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DEATH & DYING: DECISION-MAKING.
Term Paper ID:25616
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Examines decision-making process for patients dying in hospitals & nursing homes. Mediation, ethics committees, cultural & legal issues, economics, assisted suicide, consent.... More...
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Paper Abstract:
Examines decision-making process for patients dying in hospitals & nursing homes. Mediation, ethics committees, cultural & legal issues, economics, assisted suicide, consent.
Paper Introduction:
DECISION-MAKING PROCESS FOR DEALING WITH DEATH AND DYING
This research paper discusses the decision-making process involved with patients who are dying in hospitals, nursing homes and other extended care facilities, including the role of institutional review boards or ethics committees and mediation techniques. Although it has its pitfalls, mediation offers a promising alternative to other methods of decision-making in many such cases, especially those in which the patient is incompetent to decide for himself what, if any, further treatment he wants. The cultural and legal framework in which such decisions are often made in the United States militate against prompt and humane outcomes, but nonetheless clarify some of the legal and moral principles involved.
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PX-91-283 (Minn. Congress in the 1974 Child Abuse Amendments to the Child Abuseand Treatment and Adoption Reform Act of 1974 provided that treatment ofdisabled children must be provided if failure would be medical neglect,thus shifting the burden of proof in such cases to the doctor and/orhospital involved. In Barber v. [35] Kadish, 882. The Court said at 73 that "physicians do not fulfill the roleof 'killer' by prescribing drugs to hasten death any more than they do bydisconnecting life-support systems" and at 731 that the state had nolegitimate interest in prohibiting "a physician from prescribingmedications to be self-administered by a mentally competent, terminally-illperson." In Compassion in Dying v. One reason the mediator may fail is theextraordinarily emotionally charged atmosphere attendant upon finaltreatment decisions. However, he shouldnot intentionally cause death."[25] Sec. Nothing in factwill happen unless they take the necessary actions, and time is notnecessarily working on the side of the family members. Code Ann., secs. [72] Maldonado, 133. [25] Quoted in Tarantino, 63 . sec. A 1989 poll in California showed that 7 percent ofthose polled favored legalizing assisted suicide and a June, 199 nationwide poll conducted by CBS News New York Times showed a positivemajority of 53 percent.[29] However, when specific ballot initiatives havebeen proposed to legalize assisted suicide, such as the 1992 CaliforniaDeath-with-Dignity initiative and the 1991 initiative 119 in Washington,they have failed by identical margins in the popular vote, 54 to 46percent.[3 ] However, in Oregon in 1994, Initiative No. Rev. Stat. [13] George J. Hoffman is not sanguine about the likely success of mediation in manycases although she thinks it will work well in resolving intra-familydisputes. Americans generally have little toleration for failure and,therefore, have more difficulty than many other peoples in coming to gripswith the reality of death. Kadish, Letting Patients Die: Legal and MoralReflections, 8 California L. Katz refused. Death' and his suicide machinein Michigan, which have led to unsuccessful attempts by that state toconvict him on murder or manslaughter charges. Case for Using Mediation. Public attitudes on thesubject have varied. 36-32 5 (1993).Md. [15] Jay Katz, The Silent World of Doctor and Patient, 219 (1984). Before one consider how toimprove the existing decision-making process, it is necessary to understandhow and why that process has evolved in the United States. At common law, a right of an individual to refuse medicaltreatment was recognized as an extension of the law of battery. [68] Kenneth Clark, Mediation-An Alternative to Litigation, 22 BeverlyHills Bar Association J. [37] Tarantino, 649. [5 ] MD. . medical policy."[21] The law has developed over the past twenty five years or so in adirection which has helped clarify the rights and responsibilities ofpatients, care givers and others in situations in which the dying patientis competent to make decisions but remains hopelessly muddled when he orshe is not. Kadish, Letting Patients Die: Legal and Moral Reflections,8 California L. The participants in the making of suchdecisions, care givers, relatives and other interested parties each bringto the situation at the bedside of the dying patients their own individualbiases and emotions as well as their degree of knowledge of the medicalissues involved, all of which are affected by their prior experience,education and cultural conditioning. . REGULATIONS45 C.F.R. 728 (1977), asserted that the state had a legitimate interest in thepreservation of human life and the regulation of the medical profession,issues it said the Court must decide. [32] Barber v. [49] Karen Teel, The Physician's Dilemma: A Doctor's View: What the LawShould Be, 27 Baylor L. Katz says that "Americanphysicians may fear death even more than their patients," which may leadthem to be less than candid with patients and relatives in disclosingmedical facts on the basis of which decisions have to be made at or justbefore the time of death.[15] Annas & Miller say that for many physicians,"illness is seen not as leading to inevitable death, but as a challenge tobe overcome."[16] Much of this has to do with their education and trainingin which aggressive approaches to treatment and the use of technology areemphasized. Thefirst step in the process is that the patient on admittance is advised ofthe availability of the mediation process and is asked to file any livingwill or other evidence of his wishes with respect to treatment. Plato, for example, has Socrates say thatthe true philosopher welcomes death. Superior Court, supra, the Court said at 1 17-1 18: "A physician has no duty to continue treatment, once it has proved tobe ineffective. Kadish says that "today, chronic regenerative diseases such ascancer, heart disease and cerebrovascular disease have become predominant,accounting for approximately seventy percent of all deaths in the UnitedStates."[6] These same medical advances, including organ transplants, organrepairs, organ substitution (respirators, ventilators and renal dialysismachines), drugs and breakthroughs in genetic and biotechnology, offer thepromise of significantly extended life spans. Saikewicz, 373Mass. [39] Urofsky, 1. Urofsky reported in 1994 that"the rate of discovery was not slowing down, and the half life of newtechniques and medicines might be no more than five or six years.People who would have died from injuries or diseases or just the ravages ofage can now be kept alive."[7] He says that "they are not functional orindependent, but life-support systems can keep their bodies going even ifthey are not conscious or have lost all mental powers. [16] Annas & Miller, 388. of Dispute Resolution 333-371 (Spring, 1994).Lee R. Rev. Stat. Catholic leadership sanctions the removal ofnutrition and hydration in such circumstances but that Church leadershiphas thus far been unwilling to go further than to permit the withdrawal oflife-support measures of a mechanical nature, such as ventilators andrespirators. What he meant that the soul can onlycome in touch with the ultimate meaning of existence after man has thrownoff his earthly coil and freed himself of the needs of the body and itsdistractions and becomes liberated from the limitations and distortionsimposed by his senses, appetites and emotions. 1993), careproviders must seek judicial relief or accept the patient's or thesurrogate's decision in such circumstances. [58] Sims-Taylor, 36 . Kennedy Hospital v. 1 (a). Director, Missouri Department of Health, 497 U.S. Society of New York Hospital, 211 N.Y. . Patient Autonomy, 14Whittier L. Health-Gen. Health-Gen. of LegalMedicine 139-151 (March, 1993).Thomas L. [69] Fentiman, 846. values known to be shared by thepatient, and their broad membership presents diverse views forconsideration."[58] Use of Mediation: Pros and Cons The term mediation comes from the Latin verb, mediare, meaning to bein the middle. [54] Sims-Taylor, 359. In the reverse situation,where family members object to the withdrawal of treatment on religiousgrounds, court decisions have varied. [24] Urofsky, 24. Rev. 132-133 (1993). andJapan, 2 American J. Mediators tend tothink of themselves as the most appropriate alternative dispute resolutionforum. Supreme Court, have gone a long waytoward sanctioning certain types of assisted suicide. Super. Her father, Joe, sued to force a suburban NewJersey hospital to take her off life support systems. Tarantino, Withdrawal of Life Support: Conflict Among PatientWishes, Family, Physicians, Courts, Statutes and the Law, 42 Buffalo L.Rev. over legal or ethicalissues may be the strongest reason for the application of mediation to lifeand death decisions."[7 ] In Hoffman's list of the optimum pre-conditions which must be presentfor a mediation to succeed, she mentions that all parties are represented.She comments that "there are reasons to be cautious . American Way of Death and Its Legal Framework General observations. Hafemeister says that "only twenty-five years ago, a decisionregarding life-sustaining medical treatment . . Urofsky says that"nearly all major hospitals now have ethics committees that pass on thevalidity of advance directives."[48] According to Hoffman, by 1985, over 6 percent of hospitals with over 2 beds and 1 percent of nursing homes,had such committees. . [11] Tom Stacy, Death, Privacy, and the Free Exercise of Religion, 77Cornell L. Informed Consent and the Right toDie Movement. [74] Robert Lowes, Can Malpractice Really Be Kept Out of Court?, 71Medical Economics 1 6 (October 24, 1994). Although it has its pitfalls,mediation offers a promising alternative to other methods of decision-making in many such cases, especially those in which the patient isincompetent to decide for himself what, if any, further treatment he wants.The cultural and legal framework in which such decisions are often made inthe United States militate against prompt and humane outcomes, butnonetheless clarify some of the legal and moral principles involved. [42] Urofsky, 136. None of the above cases deal with the situation of the incompetentdying patient nor do they apply if the doctor lethally injects the patientor administers drugs to him or her. Sims-Taylorsays "these decisions need to be made in an atmosphere of support andcompassion . . Possible Ways to Make Mediation More Effective. 1 (1976).In re Torres, 357 N.W.2d 332 (Minn. TABLE OF AUTHORITIES STATUTESAriz. As late as195 , more than half of all dying patients died at home in the presence ofintimates. . [28] Lee R. [14] Tarantino, 649. Christianity, which is still veryinfluential in Western, including American, thinking, stresses theimmortality of the soul and the necessity of pain and suffering as the lotof humans. . Rev. 8 1-848 (March, 1989).Dorothy Rasinksi Gregory, Options at the End of Life, 14 J. 2d 921 (Fla. NewEngland Sinai Hospital, Inc., 497 N.E.2d 626 (Mass. [65] Hoffman, 833. Rev.421 (December, 1988). Abram, Physician-Assisted Suicide With HumanImmunodeficiency Virus Disease, 338 New England J. In the most recentcase, involving an AIDs patient,Charles Hall, in Florida, a Florida circuit court ruled on January 31, 1997that "Hall has a constitutional right to choose his time to die, and barredthe state from prosecuting the physician who has volunteered to helphim."[31] The case is pending review by the Florida Supreme Court. Sims-Taylor, nevertheless, concludes that "ethics committees asdecision making bodies may some advantages over both family and the courts.They are better able to interpret medical facts and opinions, can includecommunity members to represent . 125 (1924), thenJudge Benjamin Cardozo said at 129: "every human being of adult years andsound mind has a right to determine what shall be done with his own body."The doctrine of informed consent developed. Its imminence can causeangst and confusion for the dying patient and his relatives, especially ifhe and they have not measured up to this cultural norm and the survivorsare faced with the prospect of becoming impoverished in order to keep thepatient alive. 36-32 5 (1993) and Md. [2] Lynda M. .. Only one prosecution has been attempted in recent years for assistedsuicide of an adult, a case which involved an attempt by physicians tocover up previous malpractice, but the indictment was eventuallydismissed.[32] Despite the generally benign treatment accorded by thecourts to physicians suspected of having committed assisted suicide, thefear of criminal and civil liability has lain behind the tendency of somedoctors and other health care providers to refer cases to the courts inwhich disputes over treatment to dying patients arise. A socialworker-ethics counselor is assigned to his case and informally mediates,sometimes in or outside the patient's room, disputes concerning treatmentas they arise. 2984 (McKinney & Supp. Tarantino saysthat many courts "assume a patient wants life support unless the family canprove otherwise at the highest level of proof."[37] The result is that"thousands of incompetent unconscious patients [are] sustained, perhapsagainst their own will, causing needless family anxiety, clogging of thecourts, uncomfortable legal delays, and the wasting of finite healthdollars."[38] An example is the case of Rocco Musolino in Maryland in 199 .His wife asked Dr. Katz to put a 'Do Not Resuscitate' order on his medicalsheet pursuant to a provision in Rocco's will which gave her power ofattorney. Mitchell, Edwin Charlebois, Jeffrey M.Benevedes & Donald I. Another majorgroup affected is newborn infants. doctors can say what will probablyhappen, but they cannot say absolutely what will happen."[72] Hoffman saysthat "physicians may appear insensitive to quality of life issues whentheir focus is on the immediate medical decision to be made."[73] Mediatorsface challenges in translating medical concepts and jargon into plainlanguage that all parties to the mediation understand and in overcoming thereluctance of some doctors, who are used to being in an authoritarian,paternalistic relationship with their patients, to engage in the kind of'no holds barred' give and take which characterizes successful mediations.The problem, in short, is that physicians tend to be control freaks who maydevelop antagonism to a process in which they are forced to defend theirpoint of view in an atmosphere of equality. Saikewicz, 373 Mass.728 (1977). How can thecurrent decision-making process be improved? Health-Gen. . 134 (199 ). Director, Missouri Department of Health, 497 U.S. State of Washington, 79 F.3d 79 (9th Cir. Because of the natureof decisions relating dying patients, time pressures for a promptresolution are often acute. it is theprocess of discussion among the family and doctors, of taking time formutual and caring interaction, that will lead to a better, more humanedecision being made, as well as greater acceptance and peace of mind amongthe principals."[67] Clarke says based on his long experience with theSanta Monica mediation organization which he heads, that mediation has thesingular advantage of permitting "extra-legal concerns, ethics, emotionsand personal concerns to be surfaced and addressed."[68] Mediation is a participative process, in which the parties have anopportunity to shape the ultimate resolution of the dispute and, since theyparticipate, to gain a feeling of ownership in the outcome, which is likelyto result in a more stable and permanent solution. Other courts, such as those in NewJersey, have tended to respect the wishes of properly designated familysurrogates even if they conflict with medical opinion. [38] Tarantino, 648. In reConroy, 486 A.2d 1236 (1985), the New Jersey Supreme Court refused torecognize such a distinction, saying that "artificial feeding . of Contemporary Heath Law & Policy 1-99 (Fall,1995).Tom Stacy, Privacy, and The Free Exercise of Religion, 77 Cornell L. Deathchallenges basic assumptions of American society. They often are unwilling in mediations orotherwise to give equal weight to what the family members may have to say. Itslimitations can be worked around in a number of ways. 1993).Oregon Death With Dignity Act of 1995.Uniform Rights of Terminally Ill Act. The courts generally take into accountthe findings and recommendations of child protection agencies in suchcases. New England Sinai Hospital, Inc., 497 N.E.2d 626 (Mass. Health Law, sec. 1 8 (Spring, 1988). Urofsky, Letting Go: Death, Dying and the Law (1994).----------------------- [1] Thomas L. 71 MedicalEconomics 1 6-121 (October 24, 1994).Larry Maldonado, Bioethics and the Law: The Case of Helga Wanglie: AClash At the Bedside-Medically Futile Treatment v. Some of the Easternreligions such as Hinduism stress the transient nature of temporal life andview death as part of a natural process. canbe seen as equivalent to artificial breathing by means of a respirator.Both prolong life through mechanical means." Supreme Court Justice SandraDay O'Connor expressed similar sentiments in her concurring opinion in theCruzan case discussed below. [51] Hoffman, 842. Hoffman, Mediating Life and Death Decisions, 36 Arizona L. Health Law, sec. For this reason,Hoffman suggests that the mediator must be careful not to exaggerate hisown authority or to undermine that of the hospital ethics committee.[75]After all, broader societal concerns, in addition to the selfish orprofessional interests of the parties concerned and even the welfare of thedying patient are involved in these decisions, which the mediator mustnever forget. 2972 (McKinney 1993), healthcare providers are required to establish a dispute mediation system througha newly constituted body or through an existing hospital committee. The current rules ofHHS, 45 C.F.R., sec. [23] Urofsky, 15. Tarantino, Withdrawal of Life Support: Conflict AmongPatient Wishes, Family Physicians, Courts, Statutes and the Law, Buffalo L.Rev. Ross et al., Handbook for Hospital Ethics Committees 26(1986). Rptr. As scientist Ramo describedthe overall problem in 1983, "science and technology have priced medicalservices out of the market and the hospitals are too expensive for thepatients that fill them."[19] The financial stresses imposed by a two-tiermedical system, which is uniquely skewed in the United States, as comparedwith other developed nations, in favor of those who can afford its costsand against everyone else, complicates decisions concerning the treatmentof dying patients, especially those whose care will involve extraordinaryexpense over a prolonged period of time. [6 ] Sims-Taylor, 352. Health Law, sec. 1984).Quill v. Hafemeister, Guidelines for State Court Decision Making in Life-Sustaining Medical Treatment Cases, 7 Issues in Law & Medicine 443-475(Spring, 1992).Diane E. The New JerseySupreme Court reversed on the grounds that a person who was found bycompetent medical authority to be in a persistent or chronic vegetativestate, despite some low level brain activity, was legally dead. Tarantino says that"terminally ill patients account for a disproportionately high percentageof medical costs, including 3 percent of the Medicare budget in 1993,which was spent on the final year of beneficiaries' lives."[2 ] Accordingto Annas & Miller, "end-of-life care will come under increasing scrutiny asexpanded health insurance coverage makes cost control an even more dominantconcern of U.S. Fentiman, Privacy and Personhood Revisited: A NewFramework for Substitute Decisionmaking for the Incompetent, Incurably IllAdult, 57 George Washington L. Dist. . 297 (McKinney 1993).N.Y. Asecond doctor finally agreed to cut off his dialysis and Rocco died twomonths after the dispute erupted.[39] Urofsky's comment is that in somesituations, "instead of death coming peacefully and with dignity, there isconflict and suffering, rage and public controversy."[4 ] Smith cites a disturbing "five year study of more than 9, acutelyill patients in hospitals with an average life expectancy of six months . . .typically including physicians, nurses, social workers, clergy, and in somecases, ethicists, lawyers and community representatives."[52] In the handbook Ross et al. [31] Mike Clary, A Struggle to End the Suffering, Los Angeles Times,February 17, 1997, at E 1 and E 6. in hospitals throughout the country,"many of whom had not in advance made their wishes clear and many others ofwhom are either in a persistent vegetative state (PVS), brain dead orsuffering from terminal illnesses which impaired their cognitiveabilities.[11] When the views of doctors and family surrogates clash,Maldonado says "it is often difficult . [41] Smith, 39. Hoffman says that "the fact that disputes regardingtermination of life support are not simply . [73] Hoffman, 833. 227, 7 N.J. State of Washington, 79 F.3d 79 (9thCir. [61] Sims-Taylor, 356. 2841 (199 ), the Supreme Court by a 5-4 vote decided, per theopinion of Chief Justice William Rehnquist for the majority at 2851, that"the principle that a competent person has a constitutionally protectedliberty interest [under the Fifth and Fourteenth Amendments, but not aconstitutionally protected right of privacy, as Justice Richard Hughes ofthe New Jersey Supreme Court suggested in the Quinlan case supra] inrefusing unwanted medical treatment may be inferred from our priordecisions." However, the Court upheld the legitimacy of a Missouri statutewhich required that the wishes of the dying patient be proven by clear andconvincing evidence and reversed the lower court, thus delaying a finaldecision which eventually let Nancy Cruzan, a 25 year old who lapsed intoPVS after driving her car off an icy road, die. PX-91-283 (Minn. In three recent precedent-shattering cases, court decisions, some ofwhich are expected to reach the U.S. Code Ann., secs. [17] Nancy K. [18] Dorothy Rasinski Gregory, Options at the End of Life, 14 J. 1986).Brown v. 61 (1986). [It] creates winners andlosers, but there are no winners when a family faces losing a dying lovedone."[62] Rhoden argues that courts tend to be too deferential to thewishes of medical professionals, who may have their own agenda andinterests at heart, instead of those of the dying patient and hisfamily.[63] Fentiman says that "the courts are simply not the place forresolution of these most intimate and personal issues."[64] Ethics committees, too, can operate in a highly impersonal andsterile atmosphere in which patients and/or their families or othersurrogates, Hoffman says, "feel powerless and ill at ease."[65] Mediationaffords the opportunity for more private airing of grievances, which isless feasible in a meeting before a large ethics committee. [8] Id. American civilization tends to emphasize the material aspects of lifeand to place considerable emphasis on the acquisition of wealth. [22] Urofsky, 16. 1993).N.Y. ofLegal Medicine 149 (March, 1993). Patient Autonomy, 14Whittier L. of Medicine 417-421(February 6, 1997).George P.Smith, II, Utility and the Principle of Medical Futility:Safeguarding Autonomy and the Prohibition Against Cruel and UnusualPunishment, 14 J. The first case in which a court considered the recommendations of anethics committee was In re Torres, 357 N.W. Urofsky, Letting Go: Death: Dying and the Law, xiv(1994). of Medicine 418(February 6, 1997). . According to Urofsky, "seriouslydeformed infants who normally would have died within hours or days of birthcan now be 'saved,' kept alive, although little can be done to repair theirphysical defects or remedy their mental retardation."[9] Growing Complexity of the Decision-Making Process The growing sentiment in favor of the use of techniques of mediationduring the 198 s and since as an adjunct and aid to the making of decisionsconcerning the provision, withholding or withdrawal of medical treatmentfor dying patients arose out of concerns regarding the complexity, efficacyand humaneness of the decision-making process which has evolved forhandling such situations since the mid-197 s. [26] Urofsky, 136. The mediation profession itself may have an axe to grind. Another area of controversy is the degree to which the courts shouldimpose their own views of public policy. Conclusion Mediation of disputes relating to the treatment or non-treatment ofdying patients, especially those unable because of their medical conditionto make such decisions for themselves, is a viable alternative in somecases and supplement in others to the existing decision-making process. See In re Storar, 52N.Y.2d 363 (1989) and John F. Some courts, such as in California, have been willing to defer tomedical opinion. Rev. 357-447(December, 1988).Judith W. Superior Court, 147 Cal.App.3d 1 6, 195 Cal. 1 8-117 (Spring, 1988).Mike Clary, A Struggle to End the Suffering, Los Angeles Times,February 17, 1996, E 1 and E 6.Linda N. Society of New York Hospital, 211 N.Y. 16 was approved andbecame the Oregon Death with Dignity Act of 1995, which has been stayed,pending court action on legal objections which have been filed against itsimplementation. Urofsky says that "no American state currently makes suicide acrime, but there are a host of laws, involving both civil liability andcriminal penalty that may apply to a person assisting in suicide."[22] Adistinction is usually made between active euthanasia, intentionallykilling or rendering aid to the person contemplating suicide, and passiveeuthanasia or more indirect methods, "the withdrawal of 'heroic' or othermeasures that keep a moribund person alive."[23] The distinction betweenactive and passive euthanasia is not always an easy one to make. Health-Gen.Code Ann., sec. The Debate Over Assisted Suicide. The tendency toward denial is evidenced by the small percentageof Americans (25 percent) who have written wills.[14] American denial ofdeath is seen in many ways, for example, in the modern conversion ofcemeteries into memorial parks with multi-colored fountains and tinymarkers on graves, almost as if we wish not to be reminded of death. 1991), the expensesto keep alive an 86 year old patient with severe brain damage wereestimated to be approximately $45, a month. 1991).John F. In Brophy v. . Rev. 6 (1975). [2 ] Tarantino, 648; Annas & Miller, 367. Mediationwas at one time largely limited to labor disputes and family law disputes,but has recently spread into a variety of other fields. In the statement of the American Medical Association's Council onEthical and Judicial Affairs, dated March 15, 1986, the AMA said: "Forhumane reasons, with informed consent, a physician may do what is medicallynecessary to alleviate severe pain, or cease or omit treatment to permit aterminally ill patient whose death is imminent to die. In disputes between relatives or between them andother legally-appointed guardians, case outcomes have varied considerably. 2984 (McKinney 199 & Supp. Pub. [46] Diane E. Health Law, sec. [71] Hoffman, 871. [67] Fentiman, 843. Then Dr. Katz asked the hospital to reopen the case. Ct., Probate Div. CASESBarber v. [1 ] Urofsky, 9. It is lengthy, adversarial andexpensive."[61] She adds that "adversarial adjudication generateshostility, inaccuracy, and emotional devastation. [5] George P. The first case to achieve nation-widenotoriety was In re Karen Quinlan, 137 N.J. In Cruzan v. Annas & Frances H. 61 (1986).Compassion in Dying v. 5-612(a).Md. . to determine a loved one'swishes," and in some cases, "it is very difficult for the surrogate not toact on their own behalf," whether due to confusion or disagreement over theprognoses of doctors, personal animus or financial considerations.[12] How are decisions currently made in such situations concerning what,if any, further treatment should be provided to the patient? 261, 11 S.Ct. 1986), the Courtpermitted the doctor and the hospital to refuse, but only if transfer ofthe patient to another medical facility was feasible. of Law & Medicine 357-394 (Winter, 1994).Kenneth Clark, Mediation-An Alternative to Civil Litigation, 22 BeverlyHills L. "For consent to be informed, itmust be voluntarily given by a competent person who understands what isproposed" --i.e he or she "has the ability to appreciate the nature, extentor probable consequences of the physician's conduct for which consent isgiven," Restatement (Second) of Torts, sec. . [53] Judith W. Rev. 822 (Winter, 1994). "During the mediation process, Do NotResuscitate orders are revoked and cannot be issued unless the dispute hasbeen resolved or seventy-two hours have passed without resolution. . 892A and comment b (1977).[33]In determining whether informed consent has been given, a split inauthority developed between some jurisdictions which held that it could beinformed where the doctor proceeded in accordance with customaryprofessional practice and others which insisted that a reasonable laypersonwould have to have understood the risks of the course of medical treatmentbeing proposed. Ct., Probate Div. They were first recommended to the Quinlan Court as a result of anarticle by a physician which appeared in a law review.[49] One state,Maryland, requires that "patient care advisory committees" beestablished.[5 ] In another, New York, they are always used. Urofsky says that "at the endof the twentieth century before one can leave this world, he or she mayfind it necessary to traverse a bewildering legal, moral, and medicalmaze."[1 ] What was once a decision, however painful and difficult, made bya few people, the patient, his or her physician and close family members,became a subject of national controversy. A common source of misunderstandings is the way in which doctorsexplain the alternatives. 19-37 -19.374 (199 & Supp. [52] Hoffman, 823. Pub. Mitchell, Edwin Charlebois, Jeffrey M.Benevedes & Donald I. Smith, II, Utility and the Principle of Medical Futility:Safeguarding Autonomy and the Prohibition Against Cruel and UnusualPunishment, 14 J. Moreover, by the time the mediator enters upon thescene, the family members or their surrogates and the physician involvedmay have already had serious disagreements. Miller, The Empire of Death: HowCulture and Economics Affect Informed Consent in the U.S., the U.K., andJapan, 2 American J. Hoffman defines it as "a process whereby a neutral thirdparty assists disputing parties reach a mutually acceptable agreement."[59]In contrast to adjudication as a result of litigation or the award of anarbitrator, the mediator has the power to facilitate and to recommendsolutions to the parties, but lacks adjudicatory power. [44] Ariz. He was ultimately determined to be non-compos mentis. 261,11 S. 134 (199 ), ban federally-funded health institutionsfrom withholding treatment unless the infant is: (1) chronically orirretrievably comatose; (2) the treatment would merely prolong dying; and(3) further treatment would be futile in terms of enhancing the chances ofsurvival or is otherwise inhumane. Charged with the duty inequity of protecting the best interests of the incompetent patient, they"have found that judging whether a patient's future life is not worthliving is a troubling decision for anyone to make."[35] They have tended tobase their decisions on the presumed consent of the patient, rather than onmore controversial quality of life grounds. There is an on-going debate among professional mediators as towhether lawyers make good mediators. Vacco, 8 F.3d 716 (2d Cir. Ct. [6] Sanford H. The trial court saidthat since she was not brain-dead because some minimal EEG detected brainactivity was present, her respirator could not be removed. Pub. 5-612(a). [36] Rhoden, 377. of Contemporary Health Law and Policy 3 (Fall, 1995). Fentiman says that "as aresult of a shared decision-making process, individual participants areable to view each other not as adversaries, but as partners in reaching theresolution of a difficult problem."[69] The issues are not purely legal or even ethical, but may involveprivate family concerns, prior discussions with the dying patient and otherintimate matters. The Reagan administration's Department of Health andHuman Services (HHS) issued regulations threatening such hospitals with acut-off in federal funds which the Supreme Court voided in Brown v.American Hospital Associates, 476 U.S. [12] Larry Maldonado, Bioethics and the Law: The Case of Helga Wanglie:A Clash At the Bedside-Medically Futile Treatment v. A lack of uniformity in court decisions and state statutes wasperhaps inevitable in a country as diverse as the United States: however,the resulting uncertainties have resulted in an estimated 7, court casesinvolving dying related treatment decisions, 8 of which have reachedappellate levels.[46] Given such a confusing set of legal guidelines, Urofsky says that"doctors, hospital administrators, state health officials, and even somelower court judges are extremely wary of proceeding without great caution,to the point of near-paralysis in some instances."[47] Rise of Ethics Committees Institutional review committees have been established by most careproviders as a result of increased government regulation, to limit legalliabilities, to deal with community concerns and for other reasons toprovide oversight regarding risky and otherwise controversial medicaltreatment decisions. [66] Sims-Taylor, 355. [47] Urofsky, 132. Rev. 857-888 (July, 1992).Jay Katz, The Silent World of Doctor and Patient (1984).Robert Lowes, Can Malpractice Really Be Kept Out of Court? 227, 7 N.J. Doctors, as well as patients and relatives, bring to the dyingprocess, reservations and complex attitudes. medicines and technology, are used to keep sick patients alive. The mediator's job,after affording everyone their say, is to separate out the factual orlogical from the emotional issues. [59] Hoffman, 848. Kennedy Memorial Hospital v. The sticking point often is the reality that the hospital and thedoctors really do have more than equal bargaining power. [51] Their usehas been endorsed by the President's Commission For the Study of EthicalProblems in Medicare and Biomedical and Behavioral Research, Deciding toForego Life Sustaining Treatment (1983), the AMA Council of Ethical andJudicial Affair's Guidelines for Ethics Committees in Health CareInstitutions (1985) and in the American Hospital Association's Guidelines:Hospital Committee on Biomedical Ethics (1984). Fentiman, Privacy and Personhood Revisited: A New Framework forSubstitute Decisionmaking for the Incompetent, Incurably Ill Adult, 57George Washington L. Rev.491-592 (March, 1992).Lynda M. . [63] Rhoden, 379. Maldonado says that "physicians are frequentlyunclear about the patient's prognosis. Various exceptions were grafted onto the informed consentdoctrine, including situations involving emergency care, the so-calledtherapeutic privilege and other situations in which the patient was deemedto have waived his right to withhold his consent. Super. [29] Kadish, 859. Vacco, 8 F.3d 716 (2d Cir.1996).Schloendorf v. [64] Fentiman, 848. 2841 (199 ).In re Conroy, 486 A.2d 1236 (1985).In re Karen Quinlan, 137 N.J. Dist. [43] Rhoden, 419. of Law & Medicine, 392-393 (Winter, 1994). [56] Sims-Taylor, 36 . Rhoden criticizes theCruzan and similar state court decisions because in her view, "courts havearticulated tests for termination of treatment that seek a higher level ofcertainty than is possible."[43] Another area of contention is where the doctor or the health carefacility refuses to accede to patient wishes to withdraw life-supporttreatment on grounds of conscience or religious belief. Americans spend much more per capita than any othernation on health care, yet many Americans cannot afford to carry healthinsurance or, if they have insurance, its coverage for expensive medicalprocedures or extended care may be inadequate. 1996), the Second Circuit Court of Appealsreversed a District Court decision and struck down as unconstitutional theNew York assisted suicide law which it held violated the Equal Protectionclause of the 14th Amendment because it discriminated against terminallypatients who wished to be provided lethal drugs by their physicians whileNew York law allowed such patients to elect to have life-support equipmentwithdrawn. Rhoden comments that, because of their training andprofessional orientation, many doctors believe that "it is always better toover-diagnose and over-treat than to fail to intervene" and that they oftenhave excessive faith in the powers of medical treatment."[17] Gregory saysthat "there also have been complaints that physicians seem to lose interestin their patients when [they] are no longer 'curable,' and focus little, ifat all, on the caring aspects of medicine . 1984).In re Storar, 52 N.Y.2d 363 (1989).In re Wanglie, No. [19] Simon Ramo, What's Wrong With Our Technological Society, 51(1983). 624 (Spring, 1994). The arguments in favor of using mediationstem in large part from the deficiencies of alternative decision-makingmechanisms. In Quillv. The Court held at 793 that"there is a constitutionally protected liberty interest in determining thetime and manner of one's death," which it found in the Due Process Clauseof the 14th Amendment. Often, lawyers who are conversant with medico-legal matters are either trained litigators, mostly in the medicalmalpractice area where they tend to develop antipathy toward theirphysician and hospital opponents, or they are used to serving as experts insuch cases where they tend to spout their views as gospel truth.Some lawyers are very adept at negotiations, and in general such lawyersare more likely to have had experience in large institutions, such as, forexample, a large managed care organization like Kaiser Permanente, fromwhich they may have retired. Rev. 491 (March, 1992). Hoffman, Mediating Life and Death Decisions, 36 ArizonaL. [7] Melvin T. [45] Barry Seigel, A Debate Over Life and Death, Los Angeles Times,February 1 , 1997, at A 1 and A 16. Miller, The Empire of Death: How Cultureand Economics Affect Informed Consent in the U.S., the U.K. Rhoden, Litigating Life and Death, 1 2 Harvard L. Pro-life forces have succeeded in a number of states in voidingliving wills or advance directives if the patient is pregnant. The Massachusetts Supreme JudicialCourt in Superintendent of Belcherton State Hospital v. patients feel they are leftto fall between the cracks."[18] Economic factors also complicate decisions relating to the treatmentof dying patients. [48] Urofsky, 135. [57] id. Most of the cases which have arisen in recent decades over the scopeof the informed consent doctrine and the right to refuse treatment, inmodern parlance the right to die, have involved situations in which thewishes of the patient could not be readily inferred because of his or hercondition at the time the provision, withholding or withdrawal of life-sustaining condition became an issue. 1984). Even if their brainscease to function, the machines keep them breathing and their heartspumping blood to inert limbs."[8] While most cases relate to the treatment of the dying aged, all agegroups can be affected since death can strike at any time. Ann., sec. 19-37 -19.374 (199 & Supp.1993). Rev. 8 1 (March, 1989). 2d 332 (Minn. 125 (1924).Superintendent of Belcherton State Hospital v. Code Ann., sec. A hospital ethics committee recommended that Roccobe examined by a psychiatrist. The spectre was raised in the media "of a life inlimbo," "high-tech" death in derogation of the actual or presumed wishes ofthe dying patient.[34] In actuality, the courts have leaned over far in the direction ofpermitting life support to be withheld or withdrawn in cases in which thepatient is obviously beyond hope of survival in the sense that his or hercognitive capacities have been irretrievably lost. 892A and comment b).Nancy K. Sloane, Thomas F. 1 (1976).Karen Ann Quinlan was a 21 year old female who ingested drugs which causedanoxia, the deprivation of oxygen to the brain and who lapsed into anapparently irremediable coma. In one reported case, In reWanglie, No. DECISION-MAKING PROCESS FOR DEALING WITH DEATH AND DYING This research paper discusses the decision-making process involvedwith patients who are dying in hospitals, nursing homes and other extendedcare facilities, including the role of institutional review boards orethics committees and mediation techniques. Rev. 6 (1975).Melvin T. Rhoden says that "the courts,in their eagerness to couch nontreatment devices for incompetents withinthe familiar framework of patients' rights to refuse treatment, havestretched the concept of an incompetent's right to choose past its breakingpoint."[36] In a number of areas, when the dying patient's wishes are unclear anddisputes arise, courts have differed in their approach as to how, by whomand what basis medical treatment decisions should be made. Hafemeister, Guidelines for State Court Decision Makingin Life-Sustaining Medical Treatment Cases, 7 Issues in Law & Medicine 443(Spring, 1992). In balancing the interest of the state in preservinghuman life against the "desire to die peacefully and with dignity," theCourt came down in favor of the latter. Although there may be a duty to provide life-sustainingmachinery in the immediate aftermath of a cardio-respiratory arrest, thereis no duty to continue its use once it has become futile in the opinion ofqualified medical personnel." Other courts, sometimes interpreting statuteswhich are riddled with ambiguous language and exceptions, have beenreluctant to authorize the withdrawal of treatment when what is involved isthe withdrawal of food and water, as opposed to mechanical means. prepared in 1986, she says that "ethicscommittees should exist primarily to serve patients and to protect theirinterests."[53] However, that is only one, and not necessarily the primaryfunction of many ethics committees, which, while serving as a safety valvefor hearing the concerns of family members and others, and providing thememotional support, tend to be fairly closely aligned with, and protectiveof, the interests of the care givers. The mediation process can be informal or more formal.In New York under N.Y. At common law, suicide was afelony. Abram, Physician-Assisted Suicide With HumanImmunodeficiency Virus Disease, 338 New England J. Rev.821-877 (Winter, 1994).Sanford H. Overview Death, the ultimate bane of all existence, and the process of dyinginvolve great anguish and sometimes present excruciating dilemmas for thoseinvolved, first and foremost the patient, who may or may not be aware ofwhat is transpiring, and for others closely involved, including relatives,friends, physicians, nurses and other care givers and the healthinstitutions where the dying process occurs, hospital administrators,special review boards, social workers, bioethicists, representatives of thecommunity, public officials, lawyers and sometimes the courts. [21] Annas & Miller, 367. 624-652 (Spring, 1994).Karen Teel, The Physician's Dilemma: A Doctor's View: What the LawShould Be 27 Baylor L. . Bludworth, 452So. Many physicians have hadunhappy experiences with alternative dispute resolution arbitrations ofmedical malpractice case which have "on the whole disappointed patients anddoctors alike."[74] Because of that experience, they may be reluctant toengage in the mediation process that, while different, may appear similar. If she is unsuccessful in resolving them, then the matter isturned over to a formal mediator. [62] Sims-Taylor, 364. 1996), the 9th Circuit Court of Appeals upheld a lower court decisionstriking down a similar Washington statute. Americans have a somewhat unique configuration of contradictory andambivalent attitudes toward death and the process of dying. Thissparked a national debate over the meaning of death itself in the age ofmodern technology. 1 (a) of the Uniform Rights of theTerminally Ill Act says that death resulting from the withholding orwithdrawal of life-sustaining equipment to a patient "with an incurable andirreversible condition that, without the administration of life-sustainingtreatment will, in the opinion of the attending physician, result in deathwithin a relatively short time," is neither homicide nor suicide.[26]Urofsky says that "the fact of the matter is that doctors assist theirpatients to commit suicide every day of the year. . Ross et al., Handbook for Hospital Ethics Committees (1986).Barry Seigel, A Debate Over Life and Death, Los Angeles Times,February 1 , 1997, A 1 and A 16.Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: AProposal to Use ADR to Resolve Medical Treatment Decisions, 9 Ohio StateJ. The same concerns, heightened by the urgency ofdecisions relating to cases involving dying patients, have been institutedusually in the form of ethics or bio-ethics committees. was the exclusiveprovince of the patient, the patient's family and the treatingphysician."[1] Today, approximately 8 percent of patients, in 1994 inAmerica 5,5 people a day, die in hospitals and other institutions.[2] In195 , 6 , people in the United States were age 85 or older; by the year2 3 , an estimated eight million Americans will reach that age.[3] In 1989,12 percent of that population was over age 65; by 2 3 an estimated 2 percent.[4] About 7 percent of those who die in institutions "die as aresult of someone's decision to withdraw or withhold life-sustainingtreatment."[5] Americans are living longer, in large part because of advances inmedicine. Bludworth, 452 S. [9] Urofsky, xiv. Arizona and Marylandstatutes exempt doctors from complying with the wishes of patients orothers if they run contrary to the care provider's conscience or areinconsistent with generally accepted standards of patient care.[44] UnderN.Y. [4] Linda C. Annas & Miller, based on their survey ofattitudes and practices, in the United States, the United Kingdom andJapan, toward the handling of decisions relating to terminally ill orcomatose patients report that the Japanese in particular, who take a matterof fact approach to such decisions, have shown little interest in the rightto life movement which has swept across the United States and, to a lesserextent, Europe, in recent decades.[13] That many Americans tend to avoid or even to deny the central fact oftheir mortality is borne out in the work of Elizabeth Kubler-Ross in whichshe outlines the process of denial many persons experience as they approachtheir end. 484 (1983).Brophy v. [3 ] Gregory, 148. Hoffman says that ethics committees are "multi-disciplinary . OTHER SOURCESGeorge J. Most of them do itquietly and indirectly, with perhaps only the family knowing or guessingthe truth."[27] A recent survey in 1995 showed that among doctors whohandled AIDs patients, about one half reported that they had assisted inthe suicide of at least one AIDs patient.[28] Assisted suicide has received national attention recently because ofthe activities of Dr. Jack Kevorkian, 'Dr. [33] The quotation is by Urofsky, 34. American Hospital Associates, 476 U.S. Activeeuthanasia is generally illegal. . 484(1983). Superior Court, 147 Cal.App.3d 1 6, 195 Cal.Rptr. Sec. Many patients in hospitals today havenot signed such documents and even if they have, circumstances may arisewhich were not clearly foreseen therein. In the dying patient situations, they are likely to be moreeffective if they recognize that they need to work with the health careorganization which must have input to the mediation process and is vitallyconcerned with its outcome for a variety of reasons, not the least of whichis the precedential effect of the mediator's decision in one case onothers. [it] found death for one-third of them was prolonged and painful, withheroic treatments such as mechanical ventilation or CPR being administeredroutinely even when patients directed these procedures be withheld."[41] California passed the first so-called natural-death act in 1976.Urofsky says that "since then nearly every other state has passed similarlegislation, although the provisions vary significantly."[42] By 1992, all5 states and the District of Columbia enacted some sort of living willstatute under which individuals could specify what sort of life-supportthey wished to have and under what circumstances, including advancedirectives, durable powers of attorney and other methods for designatingsurrogates or health proxies to carry out their wishes if they becameincompetent to decide for themselves. In one such case, which wasidentified in the press as occurring in an unidentified mid-size Americancity, parents objected to the withdrawal of life support from a 1 year oldgirl with an inoperable malignant brain tumor because, as the girl's mothersaid, "we don't believe in brain death," thus pulling the hospital into "anever-thickening moral and legal quagmire."[45] The hospital finally agreedto send the girl home with life-support equipment at its expense, where shedied. Sims-Taylor says that "there appearsto be no reliable data on the effectiveness of ethics committees.Committees vary widely in membership, procedure, perceived roles, andresponsibilities."[54] Sims-Taylor says that the powers of such committeesshould be strengthened to "to counter the imbalance of power affordeddoctors and hospitals."[55] She is also critical of the lack of due processand excessive informality of committee proceedings, their "lack ofaccountability, absence of rationale for their recommendations, and lack ofbroad-based representation."[56] She reports that "only 25% permittedpatients to initiate, 19% allowed them to attend and 44% allowed familymembers to attend" their proceedings.[57] Their size can sometimes lead toindecisive, long-winded discussions of general ethical principles, asopposed to effective and timely action. [55] Sims-Taylor, 363. It is estimated that in 199 as many as 25, "permanentlyunconscious patients were then . The mediation of such disputes are not a goodplace to start out novitiate mediators.Mediators cannot possibly be experts on all the many facets of suchproblems, but they should at least be conversant with medical technologiesand the pressures and constraints under which medical personnel andhospital administrators must operate. Allparticipants involved in the mediation process are entitled to seekjudicial review."[6 ] The formal mediation process typically the following stages: (1)information-gathering: (2) an initial session involving the mediator andthe disputants; (3) formal fact-finding and isolation of issues; (4)creation and discussion of options and alternatives; and (5) negotiationsto reach a consensus and final decision-making. Rhoden, Litigating Life and Death, 1 2 Harvard L. Doctors tend to be extremelybusy, and are often not disposed to have their medical judgementsquestioned by lay people. Directly pertinent to the process of death and dying is the belief ofsome fundamentalist Christian sects that only God can give life or take itaway, resulting in their opposition to treatment which prolongs life, theirnegation of any measures, active or passive, through which the hand of man,e.g. The essential skill required inmediation is the ability to facilitate meaningful discussion and to guidethe parties toward consensus. 1996).Cruzan v. [27] Urofsky, 67. [3] Lynne Sims-Taylor, Reasoned Compassion or a More Humane Forum: AProposal to Use ADR to Resolve Medical Treatment Decisions, 9 Ohio State J.of Dispute Resolution 369 (Spring, 1994). J. Sloane, Thomas F. 2d 921 (Fla. [7 ] Hoffman, 861. Rev. 837-838 (1992). Without a supportive environment for decision-making,opportunities for confusion, miscommunication, and conflict are rife --between family members, and between the family and the hospital staff."[66]Fentiman says that "in the case of an incompetent patient . For centuries,philosophers, religious and ethics thinkers have pondered the mystery ofdeath and its ultimate meaning. . Sims-Taylor says "the nature of the judicial system is adverseto humane treatment of these issues. Rev. 129-144 (1993).Simon Ramo, What's Wrong with Our Technological Society (1983).Restatement (Second) of Torts, sec. InSchloendorf v. [34] Fentiman, 8 3. Annas & Frances H. 1984) in whichthree such committees were asked to assist the court in reaching a decisionregarding a comatose patient with irreversible brain damage. [75] Hoffman, 871.----------------------- 34 Ann., sec. The Catholic Church in Pope John Paul II'sVatican Declaration of May 8, 198 has taken an approach which Urofsky hassummarized as follows: "When inevitable death is imminent in spite of themeans used, it is permitted in conscience to take the decision to use formsof treatment that would only secure a precarious and burdensomeprolongation of life, so long as the normal care due to sick persons insimilar cases is not interrupted."[24] Urofsky says that the Pro-LifeCommittee of the U.S. no parties to themediation may see it as their role to represent the interests of thepatient," but rather their own, whether or not they are conscious of thatfact.[71] Also on her list is relatively equal bargaining power of the parties.Mediations in family disputes, such as divorces or child custody battles,often fail because of the stress all parties feel. Pub. [4 ] id. In a seriesof cases in the 198 s known as the Baby Jane Doe or Roe and Baby Ldecisions, mothers refused to let babies with Down's Syndrome(mongoloidism) or other serious brain defects to be taken off life supportequipment.
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