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Who decides whether a patient lives or dies? Whether patients choose life-sustaining medical treatment or prefer to forgo it, they and their families sometimes clash with health care providers. In resolving these disputes, courts are facing tough questions of life and death.

Article Excerpt
Eighty-year-old Mary Wohlford had strong views about life-sustaining medical treatment (LSMT). When the time came for her to die, she did not want interventions to interrupt the dying process. She communicated her wishes as clearly and bluntly as she could imagine: with a tattoo on her chest that read, "DO NOT RESUSCITATE." (1)

Although few people go as far as Wohlford to express their wishes, many share similar feelings about the use of resuscitation techniques, ventilators, feeding tubes, and other life-sustaining measures when death is approaching. Others, of course, have precisely the opposite preference and want whatever interventions modern medicine can devise to try to extend life. Either way, patient preferences about end-of-life care can be frustrated by health care providers.

When this happens, patients or their families may seek legal representation. If the dispute over care is ongoing, the remedy sought may be an injunction requiring compliance with the patient's wishes. If unwanted interventions have already occurred, or if requested interventions have already been withheld, the patient, or others on his or her behalf, may seek damages.

The legal basis for claims against health care providers in these contexts is the right of informed consent. Arising out of "our Anglo-American legal tradition of personal autonomy," this common law principle vests in a competent patient "the fight of self-determination" about proposed invasions of the body. (2) Informed consent to treatment implies a "logical corollary" that the patient generally possesses "the fight not to consent, that is, to refuse treatment." (3)

The right of informed consent or refusal applies whether the treatment in question is aimed at curing a condition or at maintaining vital functions when a disease cannot be cured. For example, a patient with end-stage renal disease may accept dialysis or decline it. The fact that the consequence of declining is likely to be death underscores the need for a careful informed consent process, but it does not remove the decision from the patient. (4)

Patients who lack the capacity to engage in the informed consent process, however, present special challenges. Many people nearing the end of life have impairments from the terminal illness itself or from secondary disorders, such as clinical depression. Sometimes, decisional incapacity results from medical treatments (for example, the sedative effect of strong analgesics) or even the medical environment (for example, "ICU psychosis," in which acute-care patients develop a syndrome involving impaired intellectual functioning (5)). Whatever the cause, decisional incapacity threatens the control over end-of-life interventions that the informed consent doctrine seeks to ensure.

While decisional incapacity theoretically does not negate the patient's underlying right, (6) it does mean that the issue of end-of-life interventions must be addressed differently. When the patient is incapacitated, the physician must conduct the informed consent process with a proxy decision-maker who has the responsibility to decide on the patient's behalf, sometimes with the aid of a living will or similar advance medical directive. State law defines the circumstances under which a living will may be used to determine preferences about end-of-life care after a patient's loss of capacity. State law also secures a patient's right to identify a preferred proxy and, in most states, establishes next-of-kin decision-making authority without resort to guardianship.

Unwanted treatment

Most disagreements about the care of a dying patient are resolved without resort to the courts. (7) Nevertheless, from perhaps the earliest end-of-life case, In re Quinlan, (8) courts have issued declaratory or injunctive relief against health care providers who refuse to carry out a decision to forgo further use of LSMT. Of course, this decision must be based on sufficient evidence that it reflects the patient's wishes or promotes the patient's best interest. If such evidence is presented, courts give practical effect to the informed consent doctrine by ordering the treatment stopped?

Much more problematic, from a plaintiff's perspective, is obtaining damages after the fact. For example, in Anderson v. St. Francis-St. George Hospital, a nurse successfully resuscitated a patient, despite a"do not resuscitate" (DNR) order issued at the patient's request. (10) Two days later, the patient suffered a stroke, leaving...

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