Terminal cancer patients are being kept in the dark about the purpose of their care. Several studies show that these patients undergo expensive and painful interventions because they are holding out hope for a cure, even when their physicians know that a cure is very unlikely. The current Medicare reimbursement system encourages this false hope by incentivizing physicians to medicate and operate on patients, rather than to talk about whether or why to do these things. Our culture also encourages this false hope by treating cancer as a war that must be won. As a result, patients are admitted to the ICU, infused with toxic chemotherapy, and operated upon within the last few days of their lives. They pursue risky, painful, and expensive treatments that they might not otherwise undergo if they knew they were gaining weeks instead of months, or not gaining any time at all. Whatever their wishes for their death, a substantial number of patients are not given a chance to articulate them because nobody asks. This situation is a disaster on many levels. In this Article, I explore the reasons for this complex phenomenon—scouring the medical, psychological, and legal literature. I then conclude with ten legal mechanisms that could be used to cut against this current state of affairs.
57 Ariz. L. Rev. 977 (2015)