulatory limits on who is eligible, VSED does not. But that does not mean anyone can qualify for VSED. Not even any adult with capacity.

We delegate to clinicians to make all sorts of eligibility determinations for all sorts of medical services. Here too, clinician judgment serves as a limit on who can access VSED, even if no statute does that.

NBT/PIT Policies - Designated Physician Writes the Order to Withdraw LST

2026-10-18T05:35:15.716-05:00

Many U.S. hospitals have NBT/PIT policies permitting clinicians to withhold or withdraw life-sustaining treatment over patient and family objections. And clinicians confront situations of non-beneficial or potentially inappropriate treatment regularly. Yet they generally remain reluctant to use their hospital policies.

Perhaps one solution can be found in this episode of the 1980s TV series Cheers. The executives at Norm's company find it too difficult to terminate employees. So, they select Norm to be the full-time "corporate killer," - the one guy at the office who fires people.

Analogously, hospitals could designate one physician to assume the role of writing orders to wothhold or withdraw treatment that other physicians are reluctant to write.

Bioethicists Wanted for AI Design

2026-10-17T06:24:39.112-05:00

Anthropic, the company behind Claude and other AI tools, has opened applications for its Conceptual Reasoning Fellowship, a four-month paid gig.

They are lookig for philosophers and lawyers, and the objkectives would be well met with bioethics topics. Your job: identify key open problems in your field, assessing approaches to solving them, and using Claude to make progress on them.

Legal Update 2026: Top 10 Legal Developments in Bioethics and Public Health (video)

2026-10-16T05:11:38.084-05:00

It was a pleasure to help deliver the sixtenth annual Legal Update 2026: Top 10 Legal Developments in Bioethics and Public Health at the ASBH Annual Conference yesterday. Here is a rehearsal video of my section. And here is a photo of all the panelists.

Physiologically Maintained Deceased: Interdisciplinary Dialogues at the Threshold On Life, Death, and Discovery

2026-10-15T00:55:17.302-05:00

Join me at the University of Chicago next month for this two-day event - Physiologically Maintained Deceased: Interdisciplinary Dialogues at the Threshold On Life, Death, and Discovery.

It's a who's who of death determination and transplantation ethics - Bernat, Truog, Magnus, Parent, and many more.

Transplant Ethics & Policy Conference

2026-10-14T01:00:00.000-05:00

Here is a more detailed schedule for next week's Transplant Ethics & Policy Conference at NYU. My session starts at 9:30.

Death Doulas Are Everywhere

2026-10-13T01:00:00.000-05:00

I have benefitted so much from engagement with death doulas over the past five years. This recent story on NPR offers a nice overview of their important work. It rightly notes recent portrayals on THE PITT and support by film star Nicole Kidman.

Unrepresented Patients - Biggest Clinical Ethics Issue

2026-10-12T06:19:02.013-05:00

Many hospital systems have published summaries of their ethics consults over the past five- to ten-year period. This data shows that decision making for unrepresented patients remains one of the most frequent reasons for ethics consults.

This new article in BMC Medical Ethics shows that unrepresented patients comprise nearly 40% of ethics consults at a major Southern California hospital. Thankfully, they have an efficient and respected intramural mechanism for decision making that avoids the need to go to court.

Legal Update 2026: Top 10 Legal Developments in Bioethics and Public Health

2026-10-11T00:30:00.000-05:00

We're back. Please join us at ASBH on Thursday, October 15, 2026 at 2:30 PM in the JW Grand Ballroom 5-6 (Third Floor), for Legal Update 2026: Top 10 Legal Developments in Bioethics and Public Health.

Prepare for Your Death with Virtual Reality

2026-10-10T01:00:00.000-05:00

The Economist reviews recent efforts using virtual reality to help people prepare for death. They find that "simulating death can reduce people’s fear of dying."

While we already use VR to prepare patients for certain procedures, we should be using it more. That way, patients have a much better sense of what to expect.

Life-sustaining Treatment Preferences at End of Life: ICU Hospital Professionals

2026-10-09T01:00:00.000-05:00

ICU hospital professionals do not lead by example. A new study of 200 ICU professionals reveals two interesting findings:

1. Only 13% have advance directives.
2. In 7 of 9 scenarios, they would withdraw life-sustaining treatment for themselves more often than for patients.