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he technological developments of the last third of the 20th century resulted in dramatic changes in medicine’s ability to rescue the critically ill and/or injured from what might previously have been inevitable death and to sustain their lives under conditions which, to many, might seem to be of questionable desirability.  It was, no doubt, mindful of this that the late William Brennen, while an associate justice of the United States Supreme Court, began his opinion in the Cruzan case with the following:

Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues.  Some patients, however, want no part of a life sustained only by medical technology.  Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity.(Cruzan, 1990, p. 271, citing to the Arizona Supreme Court in Rasmussen v. Flemming).

While both Brennan and the court he quoted so approvingly were confronted with treatment decisions for patients who were permanently unconscious, the dilemma over whether or not to treat has since been raised for patients with various stages of dementia that fall short of the vegetative state.

Landmark cases, beginning with Quinlan in 1976, created an interest in advance directives1 and led ultimately to the passage of laws such as the South Carolina Death with Dignity and Health Care Power of Attorney Acts.  However, in spite of many well-publicized stories about families caught in crises concerning the proper treatment decisions for incapacitated loved ones, the majority of our citizens have not created such documents for themselves (Institute of Public Affairs, 2001).2             

The purpose of this paper is to review a recent California case and its potential implications for South Carolinians. 

THE WENDLAND CASE

On September 29, 1993, while driving at high speed under the influence of alcohol, Robert Wendland rolled his truck in a single-vehicle accident.  Injury to his brain left him conscious yet severely disabled, both mentally and physically.  Since he was unable to swallow, both food and water were administered by tube3 

For several months after the accident Robert was totally unresponsive.   During this time his wife, Rose, visited him daily, often with their children, and authorized treatment as necessary to maintain his health.  Although he eventually regained consciousness to the point where he could “throw and catch a ball, operate an electric wheelchair with assistance, turn pages, draw circles, draw an ‘R’ and perform two-step commands,”4 he remained severely disabled.

After Robert regained consciousness, Rose authorized surgery three times to replace dislodged feeding tubes.  When physicians sought her permission a fourth time, she declined.  By this time Robert had been unconscious for nearly two years and she believed that he would not have wanted to continue living under these circumstances.  She discussed the decision with her three daughters and with Robert’s brother Michael, all of whom believed that Robert would not have approved the procedure even if necessary to sustain his life.  Rose also discussed the decision with Robert’s treating physician, other physicians, and the hospital’s ombudsman, all of whom apparently supported her decision.  A nasogastric feeding tube was inserted to keep Robert alive pending input from the hospital’s ethics committee.

The 20-member ethics committee unanimously approved Rose’s decision.  The committee did not speak with Robert’s mother, Florence, or sister, Rebekah in the course of their deliberations.  His mother learned, apparently through an anonymous telephone call, that the nasogastric tube was to be removed.  They applied for a temporary restraining order to prevent this, and the probate court granted the motion ex parte5.

Rose immediately petitioned the court for appointment as Robert’s conservator6 with authority to “…withdraw and/or withhold medical treatment and/or life-sustaining treatment, including, but not limited to, withholding nutrition and hydration” (Wendland, 2001, p. 5).  The petition was opposed by Florence and Rebekah.  After a hearing, the court appointed Rose as conservator but reserved judgment on her request to remove the feeding tube.  The court ordered continuation of the current plan of physical therapy for 60 days and to report back to the court on Robert’s status at the end of that period. 

After the 60-day period elapsed without significant improvement in Robert’s condition, Rose asked again for authority to remove the feeding tube.  When the court denied his mother’s and sister’s request to appoint independent counsel for Robert and the Court of Appeals summarily denied their petition for a writ of mandate (to compel the trial court to do so),  the California Supreme Court reviewed the case and transferred it to the Court of Appeals, which then directed the trial court to appoint counsel.  The appointed counsel, exercising his independent judgment, supported Rose’s decision. 

When the case proceeded to trial, the court held that Rose would be allowed to withhold artificial nutrition and hydration only if that would be in Robert’s best interest, taking into account any pertinent wishes that he may have expressed before becoming incapacitated.  The court also determined that Rose would have to prove the facts justifying her decision by “clear and convincing” evidence. 

At trial the testifying physicians agreed that Robert would not likely experience further cognitive recovery.  His treating physician testified that, to the highest degree of medical certainty, Robert would never be able to make medical treatment decisions, walk, talk, feed himself, eat, drink, or control his bowel and bladder functions.  There was also medical testimony that described him as being in a “minimally conscious state in that he does have some cognitive function” and having the “ability to respond to his environment,” but not to “interact” with it “in a more proactive way” (Wendland, 2001, p. 7). 

Robert’s wife, brother and daughter recounted pre-accident statements Robert had made concerning his attitude toward life-sustaining health care.  The first occasion was Rose’s decision whether to turn off a respirator sustaining the life of her father, who was near death from gangrene.  She recalled Robert saying: “I would never want to live like that, and I wouldn’t want my children to see me like that and look at the hurt you’re going through as an adult seeing your father like that.”  On cross-examination, Rose acknowledged that Robert said on this occasion that her father “wouldn’t want to live like a vegetable” and “wouldn’t want to live in a comatose state”  (Wendland, 2001, p. 8).           

Robert developed a serious drinking problem after his father-in-law’s death and, when counseled by his brother about what could happen if he were involved in a serious traffic accident he replied: “If that ever happened to me, you know what my feelings are.  Don’t let that happen to me.  Just let me go.  Leave me alone” (Wendland, 2001, p. 9).   His daughter, Katie, testified that he said “if he could not be a provider for his family, if he could not do all the things that he enjoyed doing, just enjoying the outdoors, just basic things, feeding himself, talking, communicating, if he could not do those things, he would not want to live” (Wendland, 2001, p. 9).           

The court found that Rose “had not met her duty and burden to show by clear and convincing evidence that [Robert], who is not in a persistent vegetative state nor suffering from a terminal illness would, under the circumstances, want to die.  [She] has likewise not met her burden of establishing that the withdrawal of artificially delivered nutrition and hydration is commensurate with [Robert’s] best interests….”  The court further found that Rose had acted in good faith and would permit her to remain as conservator, but she would have no power to direct the removal of nutrition and hydration.             

Rose appealed the lower court decision and the Court of Appeals reversed.  Following this reversal, the California Supreme Court granted review.  Amicus curiae (Friend of the Court) briefs in support of Rose were submitted to the Supreme Court by the Alliance for Catholic Health Care, the California Healthcare Association, the California Medical Association, Catholic Healthcare West, Mercy Healthcare Sacramento, the San Francisco Medical Society, and 43 Individual Bioethicists.  Opposing briefs were submitted for the Coalition of Concerned Medical Professionals, the Ethics and Advocacy Task Force of the Nursing Home Action Group, the National Legal Center for the Medically Dependent & Disabled, Inc., and a number of disability rights groups.

Robert Wendland died of pneumonia several weeks after oral arguments had concluded.  Although the court might have dismissed the case as moot, they chose to issue a decision because it represented an issue that was capable of repetition and might otherwise evade review.  On August 9, 2001, the State Supreme Court unanimously (6-0) reversed the decision of the Court of Appeals.

THE CONTEXT

Wendland is the latest in a line of cases tracing back to the New Jersey Supreme Court’s decision in the dispute growing out of the treatment of Karen Ann Quinlan (Quinlan, 1976).  Karen Ann, then 21-years-old, had suffered oxygen deprivation to her brain from the interactive effect of alcohol and tranquilizers and was left in a state of permanent unconsciousness, later to become known as the “persistent vegetative state” (PVS).  Although her doctors agreed there was no likelihood of recovery to a “cognitive, sapient state,” her parents’ request to remove her from the ventilator that was then thought to be sustaining her breathing, and with it her life, was refused by her physicians.  Although the trial court ruled against stopping treatment, a unanimous (7-0) New Jersey Supreme Court held that Karen’s constitutionally-protected right to refuse treatment survived her loss of decision-making capacity and that if her parents and the hospital ethics committee agreed that there was no likelihood of her recovery, the ventilator could be withdrawn without any fear of civil or criminal liability.   

In the twenty-five years since Quinlan we’ve learned that (1) the court confused the role of the ethics committee7 with that of a prognosis committee8, (2) that most patients in a PVS are capable of breathing without a ventilator—Karen Ann lived on for nearly a decade without regaining consciousness before she died in 1985—and (3) that even more contentious treatment decisions were yet to come.             

Although it was not the first court to grapple with the question of feeding tubes, the United States Supreme Court decision in the Cruzan (1990) case is quite likely the most important.  Like Karen Ann Quinlan, Nancy Cruzan was a young woman (age 25) who had been left permanently unconscious due to oxygen deprivation to her brain resulting from a single-car accident.  When it became apparent that she wasn’t likely to recover, her parents—like those of Karen Ann—sought to discontinue the treatment that was sustaining her life.  Unlike Karen Ann, however, Nancy was breathing without assistance.  The treatment that was sustaining her life was a tube that had been implanted into her stomach through which she was being fed and hydrated.  Since Nancy was being “treated” in a state facility, the parents were opposed by the State of Missouri as represented by the state's Attorney General.             

Although the parents prevailed at the level of the Probate Court, that decision was reversed by the Missouri Supreme Court (Cruzan, 1988). It was subsequently appealed to the U. S. Supreme Court which, by a 5 to 4 decision, held that the State of Missouri could, as a requisite for removing Nancy’s treatment, require that it be proved by clear and convincing evidence9 that this is what she would choose to do were she able to decide.  The court refused to draw a distinction between artificial nutrition and hydration and other forms of medical treatment.  Shortly after the decision the Cruzan’s presented the Probate Court with additional evidence of Nancy’s wishes regarding life-sustaining medical treatment.  The court held that the burden of proof had been satisfied and the feeding tube was removed.             

Referring to public opinion polls which demonstrated that the vast majority of Americans would not choose to have their lives maintained under circumstances such as Nancy was in, the Cruzan dissenters argued that the only legitimate interest of the State of Missouri was in safeguarding the accuracy of determining her wishes.  Here, they claimed, the state had failed to do so. The state had established a high standard of proof (clear and convincing evidence) to rebut the assumption that Nancy would have declined treatment, but no proof was required to support a finding that the incompetent person would wish to continue treatment.             

Rather than continuing to treat Nancy, contrary to the wishes of her parents, when firm evidence of the patient’s wishes is absent, the dissenters would have established a presumption in favor of the family.  The majority acknowledged that while close family members might well have strong feelings about the decision, “there is no automatic assurance that [their] view will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competent (Cruzan, 1990, p. 4399).

To this, Justice Harry Blackmun commented in his dissent:

I cannot quarrel with this observation.  But it leads only to another question.  Is there any reason to suppose that a State is more likely to make the choice that the patient would have made than someone who knew the patient intimately?  To ask this is to answer it.  As the New Jersey Supreme Court observed: “Family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient’s approach to life, but also because of their special bonds with him or her ….  It is...they who treat the patient as a person, rather than a symbol of a cause.”  (Cruzan, 1990, p. 4933).

Although the U. S. Supreme Court held that the State of Missouri was not constitutionally constrained from using the clear and convincing standard of proof if it wished to do so, other states were free to use the more traditional standard in civil cases, the preponderance of the evidence.  Cantor has recently described the clear and convincing standard as “harsh and imprudent.”

Although well intended, the requirement of clear and convincing evidence of the now-incompetent patient’s wish to withdraw life support represents a harsh and inhumane constraint on end-of-life decision-making.  Very few people articulate their prospective wishes with the precision demanded by the few courts following this standard.  The consequence … is that many individuals have been forced to linger in gravely debilitated states…, which they would almost surely have wanted to avoid. (Cantor, 2001, p. 190).

Although the Wendland decision does not apply to the “more typical” cases where the patient is either terminally ill or permanently unconscious, California has now joined Missouri, New York, Michigan and Wisconsin, among the minority of states adopting—at least in some circumstances—the more restrictive clear and convincing evidence standard.

ENTER ADVANCE DIRECTIVES

One of the immediate effects of the Quinlan case was a stimulation of interest in advance directives.  The concept of a living will had been proposed years before Quinlan but living will legislation had yet to be passed in any state.  Additionally,  without the assurance of statutory immunity,  healthcare providers were uneasy about withholding or withdrawing life-sustaining treatment from patients who lacked decision-making ability.  California, responding to the publicity surrounding the Quinlan case, was the first to enact such a law (Fulton & Metress, 1995, pp. 119-121).           

Although commendable for “going first,” there were a number of serious problems with the new law.  First, although stimulated by Quinlan, it applied only to the “terminally ill,” a diagnostic group quite distinct from the permanently unconscious.  Second, it required a waiting period of two weeks after a diagnosis of terminal illness before a living will could be created.  This would further have limited the usefulness of living wills to only those who (1) had decision-making ability at the time of the diagnosis and (2) retained it throughout the waiting period. The number of patients who could meet those qualifications was obviously limited.            

These shortcomings were eliminated from many of the advance directive laws that were passed by the various states in subsequent years.  The best of those laws broadened the qualifications for a “qualified” patient and added provisions for naming a surrogate decision-maker by granting a healthcare power of attorney.  Still others included a provision for identifying the appropriate decision maker where the patient, now unable to act, had failed to anticipate this loss of decision-making capacity.  California, in fact, recently enacted such legislation which was “interpreted” by the California Supreme Court in Wendland          

Section 2355 of the California statutes became effective on July 1, 2000.   While significantly broadening the rights that had been acknowledged under the earlier versions of California’s living will and durable power of attorney for healthcare legislation, it specifically addressed the matter of failure to create an advance directive.

The new law, which was based upon the Uniform Health-Care Decisions Act adopted in 1993 by the National Conference of Commissioners on Uniform State Laws, states that:  “If the conservatee has been adjudicated to lack the capacity to give informed consent for medical treatment, the conservator has the exclusive authority to give consent for such medical treatment to be performed on the conservatee as the conservator in good faith based on medical advice determines to be necessary…” (Wendland, 2001, p. 22).           

The Law Revision Commission, in explanatory comment, noted that “the [evidentiary] standard is by preponderance of the evidence.  Proof is not required by clear and convincing evidence”  (Cal. Law Revision Com. Rep. as cited in Wendland, 2001, p. 28, emphasis added).  In dismissing the significance of this, the court opined that “one may legitimately question whether the legislature can fairly be assumed to have read and endorsed every statement in the commission’s 280-page report on the Health Care Decisions Law”  (Wendland, 2001, p. 28).           

Robert’s mother and sister had argued that if the law were to be construed to permit Rose to authorize withdrawal of Robert’s feeding tube based on the less rigorous standard cited by the Commission it would be unconstitutional.  The court, finding merit in this objection, reached a “compromise” that might easily have come from the pen of Lewis Carroll.  They interpreted the statute as requiring “…clear and convincing evidence of a conscious conservatee’s wish to refuse life-sustaining treatment when the conservator relies on that asserted wish to justify withholding life-sustaining treatment.  This construction does not entail a deviation from the language of the statute and constitutes only a partial rejection of the Law Revision Commission’s understanding that the preponderance of the evidence standard would apply; we see no constitutional reason to apply the higher evidentiary standard to the majority of health care decisions made by conservators not contemplating a conscious conservatee’s death”  (Wendland, 2001, p. 29).           

The California Supreme Court seemed to recognize that some people, contemplating a situation such as Robert’s, might regard it as a “fate worse than death.”  “Certainly it is possible, as the conservator here urges, that an incompetent and uncommunicative but conscious conservatee might perceive the efforts to keep him alive as unwanted intrusion and the withdrawal of those efforts as welcome release.  But the decision to treat is reversible.  The decision to withdraw treatment is not. The role of a high evidentiary standard in such a case is to adjust the risk of error to favor the less perilous result”  (Wendland, 2001, p. 35, emphasis added).           

The court sought support for such a conclusion from the majority opinion in the Cruzan case.  Writing for a divided court, Chief Justice Rehnquist opined: “An erroneous decision not to terminate [treatment] results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventually be corrected or its impact mitigated.  An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction”  (Wendland, 2001, p. 36 citing Cruzan at p. 28).           

But what if Robert Wendland’s wishes were otherwise?  For whatever reasons might have been peculiar to him, what if he would have chosen death over such severe disability?  What if his wish to avoid prolonged existence under such circumstances were to be based on his own concept of personal dignity?  The kind of memory of him that he wanted to leave with his family?  The wish to spare his family exactly the same kind of distress that they were now going through?  Or even the wish to avoid impoverishing his loved ones by paying for the kind of treatment that he, and they, viewed as providing no benefit to him?  Should the ability to eschew life-sustaining medical treatment under such circumstances be limited only to those who had left “clear and convincing evidence” of their intent?  Or, in the words of Justice Stevens, writing in dissent in the Cruzan case, should a person’s constitutional right to be free from unwanted medical treatment be “…categorically limited to those patients who had the foresight to make an unambiguous statement of their wishes while competent?”  (Cruzan, 1990, p. 272).

WENDLAND IN SOUTH CAROLINA

Let us suppose for a moment that the Wendland case had arisen in South Carolina.  Might the outcome have been different? 

Like California, South Carolina has a statutory provision for making medical treatment decisions when the patient permanently lacks decision-making capacity but has created neither a living will (Declaration of a Desire for a Natural Death) nor a healthcare power of attorney.   The Adult Health Care Consent Act (Section 44-66-10 et seq.) establishes a hierarchy for designation of the proper surrogate decision-maker, or agent, for incompetent patients.  The hierarchy follows common social custom which values marriage and families; spouse precedes parent or adult child, unless there is evidence of incompetence, intent to harm or lack of good faith.  Under the provisions of the Act (Section 44-66-10 et seq.) Rose Wendland would have had authority to either “…consent or withhold consent to health care on behalf of the patient”  (Section 44-66-30 (G)).  “The decision must be based on the patient’s wishes to the extent that the patient’s wishes can be determined.  Where the patient’s wishes cannot be determined, the person must base the decision on the patient’s best interest”  (Section 44-66-30 (F)).  

Since the statute is silent regarding the appropriate evidentiary standard, a reviewing court would have to choose between the typical standard in civil cases—the preponderance of the evidence—or imposing the higher standard of clear and convincing evidence.  Should the South Carolina courts decide to follow the lead of the California Supreme Court in requiring the higher standard, the designated decision-maker would face the same dilemma as Rose Wendland.  The Adult Health Care Consent Act also states that decision-making authority may not be given to person whom the patient, before becoming unable to consent, didn’t want to be involved with such decisions (Section 44-66-30 (D)).  Since there was evidence in the Wendland case that Robert was estranged from his mother for years prior to his accident, a court might well hold that she lacked standing to dispute the either the testimony or the authority of his wife.

THE LESSONS OF WENDLAND

Although it’s been a quarter of a century since the Quinlan case was decided by the New Jersey Supreme Court,  and we now have statutes in every state that would allow for the creation of some form of advance directive, the number of adults who have done so is regularly estimated at less than 25 percent.  Even in such cases as Quinlan and Cruzan, where there was agreement among all of the family about what their daughter would have wanted, the process of seeing that those wishes are respected can often be difficult.  In cases where there is disagreement in the family—such as the Wendland case—the outcome can be devastating to the family and, arguably, contrary to what the now-incapacitated loved one might have wanted.  Two such cases with divergent outcomes—the Martin case in Michigan10 (where the court ruled against the wife in a case very similar to Wendland) and the Finn case in Virginia11 (where the wife prevailed) have been decided.  Still another—the case of Terry Schiavo in Florida12—is in progress. All of this could have been avoided by the use of a simple and inexpensive advance care planning document.           

The South Carolina living will law (Death With Dignity Act) would allow an adult with decision-making capacity to create a document that would direct the course of medical care should they later lose the ability to make decisions.  One of the shortcomings of the law is that it is written to apply to the withholding or withdrawal of life-sustaining procedures only where the patient is either terminally ill or permanently unconscious and, arguably, would not apply where the patient was in a condition like Robert Wendland.  Therefore, if one were to use such a document and, in addition, wish to avoid life-prolonging treatment under such circumstances, it would be necessary to insert such instructions.  Such wishes would likely be upheld as being within the common law or constitutionally-protected rights of competent patients to refuse all forms of unwanted medical treatment and presumably would be clear and convincing evidence of their intent (Fulton & Metress, 1995, pp. 140-145).            

Another way of ensuring that one’s wishes will be respected is to appoint a trusted relative or friend to represent them under a power of attorney for health care.  Unlike the limitations of the Death With Dignity Act, the healthcare power of attorney authorizes the representative (attorney-in-fact) to unconditionally to “…consent or withhold consent…to health care” (Section 62-5-501).  This is known as a “springing” power in that it becomes effective upon the physical disability or mental incompetence of the principal.13 One of three “statement of desires” options in the statutory form is: “I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my Agent believes the burdens of treatment outweigh the expected benefits.  I want my Agent to consider the relief of suffering, my personal beliefs, the expenses involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment” (Section 62-5-501).  If Robert Wendland had expressed his wishes through such a document it might be presumed that Rose, as his agent, would have been able to act accordingly.             

The Adult Health Care Consent Act (Section 44-66-10 et. seq.) would allow the statutorily-appointed representative for a patient without an advance directive the same decision-making authority as an attorney-in-fact but, ironically, much less authority than would exist under the statute for a patient with a “living will.”  Like the health care power of attorney law, the AHCCA surrogate is authorized to “…consent or withhold consent to health care on behalf of the patient” (Section 44-66-30(G)).  The decision must, however, be based “…on the patient’s wishes to the extent that the patient’s wishes can be determined.  Where the patient’s wishes cannot be determined, the person must base the decision on the patient’s best interest” (Section 44-66-30(F)).  The “living will” statute would only allow life-sustaining treatment to be withheld or withdrawn if the patient were terminally ill or permanently unconscious.           

Recently the Carolinas Center for Hospice and End-of-Life Care (formerly Hospice of the Carolinas), with offices in both North and South Carolina, has launched an effort to train advance care planning facilitators throughout the two states.  In February of 2001, they sponsored a leadership conference to certify 25 advance care planning trainers from each state.  The trainers, in turn, will be conducting programs for other healthcare professionals in hospitals, nursing homes, hospices, and senior citizen programs throughout their respective states.  The model for this program is one that has been developed by Gunderson Healthcare Center in LaCrosse, Wisconsin, and has resulted in the widespread implementation of advance directives there.   Although representing a much smaller and more culturally homogeneous population than that of the Carolinas, the LaCrosse project resulted in a situation where more than 80 percent of those who died had documentation in their medical record indicating their treatment preferences and values or their choice of a healthcare agent who could speak for them when they were no longer to speak for themselves (Hammes and Rooney, 1998; Hammes, 1999).   Perhaps efforts such as this, along with increasing public awareness of cases such as Wendland (and the others discussed herein), will succeed in putting more of these decisions into the hands of the person or persons best suited to speak for the Robert Wendland’s of the world.

REFERENCES

  1. Cantor, N.L. (2001). Twenty-five years after Quinlan: A review of the jurisprudence of death and dying. Journal of Law, Medicine & Ethics, 29(2), 182-196.
  2. Cruzan, by Cruzan v. Harmon, (1988). 760 S. W. 2d 408 (Mo. banc).
  3. Cruzan v. Director, Missouri Department of Health (1990), 497 U.S. 261.
  4. Fulton, G.B. and Metress, E.K. (1995). Perspectives on death and dying.  Boston, MA: Jones and Bartlett. 
  5. Hammes, B.J. and Rooney, B.L. (1998).  Death and end-of-life planning in one midwestern community, Archives of Internal Medicine, 158, 383-390.
  6. Hammes, B.  (1999). The lessons from respecting your choices: An interview with Bernard Hammes by A.L. Romer, Innovations in end-of life care, 1(1),  [electronic version], available on-line at http://www.edc.org/lastacts.
  7. Institute of Public Affairs (2001). South Carolina state survey: Summary findings for the South Carolina collaborative on end-of-life care.  Columbia, SC: University of South Carolina.
  8. Quinlan, In re (1976). 137 N.J. Super. 227, 348 A. 2d 801 (Ch. Div), 1975), rev’d, 70 N. J. 10, 355 A. 2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U. S. 922, 50 L. Ed. 2d 289, 97 S. Ct. 319 (1976 overruled in part, In re Conroy, 98 N. J. 321, 486 A. 2d 1209 (1985).
  9. Rasmussen v. Flemming, (1987). 154 Ariz. 207, 211, 741 P. 2d 674, 678 (en banc).
  10. S.C. Code Ann. §§ 44-77-10-160 (Death With Dignity Act).
  11. S. C. Code Ann. §§ 62-5-501-505 (Health Care Power of Attorney).
  12. S. C. Code Ann. §§ 44-66-10-80 (Adult Health Care Consent Act).
  13. Teel, K. (1975). The physician’s dilemma—A doctor’s view: What the law should be. Baylor Law Review, 27(1), 6-9.
  14. Wendland v. Wendland, (2001). Decision of the California Supreme Court filed August 8, 2001, [electronic version], available on-line athttp://www.courtinfo.ca.gov/courts/supreme/summaries.

NOTES

  1. An advance directive is a document created to guide health care decisions in anticipation of the possible loss of decision-making ability.  Such documents typically take the form of either an instructional directive (a/k/a “living will”) or appointment of a surrogate decision-maker (a/k/a “durable power of attorney for health care”).
  2. A recent survey by the University of South Carolina’s Institute of Public Affairs estimated that 17.9 percent of residents had signed a living will, 7.5 percent had signed a health care power of attorney, and 7.6 had signed both.   “A majority of South Carolinians—58.9%—said they had done nothing concerning their health care in a situation where they might not be able to make decisions for themselves….  The percentage who had signed a living will increased from 7.2% among those age [sic] 18 to 29 to 45.2% among those 65 or older, while the percentage who had signed a health care power of attorney ranged from 8.8% of those under 30 years of age to 29.0% in the oldest age category.  Similarly, a much higher percentage of those with a college degree than those with less education had prepared a living will or signed a health care power of attorney” (Institute of Public Affairs, 2001).
  3. The circumstances under which the accident occurred and the description of Robert’s condition are taken nearly verbatim from the Court’s decision (Wendland, 2001).
  4. “For example, he could respond appropriately to the command ‘close your eyes and open them when I say the number 3.’ … He could choose a requested color block out of four colored blocks.  He could set the right peg in a pegboard.   Augmented communication attempts, using a machine that produces the words ‘yes’ and ‘no’ when corresponding buttons are touched, were inconsistent.  He remained unable to speak.  Eye blinking was successfully used as a communication mode for a while, however no consistent method of communication was developed” (Wendland, p. 4). 
  5. Done for, in behalf of, or on the application of, one party only (Black’s Law Dictionary, 4th ed. rev.).
  6. A conservator is like a guardian.  “When any person having property shall be found to be incapable of managing his affairs, by the court of probate in the district in which he resides, * * * it shall appoint some person to be his conservator, who upon giving a probate bond, shall have the charge of the person and estate of such incapable person”  (Black’s Law Dictionary, 4th ed. rev.).
  7. The Quinlan decision was largely responsible for the development of hospital ethics committees.  Although there were few in existence at that time, the New Jersey Supreme Court seemed to be influenced by a short article in the Baylor Law Review which suggested that hospitals might use ethics committees to protect patients (and themselves) much as used institutional review boards (IRB) to ensure protection of research subjects  (see Teel, 1975).
  8. The court seemed to envision the ethics committee deciding whether or not there was a likelihood of Karen ever returning to a “cognitive, sapient state,” a judgment best left to a prognosis committee comprised of specialists in the neurosciences rather than the multi-disciplinary membership that comprises the typical ethics committee.
  9. In civil matters the standard of proof is typically the preponderance of the evidence, i. e., “Is it more likely than not that the statement or situation is accurately portrayed?” The clear and convincing standard is higher than that, but lower than the beyond a reasonable doubt standard that is used in criminal trials.
  10. The facts in the Martin case were nearly identical to those in Wendland.  Michael Martin was severely impaired, but not permanently unconscious, as the result of a car-train accident.  His wife’s efforts to discontinue tube-feeding were opposed by his mother and sister.  Like Wendland, the Michigan Supreme Court—finding an absence of clear and convincing evidence of Michael’s wishes—ruled against discontinuation.
  11. The Finn case pitted Hugh Finn’s wife and sister against his mother and siblings.   Unlike Michael Martin and Robert Wendland, Hugh Finn was diagnosed as being permanently unconscious and the court ruled that his wife could authorize discontinuation of tube feeding. 
  12. The Schiavo case, another instance of families in dissent, is currently in progress in Florida.
  13. Mental incompetence is determined according to the standards and procedures for inability to consent under Section 44-66-20(6) of the Adult Health Care Consent Act. The patient must be “…unable to appreciate the nature and implications of [his/her] condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner…. A patient’s inability to consent must be certified by two licensed physicians, each of whom has examined the patient.”

ABOUT THE AUTHORS

Gere B. Fulton, Ph. D., J. D., received a Ph. D. in health education from the University of Maryland in 1967 and a J. D. from the University of Toledo’s College of Law in 1983.  He has taught at Temple University, the University of New Jersey, Dalhousie University, and the University of Toledo.  He was granted the title of Emeritus Professor from the University of Toledo in 1999.  He is currently a professor in the University of South Carolina’s School of Medicine, an adjunct professor in the School of Public Health, and a member of the core faculty in the Center for Bioethics and Medical Humanities of the Institute for Public Service and Policy Research.

Donald E. Saunders, Jr., M.D. graduated from Duke University School of Medicine in 1955 and did post-graduate training at Duke, Johns Hopkins and the National Heart Hospital in London, UK.  He is board certified in internal medicine and cardiology.  He is Distinguished Professor of Medicine Emeritus at the University of South Carolina School of Medicine and was formerly Chief of Cardiology and Senior Associate Dean.  He co-founded the USC Center for Bioethics and Medical Humanities of the Institute for Public Service and Policy Research. Dr. Saunders can be reached at dsaunder@richmed.medpark.sc.edu.


CONTACT:

Richard D. Young, Editor in Chief
Public Policy & Practice
Institute for Public Service and
Policy Research
University of South Carolina
Columbia, SC 29208
Phone: (803) 777-0453
Fax: (803) 777-4575
e-mail: young-richard@sc.edu
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