As a disability rights organization, we are deeply concerned about bill A204/S4685 which would restore so-called “medical futility” judgments as a basis for denying CPR (cardiopulmonary resuscitation). Although the bill is well intentioned, the standards in the former law and proposed bill are dangerous and threaten the lives of many disabled people, including but not limited to the newly injured and people with developmental disabilities.
As Section 1 of the bill states, “medically futile” would be defined to mean that resuscitation “will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs.” Many people with serious health issues and new injuries experience a period of recurring crises. It is not uncommon for CPR to restore cardiac function while the individual may continue to need respiratory support, such as people with spinal cord and/or brain injuries. This bill guarantees that some people who continue to need respiratory support on a temporary or longer term basis could have their lives ended without their consent.
Section 4(1)(D) of the bill incorporates the same flawed definition of “medically futile” to people with developmental disabilities under Section 1750-b of the surrogate’s court procedure act. Moreover, Subsection (A) of that provision adds an alternative definition of “terminal condition” that absurdly relies on a doctor’s ability to predict death within one year: “a terminal condition which shall mean an illness or injury from which there is no recovery, and which can reasonably be expected to cause death within one year.” Studies show that 12-15% of terminally ill individuals outlive a six-month prognosis of death, much less one year.
Another concern is that the amendment would restore provisions that “allowed a DNR order to be entered for a patient who did not have a surrogate.” This puts disabled people who don’t have an available and willing surrogate at the mercy of a cost-cutting healthcare system that studies show is biased against them. The dangers of medical futility judgements are the subject of a groundbreaking report by the National Council on Disability in 2019 entitled “Medical Futility and Disability Bias”. (https://ncd.gov/sites/default/files/NCD_Medical_Futility_Report_508.pdf).