Just as physicians give up control over treatment decisions out of respect for individual autonomy when patients refuse unwanted LSMT, Halevy concludes, patients and surrogates may need to surrender some control so as not to force physicians to provide interventions that violate a core value of their profession.
In "When Atlas Shrugs: May the State Wash its Hands of Those in Need of Life-Sustaining Medical Treatment?", O'Callaghan observes that the absence of an objective standard guiding the judgment of physicians or the review committee means that TADA immunizes all denials of LSMT under its review process, whether they are entirely arbitrary, negligent, reckless, or made with malice and the intent of harming or killing the patient.
Professor O'Callaghan distinguishes the LSMT at issue in futility cases as it is proven to sustain life.
Johns Hopkins Health Systems Corp., an AIDS patient signed a living will directing health care providers to forgo LSMT, including resuscitation efforts, after two physicians had certified that he was in a terminal condition.
While physicians often err on the side of providing LSMT, even when it is against a patient's wishes, in some cases they have terminated life support despite a request from the patient's family members that doctors do everything possible to keep the patient alive.
In cases brought for failure to provide LSMT consistent with patient or proxy wishes, the patient is typically severely disabled and very close to death.
(7) Kamisar also conceded that a physician's cooperation with a patient's rejection of LSMT was morally equivalent to PAD, at least where the cooperating physician intended to bring about death.
The prevailing legal framework in the United States differentiates sharply between physician conduct withdrawing LSMT (thereby prompting death) and conduct providing or administering a lethal substance.
Furthermore, refusing LSMT may include a DNR order, based on the
withdrawal or continuation of LSMT, the declarant must be an adult of at
Decisions to deny LSMT to patients following the above procedures receive absolute immunity from all civil, criminal and administrative review; there are no statutory standards delineating what constitutes "futile" treatment, nor any limitations on the immunity for negligent or reckless decisions, and even those motivated by an intent to harm the patient.
Second, by sanctioning arbitrary denials of LSMT, the Statute infringes on a substantive due process right to self-preservation under the Fourteenth Amendment.