The concept of medical futility, which originally developed in the medical literature as a basis for allocating between physician and patient decisional authority regarding end-of-life treatment, is increasingly appearing in discussions regarding possible methods of containing medical costs by limiting treatment. This use of medical futility as a rationing mechanism, whether by a state Medicaid program or by a hospital, raises concerns regarding its impact on persons with severe disabilities near the end of life. This article considers how the applicability of the Americans with Disabilities Act to cost-conscious futility policies might be analyzed. After developing arguments that proponents and challengers of such policies could raise, however, this article ultimately concludes that the very arguments available under the ADA demonstrate the inaptness of disability discrimination law for thoroughly responding to the concerns that futility policies raise. Instead, to answer these concerns fully, our society should focus on more fundamental questions regarding the demands of justice in health care resource allocation and the nature of dying and the interests of the dying persons, questions calling for an expansion of the dialogue beyond the bounds of law.
Medical Futility and Disability Discrimination,
Iowa Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/417
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