Recognizing that courts will eventually have to confront the issue of medical futility, this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those raised by the respirator scenario, while constitutional principles provide a framework that is conducive to avoiding those questions.
Brent D. Lloyd, Toward a Pragmatic Model of Judicial Decisionmaking: Why Tort Law Provides a Better Framework than Constitutional Law for Deciding the Issue of Medical Futility, 19 SEATTLE U. L. REV. 603 (1996).