TOM MAYO

Two stories unfolding in two different states raise the same issue of the proper roles of government, physicians and patients in determining the level of care that ought to be provided to the sick and the dying.

The Oregon Health Services Commission has approved a list of 808 disorders ranked in descending order from those that are the most economically worthwhile to treat to the least worthwhile.

Once the commission has established the annual costs of providing treatment for each medical condition, the Oregon Legislature will approve a budget for its state Medicaid program, which pays for health care for Oregon's indigent population. The size of that budget will determine where on the list of disorders the line will be drawn to eliminate Medicaid coverage for conditions deemed insufficiently economically worthwhile to cover.

The list of exclusions will almost certainly include such conditions as extremely low birth-weight babies and terminal HIV disease. Acquired immune deficiency syndrome, when detected in its early stages, is in the top quarter of the Oregon list and will probably survive the Medicaid budget ax.

By rationing health care benefits for Medicaid patients, Oregon will extend Medicaid coverage to every person in the state who qualifies under federal poverty guidelines. But the state will limit the cost of that expansive coverage by refusing to pay for the treatment of illnesses and conditions determined by the commission to have the worst cost/benefit ratio.

The second health care story is unfolding in Minneapolis. Helga Wanglie is an 87-year-old woman who is in a persistent vegetative state following a heart attack in May. The Hennepin County Commission voted in January to go to court for permission to disconnect the ventilator that is keeping her alive. The public hospital that is treating Mrs. Wanglie took the first step on Feb. 8, when it asked the local probate court to appoint a retired chief justice of the Minnesota Supreme Court as Mrs. Wanglie's conservator with the power to consent to or to refuse medical treatment.

Before becoming permanently unconscious, however, Mrs. Wanglie clearly expressed her belief that "only he who gave life has the right to take life," and that she wanted "everything done" to keep her alive. Most "right-to-die" cases have pitted patients or family members who want life-sustaining treatment discontinued against physicians and hospitals who want to continue treatment. The dispute over Mrs. Wanglie' s treatment is being called a "reverse right-to-die" case.

The case raises a difficult question: When, if ever, does the "right to die" become the "duty to die"?

On its face, the Wanglie case is not about rationing or money. Medicare and private insurance have paid her bills, now running over $500,000, and the hospital has not argued that her bed and ventilator are needed for the care of others. Despite the hospital's protests to the contrary, however, money and rationing lurk just below the surface of the case.

Both the Oregon health planners and the hospital and physicians in the Wanglie case have something in common. They propose to establish legal limits on the principle of autonomy, the ethical notion that individuals enjoy the right to determine for themselves whether to accept or reject medical care, including life-sustaining treatment.

Limits on patient autonomy are inevitable and probably long overdue. As important a principle as it is, autonomy is not an absolute. Competing principles and interests must sometimes be weighed against patient autonomy. In Oregon, the competing principle relates to the welfare of others. The Medicaid rationing plan is an attempt to allocate health care resources to produce the greatest benefit from a fixed budgetary pie.

In Minneapolis, the competing principle derives from the ethics of the medical profession. Mrs. Wanglie's physicians argue that it is ethically unjustifiable to provide medical treatment when it cannot provide a benefit to the patient -- when the treatment is futile. Oregon's argument works. The Minneapolis argument, however, does not.

Helga Wanglie's doctors are quite right that there is no ethical duty to provide futile treatment to a patient who requests it, and there is probably an ethical duty not to do so. The Wanglie case turns on the meaning of "medical futility." It is easiest to defend the physician's right (or duty) to withhold futile treatment when futility is given its narrowest definition. Under that definition, care is futile when it cannot produce the result the care is intended to produce.

For example, there are patients who, statistically speaking, will not survive attempts to resuscitate them. Medical journals routinely provide such data, and doctors are educated and trained to interpret the data and apply them in individual cases.

This is not the definition of futility that Helga Wanglie's physicians have put forward. In her case, the ventilator that is successfully keeping her alive will not return her to consciousness, and will not restore to her any quality of life beyond her present state of permanent unconsciousness. Given this bleak prospect, her physicians argue that she is not justified in demanding ventilation. But nothing in medical school, residency or clinical experience qualifies her physicians to make a "better" judgment about the value of this therapy, or the value of her life, than Helga Wanglie made for herself. When measured against Mrs. Wanglie's right of autonomy, the professional ethics of her physicians are not a sufficient basis for overriding her choice.

The Oregon and Minneapolis scenarios differ in the way rationing decisions are made. In Minneapolis, Mrs. Wanglie's physicians are suing for the right of physicians to ration medical care on an ad hoc, case-by-case basis. In Oregon, rationing will be accomplished, not at the bedside by physicians who do not value "mere" life as highly as their patients, but by physicians, other health care professionals, legislators and the public on an across-the-board basis.

Health care rationing should be done through procedures that include elements of equity, justice and public accountability. It is also important for rationing to be justified in terms of the greater benefits that are produced by limiting the care available to all. Oregon understands this. Helga Wanglie's physicians do not.

Tom Mayo is an associate professor of law at Southern Methodist University and of counsel to the law firm of Haynes and Boone.
ILLUSTRATION: Hospital patient being pulled off bed (Christoper
Bing)

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