Thaddeus Mason Pope

Bioethics, Health Law, Patient Rights

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Medical Futility Statutes
Table of Contents
  • Federal Regulations
  • State Authorizations (Green Lights)
  • State Authorizations (Yellow Lights)
  • State Prohibitions (Red Lights)
  • Law Review Articles

Federal Regulations
Federal law has had little impact on the resolution of futility disputes.   There have been notable exceptions like Baby K and EMTALA.  But in general, federal statutes and regulations are not nearly as relevant as state law.

CAPTA - Interpretive Guidelines
Executive Order 2020-21960 (Sept. 2020)
DHHS Statement on Executive Order 2020-21960 (Sept. 2020)
Traffic Light Metaphor to Organize State Statutes
State Authorizations (Green Lights)
Most states have some statutory provisions that (purport to) permit healthcare providers to refuse to comply with instructions or decisions for treatment that are contrary to the provider's professional judgment and/or the professional's conscience. Most are ineffective, because they condition immunity on compliance with the standard of care. Texas law includes no such condition. But laws in California and Virginia come close. A few other states authorize unilateral DNR orders in their POLST laws.

California
California Health Care Decisions Act (esp. 4735)
Texas
Texas Advance Directives Act (esp. 166.046)
Pope, Procedural Due Process and Intramural Hospital Dispute Resolution Mechanisms: The Texas Advance Directives Act, 10 ST. LOUIS U. J. HEALTH L. & POLY 93 (2016)
Texas House of Representatives 2006 Interim Report
Gonzales v. Daughters of Charity Health Services of Austin, No. 86,427 (Travis County Probate Court, Tex. Mar. 6, 2007) (Guardian Ad Litem’s Trial Brief on Legal Issues)
Virginia
Virginia Health Care Decisions Act (effective July 1, 2018)
Virginia Joint House Resolution 61 (2016)
Other States
Maryland MOLST Form & Regulations
Vermont COLST Form & Regulations
Vermont 2017 COLST Regulations
Michigan POST statute 2017
State Authorizations (Yellow Lights)
Some states (like Texas) expressly permit cliicians to stop life sustaining treatment without consent. Other states (like Idaho) expressly prohibit it.  But most states have no clear green or red light.

Delaware Health Care Decisions Act (esp. 2508, 2510)
Connecticut chapter 368w
State Prohibitions (Red Lights)
Increasingly over the past five years, states have been enacting red light statutes that prohibit clinicians from stopping life-sustaining medical treatment without consent.

Idaho Discrimination in Denial of Life-Preserving Treatment Act
Minnesota Healthcare Decisions Act (partial red light)
New York Family Healthcare Decisions Act
Oklahoma Nondiscrimination in Treatment Act
Ontario Health Care Consent Act (as interpreted by Rasouli)
New Jersey (failed bill 2011)
Virginia (failed bill 2011)
Law Review Articles
I provide and organize some primary source materials on this page.  But for a more thorough collection, organization, and analysis of the law in this area, please see my articles and book chapters.

Pope, NY LAW SCHOOL LAW REVIEW (2014)