Physician decision-making is often tinged with concern for legal liability, causing some doctors to provide unwanted, often futile, medical treatments to patients nearing death, said an attorney and bioethicist to a crowd this week at the University of Chicago’s MacLean Center for Clinical Medical Ethics.

“Clinical challenges at the end of life are often about when to say ‘we’re done,’ about how far to go in treating patients who are unlikely to survive, or who are unlikely to recover,” said Nadia Sawicki, an associate professor of law at Loyola University Chicago. “As a legal matter, patients and their families typically have the ultimate say in decisions. Physicians and other health care professionals serve a vital role in guiding those decisions and making recommendations based off their professional expertise.”

Physicians ought not be in a position where the threat of legal liability causes them to violate their own ethical convictions.

Experienced physicians are usually more realistic about a patient’s prognosis or disease trajectory than family or close friends. But in some cases, Sawicki said, physicians fearing future litigation from family members for withdrawing medical treatments will push for continued, often aggressive, therapies.

“Evidence shows that in many, if not most cases of futility conflicts, health care providers and institutions ultimately do continue to provide treatments requested by families, even if this violates their own professional convictions about medical practice and medicine,” she added. “Physicians ought not be in a position where the threat of legal liability causes them to violate their own ethical convictions.”

Health care providers are more likely to face litigation for withdrawing treatments than for providing them, a symptom of the “contradiction” in American law, Sawicki said. Even though Americans have the right to medical self-determination, including the freedom to decline life-saving medical interventions, tort law does not recognize prolonged life as a legally compensable injury. However, some courts are now reconsidering that position and allowing claims to proceed.

“Patients can be harmed, as much by receiving unwanted care, as by having care withdrawn,” she added. “Courts are more effectively balancing tort law and consent. In a sense, with the threat of liability more balanced on each side, U.S. physicians should feel encouraged to do what they think is best in accordance with professional ethics and standards of care.”

She went on to list a handful of academic studies exploring the motivations of some medical providers for ignoring patient or surrogate wishes. According to a 1995 study published in the American Journal of Respiratory and Critical Care Medicine, 34 percent of physicians continued life-sustaining treatments, despite patient wishes that they be halted.

“We conclude that physicians do not reflexively accept requests by patients or surrogates to limit or continue life-sustaining treatment, but place these requests alongside a collection of other factors, including assessments of prognosis and perceptions of other ethical, legal, and policy guidelines,” researchers write. “While debate continues about the ethical and legal foundations of medical futility, our results suggest that most critical care physicians are incorporating some concept of medical futility into decision making at the bedside.”

A 2012 survey led by Dr. Ferdinando Mirarchi, medical director of the Department of Emergency Medicine at the University of Pittsburgh Medical Center, determined that 20 percent of physicians would defibrillate a patient with a clear do-not-resuscitate order.

“There are times where we have seconds to minutes to act,” he said. “In those instances, when a document gets misinterpreted, someone lives or someone dies.”

Mirarchi’s findings were echoed in a recent study published in BMC Medical Ethics. Fifty-two percent of physicians agreed that the risk of liability is lower when keeping someone alive against their wishes than in mistakenly failing to resuscitate.

“When confronted with a spouse’s wishes that conflict with those provided by the patient’s (advance directive), over half of respondents considered the threat of legal liability as important or very important to their decision,” researchers write.