CHAPTER18 End-of-Life Issues © sfam_photo/Shutterstock When we finally know we are dying, and all other sentient beings are dying with us, we start to have a burning, almost heart breaking sense of the fragility and preciousness of each moment and each being, and from this can grow a deep, clear, limitless compassion for all beings. —Sogyal Rinpoche Learning Objectives The reader, upon completion of this chapter, will be able to: •  Discuss the human struggle to survive and the right to autonomous decision making. •  Describe how patient autonomy has been impacted by case law and legislative enactments. •  Discuss the following concepts: preservation of life with limits, euthanasia, advance directives, futility of treatment, withholding and withdrawal of treatment, and do-not-resuscitate orders. •  Explain end-of-life issues as they relate to autopsy, organ donations, research, experimentation, and clinical trials. •  Describe how human genetics and stem cell research can have an impact on end-of-life issues. The human struggle to survive and dreams of immortality have long been instrumental in inspiring medicine to develop the means to prevent and cure illness. Advances in medical technology have resulted in the power to prolong a productive life, as well as to delay inevitable death. Those victims of long-term pain and suffering, as well as patients in vegetative states and irreversible comas, are the most directly affected. A longer survival involves considerable cost and can therefore be a substantial financial burden to the family and the government. Is it worth it? How do we make a judgment about quality of life? What is the financial value of another day, week, or year of life? Should we assume that younger years are better than older years? The following reality check provides some perspective as to how one might respond to the preceding questions. End of Life or Beginning of Life? My mother is 92 years old, and she is more active and is enjoying life more than when she was much younger. Her advanced age has actually proven to be something of an advantage, as it has given her the time and freedom to do some of the things she couldn’t do while she was raising a family. It has been a joy to me, as her son, and to the rest of the family to witness her joy and vigor. Even strangers have found her stamina to be an inspiration as to the value of the end years of life. Three years ago, however, it wasn’t so. Mother was critically ill, comatose on a respirator in an intensive care unit. Survival was not considered likely. I am embarrassed to say that I was making arrangements for a funeral. I am even more embarrassed because I am a physician and did not see how she could survive for long except as a vegetable. Then the unlikely occurred. She recovered! Her condition rapidly and surprisingly improved dramatically including both physical and mental status, and she promptly resumed a life even more active than before. It would have been a tra ...

1. CHAPTER18
End-of-Life Issues
© sfam_photo/Shutterstock
When we finally know we are dying, and all other sentient being
s are dying with us, we start to have a burning, almost heart bre
aking sense of the fragility and preciousness of each moment an
d each being, and from this can grow a deep, clear, limitless co
mpassion for all beings.
—Sogyal Rinpoche
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Discuss the human struggle to survive and the right to autono
mous decision making.
• Describe how patient autonomy has been impacted by case la
w and legislative enactments.
• Discuss the following concepts: preservation of life with limit
s, euthanasia, advance directives, futility of treatment, withhold
ing and withdrawal of treatment, and do-not-resuscitate orders.
• Explain end-of-
life issues as they relate to autopsy, organ donations, research, e
xperimentation, and clinical trials.
• Describe how human genetics and stem cell research can have
an impact on end-of-life issues.
The human struggle to survive and dreams of immortality have l
ong been instrumental in inspiring medicine to develop the mea
ns to prevent and cure illness. Advances in medical technology
have resulted in the power to prolong a productive life, as well
as to delay inevitable death. Those victims of long-
term pain and suffering, as well as patients in vegetative states
and irreversible comas, are the most directly affected. A longer
survival involves considerable cost and can therefore be a subst
antial financial burden to the family and the government. Is it w

2. orth it? How do we make a judgment about quality of life? What
is the financial value of another day, week, or year of life? Sho
uld we assume that younger years are better than older years? T
he following reality check provides some perspective as to how
one might respond to the preceding questions.
End of Life or Beginning of Life?
My mother is 92 years old, and she is more active and is enjoyin
g life more than when she was much younger. Her advanced age
has actually proven to be something of an advantage, as it has g
iven her the time and freedom to do some of the things she coul
dn’t do while she was raising a family. It has been a joy to me,
as her son, and to the rest of the family to witness her joy and vi
gor. Even strangers have found her stamina to be an inspiration
as to the value of the end years of life. Three years ago, howeve
r, it wasn’t so. Mother was critically ill, comatose on a respirato
r in an intensive care unit. Survival was not considered likely. I
am embarrassed to say that I was making arrangements for a fun
eral. I am even more embarrassed because I am a physician and
did not see how she could survive for long except as a vegetable
. Then the unlikely occurred. She recovered! Her condition rapi
dly and surprisingly improved dramatically including both physi
cal and mental status, and she promptly resumed a life even mor
e active than before. It would have been a tragedy to deprive her
of these joyous years of her life after she worked and sacrificed
so much for others most of her life. I had thought it would be a
n act of mercy to disconnect the respirator when her condition h
ad looked so hopeless. I was so wrong. I learned that we must n
ot make life and death decisions casually. Life is a beautiful my
stery with many wonderful surprises if we will let them happen.
Advances in medical technology have made it possible to surviv
e to an older age. Although our bodies may physically decline o
ver time, our treasure trove of life experiences accrues over tim
e. Our knowledge and judgment may often be better than when
we were younger. Furthermore, the aged may be a source of com
fort and joy to their children, grandchildren, and even great-

3. grandchildren. As long as we are alive, we have value.
—Anonymous
Discussion
1. Discuss how a living will might have changed the patient’s o
utcome.
2. Discuss what criteria you would use in determining when to
hold on and when to let go of a loved one. After reading this ch
apter, reconsider how your criteria might change.
End-of-
life issues continue to cause the most controversy and debate fa
cing healthcare providers. Although it is well settled that compe
tent terminally ill patients may refuse life-
sustaining treatment, physician-
assisted suicide remains a major point of contention. The compe
ting concerns of privacy, morality, patient autonomy, legislation
, and states’ interests swirl around those involved in the decisio
n-
making process. The scope of healthcare ethics is not limited to
philosophical issues but embraces economic, political, and medi
cal dilemmas.
The primary emphasis in this chapter is placed on a patient’s aut
onomy and one’s right to choose when to proceed with treatmen
t or discontinue it. Discussed to a lesser extent are issues relatin
g to autopsy, organ donations, research and experimentation, sur
rogacy, and
human genetics.
18.1 PATIENT AUTONOMY AND CASE LAW
No right is held more sacred, or is more carefully guarded, by th
e common law, than the right of every individual to the possessi
on and control of his own person, free from all restraint or inter
ference of others, unless by clear and unquestioned authority of
law.1
Medical ethics does not require that a patient’s life be preserved
at all costs and in all circumstances. The ethical integrity of the

4. profession is not threatened by allowing competent patients to
decide for themselves whether a particular medical treatment is
in their best interests. If the doctrine of informed consent and ri
ght of privacy has as its foundations the right to bodily integrity
and control of one’s own fate, then those rights are superior to
the institutional considerations of hospitals and their medical st
affs. A state’s interest in maintaining the ethical integrity of a p
rofession does not outweigh, for example, a patient’s right to re
fuse blood transfusions.
This section reviews a variety of ethical and legal issues that in
evitably arise when one approaches the end of life. To analyze e
nd-of-
life questions, it is necessary to consider first what rights a com
petent patient possesses. Both case law and statutory law have p
resented a diversity of policies and points of view. Courts often
point to common law and the early case of Schloendorff v. Soci
ety of New York Hospital2 to support their belief in a patient’s
right to self-determination. The Schloendorff court stated:
Every human being of adult years and sound mind has a right to
determine what shall be done with his own body and a surgeon
who performs an operation without his patient’s consent commit
s an assault, for which he is liable in damages, except in cases o
f emergency where the patient is unconscious and where it is ne
cessary to operate before consent can be obtained.3
This right of self-
determination was emphasized in In re Storar4 when the court a
nnounced that every human being of adult years and sound mind
has the right to determine what shall be done with his or her ow
n body. The Storar case was a departure from the New Jersey Su
preme Court’s rationale in the case of In re Quinlan.
The Quinlan case was the first to significantly address the issue
of whether euthanasia should be permitted when a patient is ter
minally ill. The Quinlan court, relying on Roe v. Wade,5 annou
nced that the constitutional right to privacy protects a patient’s
right to self-

5. determination. The court noted that the right to privacy “is broa
d enough to encompass a patient’s decision to decline medical tr
eatment under certain circumstances, in much the same way as i
t is broad enough to encompass a woman’s decision to terminate
pregnancy under certain conditions.”6 Karen’s father was grant
ed full power to make decisions regarding Karen’s treatment. Af
ter the concurrence of the guardian and family, if Karen’s physi
cians concluded that there was no reasonable possibility of her e
merging from her comatose condition to a cognitive, sapient stat
e and that her life support apparatus should be withdrawn, they
were to consult with the ethics committee of the institution whe
re Karen was then hospitalized. If that consultative body concur
red in the prognosis, the life support system could be withdrawn
without any civil or criminal liability on the part of any partici
pant, whether it is the guardian, physician, hospital, or others. I
n addressing itself to the question of possible homicide, the cou
rt concluded that there is a valid distinction between withdrawin
g life support systems in cases such as Karen’s and the inflictio
n of deadly harm either on one’s self or another.
The Quinlan court, in reaching its decision, applied a test balan
cing the state’s interest in preserving and maintaining the sancti
ty of human life against Karen’s privacy interest. It decided that
, especially in light of the prognosis (physicians determined that
Karen Quinlan was in an irreversible coma), the state’s interest
did not justify interference with her right to refuse treatment. T
hus, Karen Quinlan’s father, appointed as her legal guardian, re
quested that the respirator be turned off. Opponents of euthanasi
a argued that before the Quinlan decision, any form of euthanasi
a was defined as murder by the U.S. legal system. Although acts
of euthanasia did take place, the law was applied selectively, a
nd the possibility of criminal sanctions against active participan
ts in euthanasia was enough to deter most physicians from assist
ing a patient in committing euthanasia.
Despite intense criticism by legal and religious scholars, the Qu
inlan decision paved the way for courts to consider extending th
e right to decline treatment to incompetents as well. State courts

6. recognize the right but differ on how this right is to be exercise
d.
In the same year as the Quinlan decision, the case of Superinten
dent of Belchertown State School v. Saikewicz7 was decided. In
this case, the court, using the balancing test enunciated in Quin
lan, approved the recommendation of a court-
appointed guardian that it would be in Saikewicz’s best interests
to end chemotherapy treatment. Saikewicz was a mentally retar
ded, 67-year-
old patient suffering from leukemia. The court found from the e
vidence that the prognosis was grim, and even though a “normal
person” would probably have chosen chemotherapy, it allowed
Saikewicz to die without treatment to spare him the suffering. A
lthough the court also followed the reasoning of the Quinlan opi
nion in giving the right to an incompetent to refuse treatment, b
ased on either the “objective best interests” test or the “subjecti
ve substituted judgment” test (the latter of which it favored bec
ause Mr. Saikewicz had always been incompetent), the court de
parted from Quinlan in a major way. It rejected the Quinlan app
roach of entrusting a decision concerning the continuance of arti
ficial life support to the patient’s guardian, family, attending ph
ysicians, and a hospital ethics committee.
The Saikewicz court asserted that even though a judge might fin
d the opinions of physicians, medical experts, or hospital ethics
committees helpful in reaching a decision, there should be no re
quirement to seek out their advice. The court decided that questi
ons of life and death with regard to an incompetent should be th
e responsibility of the courts, which would conduct detached bu
t passionate investigations. The court took a “dim view of any a
ttempt to shift the ultimate decision-
making responsibility away from duly established courts of prop
er jurisdiction to any committee, panel, or group, ad hoc or per
manent.”8
This main point of difference between the Saikewicz and Quinla
n cases marked the emergence of two different policies on the in
competent’s right to refuse treatment. One line of cases has foll

7. owed Saikewicz and supports court approval before physicians a
re allowed to withhold or withdraw life support. Advocates of th
is view argue that it makes more sense to leave the decision to a
n objective tribunal than to extend the right of a patient’s privac
y to a number of interested parties, as was done in Quinlan. The
y also attack the Quinlan method as being a privacy decision eff
ectuated by popular vote.9
Six months after Saikewicz, the Massachusetts Appeals Court n
arrowed the need for court intervention in In re Dinnerstein10 b
y finding that no-
code orders are valid to prevent the use of artificial resuscitativ
e measures on incompetent, terminally ill patients. The court wa
s faced with the case of a 67-year-
old woman who was suffering from Alzheimer’s disease. It was
determined that she was permanently comatose at the time of tri
al. Furthermore, the court decided that Saikewicz-
type judicial proceedings should take place only when medical t
reatment could offer a reasonable expectation of effecting a per
manent or temporary cure of or relief from the illness.
The Massachusetts Supreme Judicial Court attempted to clarify i
ts Saikewicz opinion with regard to court orders in In re Spring.
11 It held that such different factors as the patient’s mental imp
airment and his or her medical prognosis with or without treatm
ent must be considered before judicial approval is necessary to
withdraw or withhold treatment from an incompetent patient. Th
e problem in all three cases is that there is still no clear guidanc
e as to exactly when the court’s approval of the removal of life
support systems would be necessary. Saikewicz seemed to dema
nd judicial approval in every case. Spring, however, in partially
retreating from that view, stated that it did not have to articulate
what combination of the factors it discussed, thus making prior
court approval necessary.
The inconsistencies presented by the Massachusetts cases led m
ost courts since 1977 to follow the parameters set by Quinlan, r
equiring judicial intervention. In cases where physicians have c
ertified the irreversible nature of a patient’s loss of consciousne

8. ss, a neurologic team could certify the patient’s hopeless neurol
ogic condition, at which point a guardian would be free to take t
he legal steps necessary to remove life support systems. The ma
in reason for the appointment of a guardian is to ensure that inc
ompetents, like all other patients, maintain their right to refuse t
reatment.
Most holdings indicate that because a patient has the constitutio
nal right of self-
determination, those acting on the patient’s behalf can exercise
that right when rendering their best judgment concerning how th
e patient would assert the right. This substituted judgment doctr
ine could be argued on standing grounds, whereby a second part
y has the right to assert the constitutional rights of another whe
n that second party’s intervention is necessary to protect the oth
er’s constitutional rights. The guardian’s decision is sound if ba
sed on the known desires of a patient who was competent imme
diately before becoming comatose.
Courts adhering to the Quinlan rationale have recognized that fa
ct, and in 1984, the highest state court of Florida took the lead a
nd accepted the living will as persuasive evidence of an incomp
etent’s wishes. In John F. Kennedy Memorial Hospital v. Bludw
orth,12 the Florida Supreme Court allowed an incompetent patie
nt’s wife to act as his guardian, and in accordance with the term
s of a living will he executed in 1975, she could substitute her j
udgment for that of her husband. She asked to have a respirator
removed. The court declined the necessity of prior court approv
al, finding that the constitutional right to refuse treatment had b
een decided in Satz v. Perlmutter.13 The court required the atte
nding physician to certify that the patient was in a permanent ve
getative state, with no reasonable chance for recovery, before a
family member or guardian could request termination of extraor
dinary means of medical treatment.
In keeping with Saikewicz, the decision maker would attempt to
ascertain the incompetent patient’s actual interests and preferen
ces. Court involvement would be mandated only to appoint a gu
ardian in one of the following cases:

9. • Family members disagree as to the incompetent’s wishes
• Physicians disagree on the prognosis
• The patient’s wishes cannot be known because he or she alwa
ys has been incompetent
The decision in John F. Kennedy Memorial Hospital v. Bludwor
th increased the desire of the public, courts, and religious group
s to know when a patient is considered to be legally dead and w
hat type of treatment can be withheld or withdrawn. Most cases
dealing with euthanasia speak of the necessity that a physician d
iagnose a patient as being either in a persistent vegetative state1
4 or terminally ill.15
18.2 CONSTITUTIONAL RIGHT TO REFUSE CARE
The Missouri Supreme Court applied the Westchester ruling and
held that the family of 32-year-
old Nancy Cruzan, who was in a persistent vegetative state sinc
e 1983, could not order physicians to remove artificial nutrition.
16 In 1983, she had sustained injuries in a car accident, in whic
h her car overturned, and after which she was found face down i
n a ditch without respiratory or cardiac function. Although unco
nscious, her breathing and heartbeat were restored at the site of
the accident. On examination at the hospital to which she was ta
ken, a neurosurgeon diagnosed her as having suffered cerebral c
ontusions and anoxia. It was estimated that she had been depriv
ed of oxygen for 12 to 14 minutes. After remaining in a coma fo
r 3 weeks, Cruzan went into an unconscious state. At first, she
was able to ingest some food orally. Thereafter, surgeons impla
nted a gastrostomy feeding and hydration tube, with the consent
of her husband, to facilitate feeding her. She did not improve, a
nd until December 1990, she lay in a Missouri state hospital in a
persistent vegetative state that was determined to be irreversibl
e, permanent, progressive, and ongoing. She was not dead, accor
ding to the accepted definition of death in Missouri, and physici
ans estimated that she could live in the vegetative state for an a
dditional 30 years. Because of the prognosis, Cruzan’s parents a
sked the hospital staff to cease all artificial nutrition and hydrat

10. ion procedures. The staff refused to comply with their wishes wi
thout court approval. The state trial court granted authorization
for termination, finding that Cruzan had a fundamental right—
grounded in both the state and federal constitutions—
to refuse or direct the withdrawal of death-
prolonging procedures. Testimony at trial from a former roomm
ate of Cruzan indicated to the court that she had stated that if sh
e were ever sick or injured, she would not want to live unless sh
e could live halfway normally. The court interpreted that conver
sation, which had taken place when Cruzan was 25 years old, as
meaning that she would not want to be forced to take nutrition a
nd hydration while in a persistent vegetative state.
The case was appealed to the Missouri Supreme Court, which re
versed the lower court decision. The court not only doubted that
the doctrine of informed consent applied to the circumstances o
f the case, it moreover would not recognize a broad privacy righ
t from the state constitution that would support the right of a pe
rson to refuse medical treatment in every circumstance. Because
Missouri recognizes living wills, the court held that Cruzan’s p
arents were not entitled to order the termination of her treatmen
t because “no person can assume that choice for an incompetent
in the absence of the formalities required under Missouri’s Livi
ng Will statutes or the clear and convincing, inherently reliable
evidence absent here.”17 The court found that Cruzan’s stateme
nts to her roommate did not rise to the level of clear and convin
cing evidence of her desire to end nutrition and hydration.
In June 1990, the U.S. Supreme Court heard oral arguments and
held that:
• The U.S. Constitution does not forbid Missouri from requirin
g that there be clear and convincing evidence of an incompetent
’s wishes as to the withdrawal of life-sustaining treatment.
• The Missouri Supreme Court did not commit constitutional er
ror in concluding that evidence adduced at trial did not amount t
o clear and convincing evidence of Cruzan’s desire to cease hyd
ration and nutrition.
• Due process did not require the state to accept the substituted

11. judgment of close family members, absent substantial proof that
their views reflected those of the patient.18
In delivering the opinion of the Supreme Court, Justice William
Rehnquist noted that although most state courts have applied the
common law right to informed consent or a combination of that
right and a privacy right when allowing a right to refuse treatm
ent, the Supreme Court analyzed the issues presented in the Cru
zan case in terms of a Fourteenth Amendment liberty interest, fi
nding that a competent person has a constitutionally protected ri
ght grounded in the due process clause to refuse lifesaving hydr
ation and nutrition. Missouri provided for the incompetent by al
lowing a surrogate to act for the patient in choosing to withdraw
hydration and treatment. Moreover, it put procedures into place
to ensure that the surrogate’s action conforms to the wishes exp
ressed by the patient when he or she was competent. Although r
ecognizing that Missouri had enacted a restrictive law, the Supr
eme Court held that right-to-
die issues should be decided pursuant to state law, subject to a d
ue process liberty interest, and in keeping with state constitutio
nal law. After the Supreme Court rendered its decision, the Cruz
ans returned to Missouri probate court, where on November 14,
1990, Judge Charles Teel authorized physicians to remove the fe
eding tubes from Cruzan. The judge determined that testimony p
resented to him early in November demonstrated clear and convi
ncing evidence that Nancy would not have wanted to live in a pe
rsistent vegetative state. Several of her coworkers testified that
she told them before her accident that she would not want to liv
e like a vegetable. On December 26, 1990, 2 weeks after her fee
ding tubes were removed, Nancy Cruzan died.
18.3 LEGISLATIVE RESPONSE
After the Cruzan decision, states began to rethink existing legisl
ation and draft new legislation in the areas of living wills, durab
le powers of attorney, healthcare proxies, and surrogate decisio
n making. Pennsylvania and Florida were two of the first states
to react to the Cruzan decision. The new Pennsylvania law is ap

12. plied to terminally ill or permanently unconscious patients. The
statute, the Advance Directive for Health Care Act,19 deals mai
nly with individuals who have prepared living wills. It includes
in its definition of life-
sustaining treatment the administration of hydration and nutritio
n by any means if it is stated in the individual’s living will. The
statute mandates that a copy of the living will be given to the p
hysician to be effective. Furthermore, the patient must be incom
petent or permanently unconscious. If there is no evidence of th
e presence of a living will, the Pennsylvania probate codes allo
w an attorney-in-
fact who was designated in a properly executed durable power o
f attorney document to give permission for “medical and surgica
l procedures to be utilized on an incompetent patient.”20
The Supreme Court stated in Cruzan that only 15% of the popul
ation has signed a living will or other type of medical directive.
In light of that fact, more states will have to address the proble
m of surrogate decision making for an incompetent. Legislation
would not only have to include direction to consider evidence of
an incompetent’s wishes that had been expressed when he or sh
e was competent, but also should include provisions for conside
ration and protection of an incompetent who never stated what h
e or she would want done if in a terminally ill or persistent vege
tative state.
Unless there is some national uniformity in the legislation, patie
nts and their families will shop for states that will allow them to
have medical treatment terminated or withdrawn with as few le
gal hassles as possible. For example, on January 18, 1991, a Mis
souri probate court judge authorized a father to take his 20-
year-old brain-
damaged daughter, Christine Busalacchi, from the Missouri Reh
abilitation Center to Minnesota for testing by a pro-
euthanasia physician, Dr. Cranford. Cranford, who practiced at t
he Hennepin County Medical Center, was the center of controve
rsy in Minnesota. In January 1991, Pro-
Life Action Ministries demanded Cranford’s resignation, claimi

13. ng that he “desires to make Minnesota the killing fields for the
disabled.”21 He, however, viewed himself as an advocate of pat
ients’ rights. Although the situation involving Cranford is resol
ved, it is clear that the main reason Busalacchi sought authoriza
tion to take his daughter to Minnesota is that he believed that he
would have to deal with fewer legal impediments there to allow
his daughter to die.
Because of the continuing litigation concerning the right-to-
die issue, it is clear that the public must be educated about the n
ecessity of expressing their wishes concerning medical treatmen
t while they are competent. Uniformity with regard to the legal i
nstruments available for demonstrating what a patient wants sho
uld be a common goal of legislators, courts, and the medical pro
fession. If living wills, surrogates, and durable powers of attorn
ey were to be enacted pursuant to national, rather than individua
l state, guidelines, the result should be a greater ease in resolvin
g the myriad conflicting issues in this area. Some states have ad
dressed the problem by statutorily providing for these instrumen
ts, thereby enabling individuals to have a say in the medical car
e they should receive if they become unable to speak for themse
lves.
Chief Justice Dore of the Washington Supreme Court voiced his
opinion that a legislative response to right-to-
die issues could be better addressed by the legislature.
The United States Supreme Court, in Cruzan, questioned whethe
r a federally protected right to forgo nutrition and hydration exi
sted. The Cruzan Court confronted the same philosophical issue
s that we face today and wisely recognized and deferred to the L
egislature’s superior policymaking abilities. As was the case in
Cruzan, our legislature is far better equipped to evaluate this co
mplex issue and should not have its power usurped by the court.
22
Patient Self-Determination Act of 1990
The Patient Self-
Determination Act of 1990 (PSDA)23 was enacted to ensure tha
t patients are informed of their rights to execute advance directi

14. ves and accept or refuse medical care. On December 1, 1991, th
e PSDA24 took effect in hospitals, skilled nursing facilities, ho
me health agencies, hospice organizations, and health maintenan
ce organizations serving Medicare and Medicaid patients. As a r
esult of implementation of the PSDA,25 healthcare organization
s participating in the Medicare and Medicaid reimbursement pro
grams must address patient rights regarding life-
sustaining decisions and other advance directives. Healthcare or
ganizations have a responsibility to explain to patients, staff, an
d families that patients have a legal right to direct their own me
dical and nursing care as it corresponds to existing state law, in
cluding right-to-
die directives. A person’s right to refuse medical treatment is no
t lost when his or her mental or physical status changes. When a
person is no longer competent to exercise his or her right of sel
f-
determination, the right still exists, but the decision must be del
egated to a surrogate decision maker. Those organizations that d
o not comply with a patient’s medical directives or those of a le
gally authorized decision maker are exposing themselves to the
risk of a lawsuit.
Each state is required under PSDA to provide a description of th
e law in the state regarding advance directives to providers, whe
ther such directives are based on state statutes or judicial decisi
ons. Providers must ensure that written policies and procedures
with respect to all adult individuals regarding advance directive
s are established as follows:
[a] to provide written information to each such individual conce
rning
(i) an individual’s rights under State law (whether statutory or a
s recognized by the courts of the State) to make decisions conce
rning such medical care, including the right to accept or refuse
medical or surgical treatment and the right to formulate advance
directives … and
(ii) written policies of the provider organization respecting the i
mplementation of such rights;

15. [b] to document in the individual’s medical record whether or n
ot the individual has executed an advance directive;
[c] not to condition the provision of care or otherwise discrimin
ate against an individual based on whether or not the individual
has executed an advance directive;
[d] to ensure compliance with requirements of State law (wheth
er statutory or recognized by the courts of the State) respecting
advance directives at the facilities of the provider or organizatio
n; and
[e] to provide (individually or with others) for education for sta
ff and the community on issues concerning advance directives.2
6
Although the PSDA is being cheered as a major advancement in
clarifying and nationally regulating this often-
obscure area of law and medicine, there are continuing problems
and new issues that must be addressed. Providers of care who d
o not comply with the PSDA are not entitled to reimbursement u
nder the Medicare program if they fail to meet PSDA requireme
nts.
18.4 DEFINING DEATH
When is a patient considered to be legally dead, and what type o
f treatment can be withheld or withdrawn? Most cases dealing w
ith euthanasia speak of the necessity for a physician to diagnose
a patient as being either in a persistent vegetative state or termi
nally ill.
Traditionally, the definition of death adopted by the courts has
been the Black’s Law Dictionary definition: “cessation of respir
ation, heartbeat, and certain indications of central nervous syste
m activity, such as respiration and pulsation.”27 Currently, how
ever, modern science has the capacity to sustain vegetative func
tions of those in irreversible comas. Medical equipment can sust
ain heartbeat and respiration even in the face of brain death. Wi
th thousands of patients existing in the twilight state of life at t
his time, every appellate court that has ruled on the question has
recognized that the irreversible cessation of brain function cons

16. titutes death.
Ethicists who advocate the prohibition on taking action to short
en life agree that, “where death is imminent and inevitable, it is
permissible to forgo treatments that would only provide a precar
ious and painful prolongation of life, as long as the normal care
due to the sick person in similar cases is not interrupted.”28
Brain Death Criteria
The Harvard Ad Hoc Committee on Brain Death published a rep
ort in 1968 describing the characteristics of a permanently nonf
unctioning brain, a condition it referred to as “irreversible coma
,” now known as brain death:
1. Patient shows total unawareness to external stimuli and unre
sponsiveness to painful stimuli.
2. No movements or breathing: All spontaneous muscular move
ment, spontaneous respiration, and response to stimuli are absen
t.
3. No reflexes: Fixed, dilated pupils; no eye movement even wh
en hit or turned, or when ice water is placed in the ear; no respo
nse to noxious stimuli; no tendon reflexes.
In addition to these criteria, a flat electroencephalogram was rec
ommended.29
Relying on the 1968 Harvard Criteria set forth by the Ad Hoc C
ommittee of the Harvard Medical School to Examine the Definit
ion of Brain Death, the American Medical Association (AMA) i
n 1974 accepted that death occurs when there is “irreversible ce
ssation of all brain functions including the brain stem.”30 Most
states recognize brain death by statute or judicial decision. New
York, for example, in People v. Eulo,31 in rejecting the traditio
nal cardiopulmonary definition of death, announced that the det
ermination of brain death can be made according to acceptable
medical standards. The court also repeated its holding in In re S
torar32 that clear and convincing evidence of a person’s desire t
o decline extraordinary medical care may be honored and that a
third person may not exercise this judgment on behalf of a perso
n who has not or cannot express the desire to decline treatment.
Following the Bludworth logic, the court noted that healthcare p

17. rofessionals acting within these cases should not face liability.
The clear and convincing evidence standard was defined more s
uccinctly by the New York Court of Appeals in In re Westcheste
r County Medical Center ex rel. O’Connor.33 There, the court d
etermined that artificial nutrition could be withheld from O’Con
nor, a stroke victim who was unable to converse or feed herself.
The court held that “nothing less than unequivocal proof of a p
atient’s wishes will suffice when the decision to terminate life s
upport is at issue.”34 Factors outlined by the court in determini
ng the existence of clear and convincing evidence of a patient’s
intention to reject the prolongation of life by artificial means w
ere the following:
• The persistence of statements regarding an individual’s belief
s
• The desirability of the commitment to those beliefs
• The seriousness with which such statements were made
• The inferences that may be drawn from the surrounding circu
mstances
18.5 FUTILITY OF TREATMENT
Futility of treatment, as it relates to medical care, occurs when
a physician recognizes that the effect of continuing treatment wi
ll be of no benefit to the patient. Morally, a physician has a dut
y to inform the patient when there is little likelihood of success.
The determination as to futility of medical care is a scientific d
ecision.
After a diagnosis has been made that a person is terminally ill w
ith no hope of recovery and is in a chronic vegetative state with
no possibility of attaining cognitive function, a state generally h
as no compelling interest in maintaining life. The decision to fo
rgo or terminate life support measures is, at this point, simply a
decision that the dying process will not be artificially extended.
Although the state has an interest in the prolongation of life, it
has no interest in the prolongation of dying, and although there
is a moral and ethical decision to be made to end the process, th
at decision can be made only by the surrogate. The decision of
whether to end the dying process is a personal decision for fami

18. ly members or those who bear a legal responsibility for the patie
nt.
A determination as to the futility of medical care is a decision t
hat must be made by a physician. Even if death is not imminent,
but a patient’s coma is irreversible beyond doubt and there are
adequate safeguards to confirm the accuracy of the diagnosis wi
th the concurrence of those responsible for the patient’s care, it
is not unethical to discontinue all means of life-
prolonging medical treatment.
18.6 DO-NOT-RESUSCITATE ORDERS
Cardiopulmonary resuscitation (CPR) is an emergency procedur
e performed on individuals who experience a cardiac arrest. It i
nvolves chest compressions and exhaling into one’s mouth in or
der to restore circulation in order to preserve brain function. In
1960, the American Heart Association began a program that was
initially designed to educate physicians on closed-
chest cardiac resuscitation. CPR has generated a variety of ethic
al dilemmas that include the use of limited resources on those w
ho have been determined to be in a comatose, vegetative state w
ith no hope of recovery.
Do-not-
resuscitate (DNR) orders are those prescribed by a physician ind
icating that, in the event of a cardiac or respiratory arrest, no re
suscitative measures should be used to revive the patient. A DN
R order is an extremely difficult decision to make for both the p
atient and family. It is generally made when one’s quality of lif
e has been so diminished that “heroic” rescue methods are no lo
nger in the patient’s best interests. The attending physician or h
is or her designee may initiate a DNR order at the request of or
with the agreement of the patient or the legally appointed health
care decision maker. A DNR order may be written if the patient
has an executable advance directive with instructions regarding
DNR status and/or if the transfer information from an extended-
care facility indicates the patient should have a DNR order. If a
patient lacks the ability to make a decision regarding a DNR ord

19. er, the patient’s legally appointed decision maker can make suc
h decisions provided it can be demonstrated that the decision m
aker is following the patient’s wishes. Advance directives, such
as living wills, are helpful in determining a patient’s wishes.
DNR orders must be in writing and signed and dated by the phys
ician. Appropriate consents must be obtained either from the pat
ient or his or her healthcare agent. Many states have acknowled
ged the validity of DNR orders in cases involving terminally ill
patients in which the patients’ families make no objections to su
ch orders.
DNR orders must comply with statutory requirements, be of sho
rt duration, and be reviewed periodically to determine whether t
he patient’s condition or other circumstances (e.g., change of mi
nd by the patient or family) surrounding the “no-
code” orders have changed. Presently, it is generally accepted th
at if a patient is competent, the DNR order is considered to be t
he same as other medical decisions in which a patient may choo
se to reject life-
sustaining treatment. In the case of an incompetent, absent any
advance written directives, the best interests of the patient woul
d be considered.
Competent Patients and No-Code Orders
Should relatives of a patient agree to a no-
code order when the patient is competent to make his or her own
decision? In Payne v. Marion General Hospital,35 the Indiana
Court of Appeals overturned a lower court decision in favor of t
he physician. The physician had issued a no-
code status on Payne despite evidence given by a nurse that, up
to a few minutes before his death, Payne could communicate. Th
e physician had determined that Payne was incompetent, thereby
rendering him unable to give informed consent to treatment. Be
cause Payne left no written directives, the physician relied on o
ne of Payne’s relatives, who asked for the DNR order. The court
found that there was evidence that Payne was not incompetent a
nd should have been consulted before a DNR order was given (F
igure 18-

20. 1). Furthermore, the court reviewed testimony that, 1 year earlie
r, Payne had suffered and recovered from the same type of symp
toms, leading to the conclusion that there was a possibility that
he could have survived if resuscitation had continued. There wa
s no DNR policy in place at the hospital to assist the physician i
n making his decision. To avoid this type of problem, healthcare
providers should adopt an appropriate process with respect to is
suing no code orders.
18.7 WITHHOLDING AND WITHDRAWAL OF TREATMENT
Withholding of treatment is a decision not to initiate treatment
or medical intervention for the patient. This is a decision often
made when death is imminent and there is no hope of recovery.
Withdrawal of treatment is a decision to discontinue treatment o
r medical interventions for the patient when death is imminent a
nd cannot be prevented by available treatment. Withholding or
withdrawing treatment should be considered when:
© Marc F Gutierrez/Shutterstock
Figure 18-1 Do-Not-Resuscitate orders.
• the patient is in a terminal condition and there is a reasonable
expectation of imminent death of the patient;
• the patient is in a noncognitive state with no reasonable possi
bility of regaining cognitive function; and/or
• restoration of cardiac function will last for a brief period.
Theologians and ethicists have long recognized a distinction bet
ween ordinary and extraordinary medical care. The theological
distinction is based on the belief that life is a gift from God that
should not be destroyed deliberately by humans. Therefore, ext
raordinary therapies that extend life by imposing grave burdens
on the patient and family are not required.
Although the courts have accepted decisions to withhold or with
draw extraordinary care, especially the respirator, from those w
ho are comatose or in a persistent vegetative state with no possi
bility of emerging, they have been unwilling until recent years t
o discontinue feeding, which they have considered to be ordinar

21. y care. For example, the Illinois Supreme Court, in In re Estate
of Longeway,36 found that the authorized guardian of a termina
lly ill patient in an irreversible coma or persistent vegetative sta
te has a common law right to refuse artificial nutrition and hydr
ation. The court found that there must be clear and convincing e
vidence that the refusal is consistent with the patient’s interest.
The court also required the concurrence of the patient’s attendin
g physician and two other physicians. Court intervention is also
necessary to guard against the possibility that greed may taint th
e judgment of the surrogate decision maker. Although there may
be a duty to provide life-
sustaining equipment in the immediate aftermath of cardiopulm
onary arrest, there is no duty to continue its use when it has bec
ome futile and ineffective to do so in the opinion of qualified m
edical personnel.
The New Jersey Supreme Court in 1985 heard the case of In re
Claire C. Conroy.37 The case involved an 84-year-
old nursing home patient whose nephew petitioned the court for
authority to remove the nasogastric tube that was feeding her. T
he court overturned the appellate division decision and held that
life-
sustaining treatment, including nasogastric feeding, could be wi
thheld or withdrawn from incompetent nursing home patients w
ho will, according to physicians, die within 1 year, in three spec
ific circumstances. These are as follows:
1. When it is clear that the particular patient would have refuse
d the treatment under the circumstances involved (the subjective
test)
2. When there is some indication of the patient’s wishes (but he
or she has not “unequivocally expressed” his or her desires bef
ore becoming incompetent) and the treatment “would only prolo
ng suffering” (the limited objective test)
3. When there is no evidence at all of the patient’s wishes, but t
he treatment “clearly and markedly outweighs the benefits the p
atient derives from life” (the pure objective test based on pain)3
8

22. A procedure involving notification of the state Office of the Om
budsman is required before withdrawing or withholding treatme
nt under any of the three tests. The ombudsman must make a sep
arate recommendation.
The court also found tubal feeding to be a medical treatment, an
d as such, it is as intrusive as other life-
sustaining measures. If physicians follow the Quinlan/Conroy st
andards and decide to end medical treatment of a patient, the du
ty to continue treatment ceases. Thus, the termination of treatme
nt becomes a lawful act.
Although Conroy presents case-
specific guidelines, there is concern that the opinion will have f
ar-
reaching repercussions. There is fear that decisions to discontin
ue treatment will not be based on the “balancing-of-
interests” test, but based on the “quality-of-life.” Those quality-
of-
life judgments would be most dangerous for nursing home patie
nts in which age would be a factor in the decision-
making process. “Advocates of ‘the right to life’ fear that the ‘ri
ght to die’ for the elderly and handicapped will become a ‘duty
to die.’”39 In both the Saikewicz and Spring cases, age was a de
termining factor weighing against life-
sustaining treatment. Furthermore, in In re Hier,40 the court fou
nd that Mrs. Hier’s age of 92 years made the “proposed gastrost
omy substantially more onerous or burdensome … than it would
be for a younger, healthier person.” Moreover, a New York Sup
erior Court held that the burdens of an emergency amputation fo
r an elderly patient outweighed the benefit of continued life.41
Finding that prolonging her life would be cruel, the court stated
that life had no meaning for her. Although some courts have rec
ognized the difference, other courts must still address the differ
ence between Quinlan-
type patients and older, confined, and conscious patients who ca
n interact but whose mental or physical functioning is impaired.
In a New Jersey case, however, the ombudsman denied a request

23. to remove feeding tubes from a comatose nursing home patient.
42 In applying the Conroy tests, the ombudsman decided that Hi
lda Peterson might live more than 1 year, the period that Conroy
used as a criterion for determining whether life support can be
removed.
To complicate this issue further, on March 17, 1986, the AMA c
hanged its code of ethics on comas.43 Now, physicians may ethi
cally withhold food, water, and medical treatment from patients
in irreversible comas or persistent vegetative states with no hop
e of recovery—
even if death is not imminent.44 Although physicians can consi
der the wishes of the patient and family or the legal representati
ves, they cannot cause death intentionally. The wording is permi
ssive, and thus, those physicians who feel uncomfortable withdr
awing food and water may refrain from doing so. The AMA’s de
cision does not comfort those who fear abuse or mistake in euth
anasia decisions, nor does it have any legal value as such. There
are physicians, nurses, and families who are unscrupulous and
have their own, and not the patient’s, interests in mind. Even wi
th the Conroy decision and the AMA’s Code of Ethics change, t
he feeding tube issue is not settled.
On April 23, 1986, the New Jersey Superior Court ruled that the
husband of severely brain-
damaged Nancy Jobes could order the removal of her life-
sustaining feeding tube, which would ultimately cause the 31-
year-
old comatose patient, who had been in a vegetative state in a ho
spice for 6 years, to starve to death.45 Dr. Fred Plum created an
d defined the term persistent vegetative state as one in which:
[t]he body functions entirely in terms of its internal controls. It
maintains temperature. It maintains digestive activity. It maintai
ns heart beat and pulmonary ventilation. It maintains reflex acti
vity of muscles and nerves for low-
level conditioned responses. But there is no behavioral evidence
of either self-
awareness or awareness of the surroundings in a learned manner

24. .46
Medical experts testified that the patient could, under optimal c
onditions, live another 30 years. Relieving the nursing home off
icials from removing the feeding tube, the court ruled that the p
atient could be taken home to die (with the removal to be superv
ised by a physician and medical care to be provided to the patie
nt at home).
The nursing home had petitioned the court for the appointment o
f a “life advocate” to fight for continuation of medical treatment
for Jobes, which, it argued, would save her life. The court disal
lowed the appointment of a life advocate, holding that case law
does not support requiring the continuation of life support syste
ms in all circumstances. Such a requirement, according to the co
urt, would contradict the patient’s right of privacy.
The court’s decision applied the principles enunciated in Quinla
n and Conroy and the ruling by the AMA’s Council on Judicial
Affairs that the provision of food and water is, under certain cir
cumstances, a medical treatment like any other and may be disc
ontinued when the physician and family of the patient feel it is
no longer benefiting the patient.
A mentally competent cerebral palsy patient, in Bouvia v. Super
ior Court, won her struggle to have feeding tubes removed even
though she was not terminally ill.47 The California Court of Ap
peals announced on April 16, 1986, that she could go home to di
e. The court found that Bouvia’s decision to let nature take its c
ourse did not amount to a choice to commit suicide with people
aiding and abetting it. The court stated that it is not “illegal or i
mmoral to prefer a natural, albeit sooner, death than a drugged l
ife attached to a mechanical device.”48 The court’s finding that
it was a moral and philosophic question, not a legal or medical
one, leaves one wondering if the courts are opening the door to
permitting legal starvation to be used by those who are not term
inally ill but who do wish to commit suicide.
Life-Sustaining Measures Became Futile
Although there may be a duty to provide life-
sustaining equipment in the immediate aftermath of cardiopulm

25. onary arrest, there is no duty to continue its use after it has beco
me futile and ineffective to do so in the opinion of qualified me
dical personnel. Two physicians in Barber v. Superior Court49
were charged with the crimes of murder and conspiracy to com
mit murder based on their acceding to requests of the patient’s f
amily to discontinue life support equipment and intravenous tub
es. The patient had suffered a cardiopulmonary arrest in the rec
overy room after surgery. A team of physicians and nurses reviv
ed the patient and placed him on life support equipment. The pa
tient had suffered severe brain damage, placing him in a comato
se and vegetative state from which, according to tests and exami
nations by other specialists, he was unlikely to recover. On the
written request of the family, the patient was taken off life supp
ort equipment. The family, his wife and eight children, made the
decision together after consultation with the physicians. Eviden
ce had been presented that the patient, before his incapacitation,
had expressed to his wife that he would not want to be kept aliv
e by a machine. There was no evidence indicating that the famil
y was motivated in their decision by anything other than love an
d concern for the dignity of their loved one. The patient continu
ed to breathe on his own. Because the patient showed no signs o
f improvement, the physicians again discussed the patient’s poo
r prognosis with the family. The intravenous lines were removed
, and the patient died sometime thereafter.
A complaint was then filed against the two physicians. The mag
istrate who heard the evidence determined that the physicians di
d not kill the deceased because their conduct was not the proxim
ate cause of the patient’s death. On motion of the prosecution, t
he superior court determined as a matter of law that the evidenc
e required the magistrate to hold the physicians to answer and o
rdered the complaint reinstated. The physicians then filed a writ
of prohibition with the court of appeals. The court of appeals h
eld that the physicians’ omission to continue treatment, althoug
h intentional and with knowledge that the patient would die, wa
s not an unlawful failure to perform a legal duty. The evidence a
mply supported the magistrate’s decision. The superior court err

26. ed in determining that, as a matter of law, the evidence required
the magistrate to hold the physicians to answer. The preemptor
y writ of prohibition to restrain the Superior Court of Los Angel
es from taking any further action in this matter—
other than to vacate its order reinstating the complaint and to en
ter a new and different order denying the people’s motion—
was granted.
18.8 EUTHANASIA
There is nothing more sacred than life and there is nothing more
natural in life to wish to cling on to it for those you love! And
nothing more cruel than to play God by artificially holding onto
that which God wants to bring home.
—Author Unknown
When patients and their families perceive a deterioration of the
quality of life and no end to unbearable pain, conflict often aris
es between healthcare professionals, who are trained to save liv
es, and patients and their families, who wish to end the sufferin
g. This conflict centers on the concept of euthanasia and its plac
e in the modern world. There seems to be an absence of controv
ersy only when a patient who is kept alive by modern technolog
y is still able to appreciate and maintain control over his or her
life.
Even the connotation of the word euthanasia has changed with ti
me depending on who is attempting to define it. Euthanasia orig
inated from the Greek word euthanatos, meaning “good death” o
r “easy death,” and was accepted in situations in which people h
ad what were considered to be incurable diseases. Euthanasia is
defined broadly as “the mercy killing of the hopelessly ill, injur
ed, or incapacitated.”50
Any discussion of euthanasia obliges a person to confront huma
nity’s greatest fear—
death. The courts and legislatures have faced it and have made a
dvances in setting forth some guidelines to assist decision make
rs in this arena; however, much more must be accomplished. So

27. ciety must be protected from the risks associated with permittin
g the removal of life support systems. Society cannot allow the
complex issues associated with this topic to be simplified to the
point where it is accepted that life can be terminated based on s
ubjective quality-of-
life considerations. The legal system must ensure that the consti
tutional rights of the patient are maintained, while protecting so
ciety’s interests in preserving life, preventing suicide, and main
taining the integrity of the medical profession. For example, can
competent adult patients who ask that no extraordinary lifesavi
ng measures be taken recover damages for finding themselves al
ive after unwanted resuscitative measures? During a medical em
ergency, it seems unrealistic to ask a caregiver to first look in a
patient’s medical record for an advance directive before tending
to the immediate needs of the patient. In the final analysis, the
boundaries of patient rights remain uncertain.
From its inception, euthanasia has evolved into an issue with co
mpeting legal, medical, and moral implications that continues to
generate debate, confusion, and conflict. Currently, there is a st
rong movement advocating death with dignity, which excludes
machines, monitors, and tubes. Figures 18-2 and 18-
3 illustrate and summarize the numerous ramifications of euthan
asia discussed in this chapter.
In the Confucian and Buddhist religions, suicide was an accepta
ble answer to unendurable pain and incurable disease. The Celts
went a step farther, believing that those who chose to die of dis
ease or senility, rather than committing suicide, would be conde
mned to Hell. Such acceptance began to change during the 1800
s when Western physicians refused to lessen suffering by shorte
ning a dying patient’s life. Napoleon’s physician, for example, r
ejected Napoleon’s plea to kill plague-
stricken soldiers, insisting that his obligation was to cure, rather
than kill, people.
In the late 1870s, writings on euthanasia began to appear, mainl
y in England and the United States. Although such works were
written, for the most part, by lay authors, the public and the me

28. dical community began to consider the issues raised by euthanas
ia. Then defined as the act or practice of painlessly putting to d
eath persons suffering from incurable conditions or diseases, it
was considered to be a merciful release from incurable suffering
. By the beginning of the 20th century, however, there were still
no clear answers or guidelines regarding the use of euthanasia.
Unlike in prior centuries when society as a whole supported or r
ejected euthanasia, different segments of today’s society apply
distinct connotations to the word, generating further confusion.
Some believe euthanasia is meant to allow a painless death whe
n one suffers from an incurable disease, yet is not dying. Others
, who remain in the majority, perceive euthanasia as an instrume
nt to aid only dying people in ending their lives with as little su
ffering as possible.
Figure 18-2 Ramifications of euthanasia.
It has been estimated that of the 2 million Americans who die ea
ch year, 80% die in hospitals or nursing homes, and 70% of thos
e die after a decision to forgo life-
sustaining treatment has been made. Although such decisions ar
e personal in nature and based on individual moral values, they
must comply with the laws applicable to the prolonging of the d
ying process. Courts have outlined the ways in which the govern
ment is allowed to participate in the decision-
making process. Yet the misconceptions and lack of clear direct
ion regarding the policies and procedures have resulted in wide
disparity among jurisdictions, both in legislation and in judicial
decisions. As a result, the AMA, the American Bar Association,
legislators, and judges are actively attempting to formulate and
legislate clear guidelines in this sensitive, profound, and not yet
fully understood area. To ensure compliance with the law, whil
e serving the needs of their patients, it is incumbent on healthca
re providers to keep themselves informed of the legislation enac
ted in this ever-changing field.
Figure 18-3 Issues of euthanasia.

29. To address the topic of euthanasia properly, it is necessary to un
derstand the precise meaning of the recognized forms of it. Rhet
orical phrases such as right to die, right to life, and death with d
ignity have obfuscated, rather than clarified, the understanding
of euthanasia. The dividing of euthanasia into two categories, ac
tive or passive, is for many the most controversial aspect of this
topic.
Active and Passive Euthanasia
Active euthanasia is commonly understood to be the intentional
commission of an act, such as providing a patient a lethal dose o
f a medication that results in death. The act, if committed by the
patient, is thought of as suicide. Moreover, because in most stat
es the patient cannot take his or her own life, any person who as
sists in the causing of the death could be subject to criminal san
ction for aiding and abetting suicide.
Passive euthanasia occurs when life-
saving treatment (such as a respirator) is withdrawn or withheld
, allowing the patient diagnosed as terminal to die a natural deat
h. Passive euthanasia is generally accepted pursuant to legislati
ve acts and judicial decisions.51 These decisions, however, gen
erally are based on the facts of a particular case. Regardless of t
he definitional differences, though, in both active and passive e
uthanasia, the end result is the same.
The distinctions are important when considering the duty and th
e liability of a physician who must decide whether to continue o
r initiate treatment of a comatose or terminally ill patient. Physi
cians are obligated to use reasonable care to preserve health and
to save lives, so unless fully protected by the law, they will be
reluctant to abide by patient or family wishes to terminate life s
upport devices.
Voluntary and Involuntary Euthanasia
Both active and passive euthanasia may be either voluntary or i
nvoluntary. Voluntary euthanasia occurs when the suffering inc
urable patient makes the decision to die. To be considered volun
tary, the request or consent must be made by a legally competen
t adult and be based on material information concerning the pos

30. sible ramifications and alternatives available. The term legally c
ompetent was addressed in a case concerning the right to refuse
treatment, Lane v. Candura.52 The case involved a patient who t
wice refused to permit surgeons to amputate her leg to prevent g
angrene from spreading. The patient’s daughter sought to be app
ointed as a legal guardian to enable her to consent to her mother
’s surgery. The appellate court, finding no evidence indicating t
hat Mrs. Lane was incapable of appreciating the nature and cons
equence of her decision, overturned the trial court’s holding of i
ncompetence. Even though Lane’s decision ultimately would lea
d to her death, she was found to be competent and thus was allo
wed to reject medical treatment.
Involuntary euthanasia occurs when a person other than the incu
rable person makes the decision to terminate the life of the incu
rable person (i.e., in cases of an incompetent or nonconsenting c
ompetent person).
The patient’s lack of consent could be a result of mental impair
ment or a comatose state. Important value questions face courts
grappling with making decisions regarding involuntary euthanas
ia, including:
• Who should decide to withhold or withdraw treatment?
• On what factors should the decision be based?
• Are there viable standards to guide the courts?
• Should criminal sanctions be imposed on a person assisting in
ending a life?
• When does death occur?
18.9 PHYSICIAN-ASSISTED SUICIDE
Derek Humphry’s popular book, Final Exit: The Practicalities of
Self-
Deliverance and Assisted Suicide for the Dying, hit the headline
s and the bestseller lists in 1992 with its startling subject matter
. There were calls for it to be banned, but this is not possible un
der the U.S. Constitution. Humphry founded the Hemlock Societ
y, which advocated the right to physician-
assisted dying for the terminally ill, mentally competent patient.

31. The mission of the society was to provide information to dying
patients and support legislation for physician-
assisted suicide. Following publication of his book, Humphry le
ft the society, which later merged with another group and today
is know as Compassion and Choices, the leading nonprofit orga
nization committed to helping everyone have the best death poss
ible.53
The issue of physician-
assisted suicide presents profound questions of medicine and me
dical ethics, theology and sociology, and numerous other far-
reaching public policy issues (Figure 18-
4). These are precisely the kinds of issues in which public input
is vital, and courts are simply not equipped to conduct the type
of comprehensive, broad-
based hearings at which witnesses and experts on all sides of th
e question would testify about the broader policy ramifications
of creating and regulating a right to assisted suicide.
The legislative and executive branches in our system are unique
ly well equipped to pursue these issues. Courts have before the
m only the legal arguments of lawyers, and although questions o
f law are certainly part of the equation, the core issues presente
d are fundamentally grounded in questions of policy and how w
e view ourselves as a society.54 It is well established that comp
etent terminally ill patients may refuse life-
sustaining treatment; physician-
assisted suicide, however, continues to raise much debate.
The competing concerns of privacy, morality, patient autonomy,
legislation, and states’ interests swirl around those involved in
the decision-
making process. States have been confronted with the question o
f whether it is ever right for a physician to provide a patient wit
h aid in dying. On July 26, 1991, a Monroe County, New York,
grand jury answered “yes” when it failed to indict Dr. Timothy
Quill for giving a leukemia patient a lethal dose of sedatives to
enable her to take her own life.55 Dr. Quill wrote an article in T
he New England Journal of Medicine focusing on the suffering

32. of terminally ill patients. He discussed how physicians could rel
ieve an individual’s suffering.
In a Florida case, the court ruled that a man dying of acquired i
mmunodeficiency syndrome (AIDS) had a right to physician-
assisted suicide under the privacy issues of the state’s constituti
on. The court emphasized that the patient had to administer the l
ethal dose of medication, which was prescribed by his physician
. Prosecutors were enjoined from bringing criminal charges agai
nst the physician. “The state has a clear interest in preserving li
fe, but not at the unbridled expense of individual autonomy in m
atters concerning a person’s medical treatment decisions,” wrot
e Circuit Judge S. Joseph Davis, Jr.56
© 18percentgrey/ShutterStock, Inc.
Figure 18-4 Physician assisted suicide.
Michigan and Assisted Suicide
Michigan’s Dr. Jack Kevorkian became a controversial figure w
hen he announced in October 1989 that he had developed a devi
ce that would end one’s life quickly, painlessly, and humanely.
The news of his invention was disconcerting because of fears th
at individuals would abuse the practice of euthanasia, which Ke
vorkian referred to as a medicide, despite any safeguards that ar
e in place.
Kevorkian assisted Janice Adkins, a 54-year-
old Alzheimer’s disease patient, in committing suicide on June
4, 1990. In December 1990, he was charged with first-
degree murder, but the charge was later dismissed because Mich
igan had no law against assisted suicide. He was ordered, howev
er, not to help anyone else commit suicide or to give advice abo
ut it. On February 6, 1991, he violated the court order by giving
advice about the preparation of a drug to a terminally ill cancer
patient.57 Additional murder charges were lodged against Kevo
rkian in October 1991, when he instructed two Michigan women
in the use of his “suicide machine.” In dismissing the charges a
gainst him on July 21, 1992, Oakland County Circuit Court Judg
e David Breck stated that some people with intractable pain can

33. not benefit from treatment. While emphasizing that Michigan ha
s no law against assisting suicide, the judge also expressed his b
elief that physician-
assisted suicide remains an alternative for patients experiencing
“unmanageable pain.”58
The Michigan House, however, approved legislation placing a te
mporary ban on assisted suicide on November 24, 1992. The Se
nate approved the temporary ban after Kevorkian assisted a sixt
h terminally ill patient to end her life. On December 15, 1992,
Michigan Governor John Engler signed the law just hours after t
wo more women committed suicide with Kevorkian’s aid. The n
ew law, which became effective on April 1, 1993, made assistin
g suicide a felony punishable by up to 4 years in prison and a $2
,000 fine. Under the new law, assisted suicide was banned for 1
5 months. During this period, a special commission studied assi
sted suicide and submitted its recommendations to the Michigan
legislature for review and action. The new law apparently raise
d constitutional questions and was challenged by the Civil Liber
ties Union of Michigan because of the claim that it fails to reco
gnize that the terminally ill have the right to end their lives pain
lessly and with dignity.
The Supreme Court of Michigan ruled on December 13, 1994, th
at assisted suicide is illegal in the state of Michigan. The ruling
overturned several lower court decisions. The court determined
that there is no constitutional right to aid in carrying out a suici
de in Michigan. Dr. Kevorkian, a physician, assisted terminally
ill patients in suicide outside the boundaries of the law.
Kevorkian faced prosecution for murdering two people and for a
ssisting in the suicides of three others. As a result, he appealed
a Michigan Supreme Court ruling that found there is no right to
assisted suicide.59 The U.S. Supreme Court rejected Kevorkian’
s argument that assisted suicide is a constitutional right. The hi
gh court’s decision allowed the state of Michigan to move forwa
rd and prosecute Kevorkian on the pending charges. At the time
of the high court’s ruling, Kevorkian had attended his 22nd suic
ide, involving a retired clergyman, less than a month after he wa

34. s left facing murder charges in Michigan.60 In 1998, Kevorkian
administered a lethal injection to Thomas Youk, a 52-year-
old man with Lou Gehrig’s disease, on national television. By
March 1998, Kevorkian had aided in or witnessed 100 suicides.
In the same year Michigan voters defeated a ballot measure that
would legalize physician-
assisted suicide. In 1999, he was convicted of second-
degree murder and was released on June 1, 2007, after serving 8
years of the 10- to 25-year sentence for physician-
assisted suicide.
Oregon’s Death with Dignity Act
Ironically, while Kevorkian was serving time in a Michigan pris
on for physician-
assisted suicide, Oregon passed the Death with Dignity Act on
October 27, 1997, allowing terminally ill Oregon residents to ob
tain prescriptions from their physicians for self-
administered, lethal doses of medications. The act legalizes phy
sician-
assisted suicide but specifically prohibits euthanasia, where a p
hysician or other person directly administers a medication to en
d another’s life. Physician-
assisted suicide, through referendum, became a legal medical op
tion within narrowly prescribed circumstances for terminally ill
Oregon residents. In 1998, Oregon voters reaffirmed their suppo
rt for the Death with Dignity Act by a 60% majority. The Death
with Dignity Act provides that the attending physician shall:
(1) Make the initial determination of whether a patient has a ter
minal disease, is capable, and has made the request voluntarily.
(2) Inform the patient of:
(a) His or her medical diagnosis;
(b) His or her prognosis;
(c) The potential risks associated with taking the medication to
be prescribed;
(d) The probable result of taking the medication to be prescribe
d; and
(e) The feasible alternatives, including, but not limited to, comf

35. ort care, hospice care, and pain control.
(3) Refer the patient to a consulting physician for medical confi
rmation of the diagnosis, and for a determination that the patien
t is capable and acting voluntarily.61
The request for medication is illustrated in Exhibit 18-1.
Exhibit 18-1 Oregon request form to end life.
Reproduced from Request for Medication to End My Life in a H
uman and Dignified Manner, http://public.health.oregon.gov/Pro
viderPartnerResources/EvaluationResearch/DeathwithDignityAc
t/Documents/pt-req.pdf. Accessed August 18, 2014.
The Oregon Death with Dignity Act62 allows physicians to pres
cribe but not administer lethal drugs to the requester, who must
be terminally ill with fewer than 6 months to live. The patient m
ust convince doctors that the decision is voluntary, sincere, and
not based on being depressed. The waiting period is 15 days. Th
e medication can only be given orally. Two physicians must exa
mine the patient to confirm the diagnosis and prognosis. The pat
ient must have made a witnessed request both orally and in writi
ng. All prescriptions must be reported to the state health depart
ment.
Prohibition of Assisted Suicide Ruled Constitutional
The U.S. Supreme Court, in June 1997, made two unanimous an
d separate decisions, ruling that the laws in Washington and Ne
w York prohibiting assisted suicide are constitutional. In the W
ashington case, Washington v. Glucksberg,63 the Supreme Cour
t applied the same “rationally related to the state’s interest in pr
eserving life” test (which includes preventing suicide and studyi
ng, identifying, and treating its causes; protecting vulnerable gr
oups; and preventing the state from allowing euthanasia). The C
ourt held that assisted suicide is not a liberty protected by the C
onstitution’s due process clause.
The U.S. Supreme Court, in Quill v. Vacco,64 found that neithe
r the assisted-
suicide ban nor the law permitting patients to refuse medical tre
atment treats anyone differently from anyone else or draws any

36. distinctions between persons. There is a distinction, however, b
etween letting a patient die and making one die. Most legislatur
es have allowed the former, but have prohibited the latter. The S
upreme Court disagreed with the respondents’ claim that the dis
tinction is arbitrary and irrational. In its decision, the Supreme
Court determined that New York had valid reasons for distingui
shing between refusing treatments and assisting suicide. Those r
easons included prohibiting intentional killing and preserving li
fe; preventing suicide; maintaining the physician’s role as his or
her patient’s healer; and protecting vulnerable people from indi
fference, prejudice, and psychological and financial pressure to
end their lives. All of those reasons, the Court decided, constitu
te valid and important public interests fulfilling the constitution
al requirement that a legislative classification bear a rational rel
ation to a legitimate end.
Assisted Suicide Law Ruled Constitutional
U.S. Attorney General John Ashcroft, in 2001, challenged Oreg
on’s Death with Dignity Act by claiming that physician-
assisted suicide was a violation of the federal Controlled Substa
nces Act because it served no “legitimate medical purpose.” In
State of Oregon v. Ashcroft, CV 01-
1647 (D. Oregon), the court allowed Oregon’s law to remain in
effect. In 2002, the U.S. District Court upheld Oregon’s Death
with Dignity Act and Attorney General John Ashcroft filed an a
ppeal, asking the Ninth U.S. Circuit Court of Appeals to lift the
district court’s ruling. On May 26, 2004, a three-
judge panel of the Ninth U.S. Circuit Court of Appeals voted tw
o to one to uphold the Oregon lawsuit initiated in 2002. This blo
cked the attempt by the U.S. Justice Department, under Attorney
General Ashcroft, to use the federal Controlled Substances Act
to prevent doctors in the state from prescribing drugs to assist t
he suicide of their patients. The Ashcroft directive interfered wi
th Oregon’s authority to regulate medical care within its borders
and therefore altered the usual constitutional balance between s
tate and the federal governments.65
The U.S. Supreme Court on January 17, 2006, in Gonzales v. Or

37. egon,66 ruled that the states could allow physicians to assist in t
he suicide of their terminally ill patients. In a 6-
3 vote, the court upheld Oregon’s physician-
assisted suicide law. Former Attorney General John Ashcroft wa
s found to have overstepped his authority in seeking to punish d
octors who prescribed drugs to help terminally ill patients end t
heir lives. The Supreme Court determined that the Oregon law s
upersedes federal authority to regulate physicians and that the B
ush administration improperly attempted to use the Controlled S
ubstances Act to prosecute Oregon physicians who assist in pati
ent suicides. The Supreme Court blocked the Bush administratio
n’s attempt to punish doctors who help terminally ill patients di
e, protecting Oregon’s one-of-a-kind assisted suicide law.67
States Permitting Assisted Suicide
At the time of this writing, Oregon, Washington, and Vermont h
ave legalized physician-
assisted suicide. Vermont became the third state to legalize phy
sician-
assisted suicide, when Governor Peter Shumlin signed into law
a bill allowing physicians to legally prescribe lethal doses of me
dication for terminally ill patients.68
The Montana Supreme Court ruled that state law protects physic
ians from prosecution for assisting terminally ill patients in com
mitting suicide. The court, however, did not address whether ass
isted suicide was guaranteed under the state’s constitution.69 M
ontana “HB 505 which would have explicitly prohibited doctor-
prescribed suicide was introduced by Rep. Krayton Kerns. The b
ill passed in the House and was sent to the Senate, where it faile
d on April 15, 2013 in a 27–23 vote.”70
Former Gov. Arnold Schwarzenegger of California signed into l
aw an assisted suicide information bill (AB 2747) that mandates
physicians, nurse practitioners, and physician assistants “provi
de patients diagnosed with a terminal illness—
or who have been given a diagnosis of one year or less to live—
with “comprehensive information and counseling regarding lega
l end-of-life options, as specified.”71 The physician-

38. assisted suicide debate and rulings from the various states conti
nue, as noted in a Massachusetts ballot question 2, “Death with
Dignity” initiative, where legalized physician-
assisted suicide was defeated by a narrow margin.72
18.10 ADVANCE DIRECTIVES
Advance directives for health care are instructions given by indi
viduals specifying what actions should be taken for their health
in the event that they are no longer able to make healthcare deci
sions as a result of illness or incapacity. Patients have a right to
make decisions about their health care with their physician. Th
ey may agree to a proposed treatment, choose among offered tre
atments, or say no to a treatment. Patients have this right even i
f they become incapacitated and are unable to make decisions re
garding their health care.
Because of the advances in modern medical technology, each pe
rson should give serious consideration as to their healthcare wis
hes, decide what they would want done should they become inca
pacitated, execute advance directives, and make their wishes kn
own so that family and healthcare providers can respect their de
cision.
Advance directives include, for example, a living will and/or du
rable power of attorney. They both provide that a person may st
ate in advance the kinds of medical care that he or she considers
acceptable or not acceptable. The patient can appoint an agent,
or a surrogate decision maker, to make those decisions on his or
her behalf. A patient should be asked at the time of admission i
f he or she has an advance directive. If a patient does not have a
n advance directive, the organization should provide the patient
with information about an advance directive and the opportunity
to execute one. A patient should clearly understand that an adv
ance directive is a guideline for caregivers describing his or her
wishes for medical care—
what he or she would and would not want—
in the event of incapacitation and inability to make decisions. T
his interaction should be documented in the patient’s medical re

39. cord. If the patient has an advance directive, a copy should be r
equested for insertion into the patient’s record. If the patient do
es not have a copy of the advance directive with him or her, the
substance thereof should be documented and flagged in the patie
nt’s medical record. Documentation should include the location
of the advance directive, the name and telephone number of the
designated healthcare agent, and any information that might be
helpful in the immediate care situation (e.g., patient’s desire for
food and hydration). The purpose of such documentation should
not be considered to be a need to recreate a new directive, but s
hould be considered a desire to adhere to a patient’s wishes in t
he event some untoward event occurs while waiting for a copy o
f the directive.
The patient can execute a new directive at any time if desired. P
atient and family education should be provided regarding the ex
istence of the directive and its contents. The patient should be p
eriodically queried about whether he or she wishes to make any
changes with regard to an advance directive.
Obligation to Make Preferences Known
Patients have an obligation to make medical preferences known
to the treating physician. Any glimmer of uncertainty as to a pat
ient’s desires in an emergency situation should be resolved in fa
vor of preserving life.
The patient in Matter of Hughes73 signed a standard hospital fo
rm entitled “Refusal to Permit Blood Transfusion.” There was n
o indication on the form that the consequences of her refusal ha
d been explained to her in the context of the elective surgical pr
ocedure she was about to undergo. The form should have contai
ned an unequivocal statement that under any and all circumstanc
es, blood is not to be used and an acknowledgment that the cons
equences of the refusal were fully explained. The form should h
ave fully released the physician, all medical personnel, and the
hospital from liability should complications have arisen from th
e failure to administer blood, thereby resolving any doubt as to t
he physician’s responsibility to his patient. If Hughes would ha
ve refused to sign such a form, her physician could then decide

40. whether to continue with Hughes’s treatment or aid her in findin
g a physician who would carry out her wishes.
The court emphasized that this case arose in the context of elect
ive surgery. This was not an emergency situation in which the p
hysician and patient did not have time to fully discuss the poten
tial risks, benefits, and alternatives of the planned surgery and t
he conflict arising over the patient’s religious beliefs. Patients h
ave an obligation to make medical preferences known to the trea
ting physician, including the course to follow if life-
threatening complications should arise. This protects the patient
’s right to freedom of religion and self-
determination. In addition, it is helpful to the hospital when fac
ed with the dilemma of trying to preserve life whenever possibl
e versus honoring the patient’s wishes to forgo life-
sustaining treatment.
Living Will
A living will is the instrument or legal document that describes
those treatments an individual wishes or does not wish to receiv
e should he or she become incapacitated and unable to communi
cate treatment decisions (see Figure 18-
5). The first living will legislation was enacted in California in
1976, permitting a person to sign a declaration stating that if the
re is no hope of recovery, no heroic measures need to be taken t
o prolong life. This provision is now available in every state. In
2010, legislation was introduced in California that would make
it the first state in the country to build a Living Donor Registry.
“Senate Bill 1395 by Sen. Elaine Alquist, D-
Santa Clara, would make it easier for people to decide whether t
hey want to donate their organs when they die, by requiring the
m to check a box when they get their driver’s license.”74
© Jim Barber/ShutterStock, Inc.
Figure 18-5 Living will.
Typically, a living will allows a person, when competent, to inf
orm caregivers in writing of his or her wishes with regard to wit
hholding and withdrawing life support treatment, including nutr

41. ition and hydration. The living will is helpful to healthcare prof
essionals because it provides guidance about a patient’s wishes
for treatment, provides legally valid instructions about treatmen
t, and protects the patient’s rights and the provider who honors t
hem.
The Supreme Court determined that Kentucky’s Living Will Dir
ective Act was constitutional in T. Bruce Simpson, Jr., v. Comm
onwealth of Kentucky and Cabinet for Human Resources.75 The
act allows a judicially appointed guardian or other designated s
urrogate to remove life support. After suffering cardiac arrest, it
was agreed the patient, Woods, would never regain consciousne
ss. After a recommendation of the hospital’s ethics committee,
Woods’ guardian asked for the removal of Woods’ life support.
If there is no legal guardian but the physicians, family, and ethi
cs committee all agree with the surrogate’s decision—
in this case, the state’s—
there is no need for judicial approval. The Supreme Court did d
etermine that when there is disagreement in a particular case, wi
thdrawal of life support would be prohibited absent clear and co
nvincing evidence that the patient is permanently unconscious o
r in a persistent vegetative state and that withdrawal of life supp
ort was in the patient’s best interest. In support of its holding, t
he Supreme Court cited the ethical standards of the National Ce
nter for State Courts, the Council on Ethical and Judicial Affair
s of the AMA, an Address to an International Congress of Anest
hesiologists by Pope Pius XII, and the Declaration on Euthanasi
a by Pope John Paul II:
In determining the patient’s best interests, courts may consider,
but are not limited to considering: (1) the patient’s present level
of physical, sensory, emotional, and cognitive functioning and
possibility of improvement thereof; (2) any relevant statements
or expressions made by the patient, when competent, as to his or
her own wishes with a rebuttable presumption attaching to a val
id living will or a designation of a health care surrogate; (3) to t
he extent known, the patient’s own philosophical, religious, and
moral views, life goals, values about the purpose of life and the

42. way it should be lived, and attitudes toward sickness, medical p
rocedures, suffering, and death; (4) the degree of physical pain
caused by the patient’s condition, treatment, and termination of
treatment; (5) the degree of humiliation, dependence, and loss o
f dignity probably resulting from the condition or treatment; (6)
the life expectancy and prognosis for recovery with and withou
t the treatment; (7) the various treatment options and their risks,
benefits, and side effects; whether any particular treatment wou
ld be proportionate or disproportionate in terms of the benefits
gained; and (8) the impact on the patient’s family (the assumpti
on being that the patient would be concerned about the well-
being and happiness of his or her own family members).
The living will should be signed and dated by two witnesses wh
o are not blood relatives or beneficiaries of property. A living w
ill should be discussed with the patient’s physician, and a signe
d copy should be placed in the patient’s medical record. A copy
should also be given to the individual designated to make decisi
ons in the event the patient is unable to do so. A person who exe
cutes a living will when healthy and mentally competent cannot
predict how he or she will feel at the time of a terminal illness;
therefore, it should be updated regularly so that it accurately ref
lects a patient’s wishes. The written instructions become effecti
ve when a patient is either in a terminal condition, permanently
unconscious, or suffering irreversible brain damage. An exampl
e of a living will is illustrated in Exhibit 18-2.
Dying Without a Living Will
In San Juan-
Torregosa v. Garcia,76 the evidence at trial established that Gar
cia suffered a cardiac arrest. Although she was later resuscitated
, she suffered oxygen deprivation to her brain for more than 10
minutes and was in a chronic vegetative state. There was no evi
dence that she would be able to recover “cortical functions.” Ga
rcia’s treating physician, Dr. Parrish, testified that Garcia was f
unctioning on a low brain level, whereby the brain stem kept he
r blood circulating, maintained blood pressure, and maintained r
espiration and that she was in a persistent vegetative state with

43. a zero chance of recovering any cortex activity. Dr. Parrish furt
her stated that he discussed the discontinuation of artificial nutr
ition and hydration with the family and that they had ultimately
decided to continue the fluids but stop the nutrition, which he fe
lt was reasonable.
Exhibit 18-2 My living will.
When asked why Garcia had been given life support in the first
place, Dr. Parrish explained that although Garcia’s injury initial
ly seemed very severe, he could not say from the beginning whe
ther she would recover and wanted to give her every chance to i
mprove if she could. The trial court ruled that because Garcia,
who was in a chronic vegetative state, had not executed a living
will, the court had no authority to authorize discontinuance of a
rtificial nutrition. On appeal, the appellants asserted that the tri
al court erred in refusing to allow Garcia’s family to terminate t
he artificial nutrition and hydration, thereby failing to honor her
wishes and denying her constitutional right to bodily integrity.
The Court of Appeals of Tennessee at Knoxville concurred with
the Trial Court’s fact finding that the evidence was clear and co
nvincing that Ms. Garcia would not want to be kept alive by arti
ficial means and that her wishes, expressed while she was comp
etent, would be to have these services discontinued. The appeals
court ruled that the courts have a duty to protect and when nece
ssary enable individuals to exercise his or her constitutional rig
hts. Since Ms. Garcia had no written preference, her husband w
ould be the first choice to act as her conservator and make medi
cal decisions for her. The judgment of the trial court was reman
ded for proceedings in accordance with this opinion.77
Living Will Declaration Upheld
The plaintiff-
sister (Oris Pettis) was not entitled to enjoin her brother and sist
er from implementing the living will in which their mother, Dor
is Smith, directed the withdrawal of life-
sustaining medical procedures in the event she should have a ter

44. minal and irreversible condition. Smith, at the age of 89, suffere
d a debilitating stroke in March 2004. Although she survived, sh
e no longer had any significant brain function. Dr. Maran exami
ned Ms. Smith and assessed her condition as being in a vegetati
ve state with no chance of improvement. After consideration of
their mother’s condition, Steve Smith and Dianne Braddock indi
cated that the hospital should stop providing nutrition to their m
other through the gastric feeding tube that had been inserted. Mr
. Smith and Mrs. Braddock informed Dr. El-
Malah, her treating physician, that their mother had executed liv
ing wills in March 2001. Drs. Maran and El-
Malah signed the form, attesting that the resident would die whe
ther or not life-
sustaining procedures were used and that the application of such
procedures would serve only to artificially prolong the dying pr
ocess. The patient’s declarations specifically prohibited her dau
ghters from making decisions about life-
sustaining procedures pursuant to La. R.S. 40:1299.58.1, et seq.
The second section, captioned “Declaration of living will for te
rminal illness pursuant to La. R.S. 40:1299.58.1,” declares:
I willfully and voluntarily make known my desire that my dying
shall not be artificially prolonged under the circumstances set f
orth below and do hereby declare:
If at any time I should be diagnosed as having incurable injury,
disease, or illness certified to be a terminal and irreversible con
dition by two physicians who have personally examined me, one
of whom shall be my attending physician, and the physicians ha
ve determined that my death will occur whether or not life-
sustaining procedures are utilized and where the application of l
ife-
sustaining procedures would serve only to prolong artificially th
e dying process; I direct that such procedures be withheld or wit
hdrawn and that I be permitted to die naturally with only the ad
ministration of medication or the performance of any medical pr
ocedure deemed necessary to provide me with comfort care.
In the absence of my ability to give directions regarding the use

45. of such life-
sustaining procedures, it is my intention that this declaration sh
all be honored by my family and physician(s) as the final expres
sion of my legal right to refuse medical or surgical treatment an
d accept the consequences of such refusal. I understand the full
import of this declaration and appointment of my attorney-in-
fact and I am emotionally and mentally competent to make this
declaration.78
Healthcare Proxy
A healthcare proxy is a legal document that allows a person to a
ppoint a healthcare agent to make treatment decisions in the eve
nt he or she becomes incapacitated and is unable to make decisi
ons for him or herself. The agent must be made aware of the pat
ient’s wishes regarding nutrition and hydration in order to be all
owed to make a decision concerning withholding or withdrawin
g them. In contrast to a living will, a healthcare proxy does not
require a person to know about and consider in advance all situa
tions and decisions that could arise. Rather, the appointed agent
would know about and interpret the expressed wishes of the pat
ient and then make decisions about the medical care and treatme
nt to be administered or refused.
Most states allow the document to be effective until revoked by
the individual. To revoke, the patient must sign and date a new
writing, personally destroy the first document, direct another to
destroy the first document in his or her presence, or orally state
to the physician one’s intent to revoke the healthcare proxy doc
ument. The effect of the directive varies among jurisdictions. H
owever, there is unanimity in the promulgation of regulations th
at specifically authorize healthcare personnel to honor the direct
ives without fear of incurring liability. The highest court of Ne
w York in In re Eichner79 complied with the request of a guardi
an to withdraw life support systems from an 83-year-old brain-
damaged priest. The court reached its result by finding the patie
nt’s previously expressed wishes to be determinative. Prior to e
xercising an incompetent patient’s right to forgo medical treatm
ent, the surrogate decision maker must satisfy the following con

46. ditions:
1. The surrogate must be satisfied that the patient executed a do
cument (e.g., durable power of attorney for health care and healt
hcare proxy) knowingly, willingly, and without undue influence,
and that the evidence of the patient’s oral declaration is reliabl
e.
2. The patient must not have reasonable probability of recoveri
ng competency so that the patient could exercise the right.
3. The surrogate must take care to ensure that any limitations o
r conditions expressed either orally or in written declarations ha
ve been considered carefully and satisfied.
Before declaring an individual incapacitated to make end-of-
life decisions, the attending physician must find, with a reasona
ble degree of medical certainty, that the patient lacks capacity.
A notation should be placed in the patient’s medical record desc
ribing the cause, nature, extent, and probable duration of incapa
city. Before withholding or withdrawing life-
sustaining treatment, a second physician must confirm the incap
acity determination and make an appropriate entry on the medic
al record before honoring any new decisions by a healthcare age
nt.
Durable Power of Attorney
A durable power of attorney is a legal device that permits one in
dividual, known as the principal, to give to another person, call
ed the attorney-in-
fact, the authority to act on his or her behalf. The attorney-in-
fact is authorized to handle banking and real estate affairs, incu
r expenses, pay bills, and handle a wide variety of legal affairs f
or a specified period. The power of attorney may continue indef
initely during the lifetime of the principal so long as that person
is competent and capable of granting power of attorney. If the p
rincipal becomes comatose or mentally incompetent, the power
of attorney automatically expires, just as it would if the princip
al dies. California passed the first durable power of attorney sta
tute in 1983, permitting an advance directive to be made describ
ing the kind of health care that one would desire when facing de

47. ath by designating an agent to act on the patient’s behalf.
Because a power of attorney is limited by the competency of the
principal, some states have authorized a special legal device for
the principal to express intent concerning the durability of the
power of attorney to allow it to survive disability or incompeten
cy. The durable power of attorney is more general in scope, and
the patient does not have to be in imminent danger of death, as i
s necessary in a living will situation. Although it need not delin
eate desired medical treatment specifically, it must indicate the
identity of the principal’s attorney-in-
fact and that the principal has communicated his or her healthca
re wishes to the attorney-in-
fact. Although the laws vary from state to state, all 50 states an
d the District of Columbia have durable power of attorney statut
es. This legal device is an important alternative to guardianship,
conservatorship, or trusteeship. Because a durable power of att
orney places a considerable amount of power in the hands of the
attorney-in-
fact, an attorney in the state where the client resides should dra
w up the power of attorney. In the healthcare setting, a durable
power of attorney for health care is a legal instrument that desig
nates and grants authority to an agent. An example of a durable
power of attorney is illustrated in Exhibit 18-3.
Surrogate Decision Making
A surrogate decision maker is an agent who acts on behalf of a
patient who lacks the capacity to participate in a particular deci
sion. A healthcare agent’s rights are no greater than those of a c
ompetent patient; however, the agent’s rights are limited to any
specific instructions included in the proxy document. An agent’
s decisions take priority over any other person except the patien
t. The agent has the right to consent or refuse to consent to any
service or treatment, routine or otherwise; to refuse life-
sustaining treatment; and to access all of the patient’s medical i
nformation to make informed decisions. The agent must make d
ecisions based on the patient’s moral and religious beliefs. If a
patient’s wishes are not known, decisions must be based on a go

48. od faith judgment of what the patient would have wanted.
Substituted judgment is a form of surrogate decision making wh
ere the surrogate attempts to establish what decision the patient
would have made if that patient were competent. This conclusio
n can be based on the patient’s preference expressed in previous
statements or the surrogate’s knowledge of the patient’s beliefs
(e.g., religious) and values.80 In 1976, the New Jersey Suprem
e Court, in the matter of Karen Ann Quinlan,81 rendered a unan
imous decision providing for the appointment of Joseph Quinlan
as personal guardian of his daughter.
Exhibit 18-3 Durable power of attorney for health care.
Guardianship
Guardianship is a legal mechanism by which the court declares
a person incompetent and appoints a guardian. The court transfe
rs the responsibility for managing financial affairs, living arran
gements, and medical care decisions to the guardian.
The right to refuse medical treatment on behalf of an incompete
nt person is not limited to legally appointed guardians, but may
be exercised by healthcare proxies or surrogates such as close fa
mily members or friends. When a patient has not expressed instr
uctions concerning his or her future health care in the event of l
ater incapacity, but has merely delegated full responsibility to a
proxy, designation of a proxy must have been made in writing.
When a person has been declared incompetent as a result of bein
g in a persistent vegetative state and has left no advance directi
ve, life-
sustaining decisions become more complex. Since 1990, Terri S
chiavo from Clearwater, Florida, had been in a persistent vegeta
tive state after a heart attack cut off the supply of oxygen to her
brain. Her husband Michael became her legal guardian and fou
ght to have her feeding tube removed, which was against her par
ents’ wishes. Michael argued that Terri had articulated her desir
e not to be kept alive by artificial means.
In an unprecedented move, on October 21, 2003, Governor Jeb