Posts Tagged ‘AIDS’

Generic Living Will May Not Prevent Life-Sustaining Care


In nearly every state, living wills and health care powers of attorney can effectively declare a patient’s wishes regarding medical treatment and authorize an agent to carry out those wishes. In some states, the two kinds of documents may be combined into a single form, and they may be known by different names (“health care proxy” or “statement of wishes regarding health care,” for example). The ability of patients to direct the kind of care they will receive or not receive is seldom at issue. What frequently leads to legal complications, however, is how the directives are to be interpreted, when they become effective, and who must abide by them.

A recent Maryland court case illustrates the kinds of problems encountered in the practical use of advance directives. Robert Lee Wright thought he had taken care of the whole advance directive issue. He had signed a living will in the form set out by Maryland law, and had named his mother as his health care agent. These steps were not taken lightly; Mr. Wright had recently been diagnosed as suffering from AIDS, and his health care was an important and pressing issue at the time.

In July, 1994, Mr. Wright was at Johns Hopkins Hospital for treatment of kidney problems. He expected to undergo a blood transfusion and then return home. Instead, immediately after the blood transfusion he suffered cardiac arrest; within ten minutes of his heart failure, hospital staff had performed CPR. Mr. Wright’s life was saved, but he remained comatose for two days. He had apparently suffered brain damage during the cardiac arrest, and after he awoke from the coma he could only moan and call for his mother. He died ten days after the administration of CPR.

Mr. Wright’s parents brought suit against Johns Hopkins Hospital, alleging that his living will had instructed that he not be treated aggressively, and that hospital staff should have sought her permission (pursuant to the health care power of attorney) before resuscitating him. The trial judge dismissed the complaint, and the parents appealed.

Maryland’s Court of Appeals agreed with the hospital and the lower court. Mrs. Wright testified that both she and her son understood the living will to mean that “in the event it came [his] time to go, [he] did not want any life-sustaining procedures performed on him,” but the Court noted that the forms he signed did not make such a broad statement.

Mr. Wright’s living will and health care power of attorney, provided by Maryland law as a form for easy use, required that two physicians certify that he was in a terminal condition and that his death was imminent. Since no doctors had yet certified Mr. Wright as terminally ill, his directives were not yet effective at the time he underwent the blood transfusion in the hospital.

Does an individual have a legal cause of action when the hospital (or physician) provides care in violation of the individual’s advance directive? Yes, the court ruled, there is such a cause of action. Because Mr. Wright relied on the formulaic directives provided by the statute, however, Mrs. Wright could not show that the hospital had acted incorrectly. Wright v. Johns Hopkins Hospital, April 20, 1999.

Arizona law also provides a form advance directive for the patient’s convenience. That form does not require physicians to certify that the patient is terminally ill, though a “terminal condition” is mentioned in more than one place. Nothing in Arizona law, however, limits the applicability of living wills or health care powers of attorney to terminal conditions. Just as in Maryland, a patient could make a broader statement of his or her wishes. As in all legal matters, it is important to carefully read the form and make sure it properly expresses your wishes.

Lifetime Transfers By Elderly Patient Upheld After Death


Stories about relatives and friends taking advantage of the elderly are widespread. Several cases reported in Elder Law Issues involve courts setting aside transfers by vulnerable adults to caregivers, family members or others. But what about the capable adult who, though elderly, truly wishes to make a gift?

Ohioan Harold Hawkins was diagnosed as suffering from Parkinson’s disease ten years before his wife’s death in 1991. After her death, Minnie Nash and her husband Ples, friends of the Hawkins’, moved in with Mr. Hawkins to help take care of him.

Nearly from the beginning, Hawkins and the Nashes had an understanding about the assistance. Mr. Hawkins would provide a home for the three of them, Mr. and Mrs. Nash would provide care for Mr. Hawkins and necessary upkeep and repairs, and Mr. Hawkins would transfer his interest in the property to the Nashes. In March, 1992, Mr. Hawkins signed a power of attorney naming Mrs. Nash as his agent, and a month later he quit-claimed his home to the Nashes. At about the same time, he also changed the beneficiary on his VA life insurance to name the Nashes.

Mr. Hawkins died a little more than a year later. His sister, Clover Elliott, brought an action to set aside the transfers and to recover the property and VA insurance benefits.

Many cases establish the principle that such transfers are suspect, based on the “confidential relationship” between Mr. Hawkins and Mrs. Nash. In this case the trial judge acknowledged that the Nashes had the burden of proving the transfers valid. Still, the court noted that they could show Mr. Hawkins knew what he wanted to do and acted out of his own volition.

At trial, the Nashes introduced evidence that Mr. Hawkins was lucid and alert right up until his death. The trial judge ruled (and the Court of Appeals later agreed) that the Nashes had shown “competent and credible evidence showing the quit-claim deed and the VA Change of Beneficiary Form were executed pursuant to decedent’s declarations and wishes.” The Nashes prevailed, and Mr. Hawkins’ wishes were upheld. Elliott v. Hawkins, Ohio Court of Appeals, December 28, 1995.

Perspectives on Death and Dying

According to a recent article in the Journal of the American Medical Association, different ethnic groups may have distinctly different views of medical care issues at the end of life. The article reports on a University of Southern California of 800 elderly patients.

Study results indicate that immigrants from South Korea and Mexico are particularly likely to differ from the more common views of European-Americans and African-Americans. While the latter groups (and the legal system) focus on a patient self-determination model, the immigrant groups were much more likely to rely on family consensus and less inclined to permit patients to make their own decisions.

A second study reports on Do Not Resuscitate orders among terminally ill AIDS patients. Perhaps surprisingly, the study reveals that about 2/3 of such patients would want to be resuscitated. About half of even those who rated their own prognosis as poor wanted resuscitation.

Major New Developments In Physician- Assisted Suicide

MARCH 11, 1996 VOLUME 3, NUMBER 37

Although physician-assisted suicide has been much discussed in recent years, few legal developments have advanced the state of the law since Oregon voters approved an initiative measure in November, 1994. That changed dramatically this week, with two major developments. On Wednesday, a Federal Appeals Court ruled that Washington State’s ban on assisting with suicide is unconstitutional, at least as applied to “physician-aid-in-dying.” Then on Friday, a Michigan jury found Dr. Jack Kevorkian not guilty in his second criminal trial for allegedly assisting terminally ill patients to commit suicide.

Although the Kevorkian case is probably better-known, the Federal Court of Appeals decision is of far more significance, particularly in Arizona. The case, Compassion in Dying v. State of Washington, was decided by the Court of Appeals responsible for reviewing Arizona, California, Washington, Oregon, Nevada, Idaho and Montana laws. Since it is based on the U.S. Constitution, the case stands as precedent for all those states, at least until the U.S. Supreme Court rules otherwise.

The Compassion in Dying case began after Washington voters turned down an initiative measure on physician-assisted suicide. In spite of the election results, a group of Washington doctors formed Compassion in Dying, a non-profit group, to help terminally ill patients effectively and painlessly end their lives.

Compassion in Dying, its doctor members, and three terminally ill patients sued in Federal Court to invalidate Washington’s criminal statute on assisting suicide. The patients, all three of whom have since died, are described in the Court of Appeals decision by pseudonyms:

  • Jane Roe, 69, a retired pediatrician. Ms. Roe had suffered from cancer for six years, and the disease had metastasized throughout her skeleton by the time the lawsuit was filed. She was in constant pain, and suffered from swollen legs, bedsores, nausea, vomiting, impaired vision and other effects of her illness.
  • John Doe, 44, an artist suffering from AIDS. Mr. Doe had been diagnosed three years earlier, and had lost 70% of his vision, suffered from pneumonia, skin and sinus infections, seizures and extreme fatigue.
  • James Poe, 69, a retired sales representative suffering from emphysema. Mr. Poe was connected to an oxygen tank at all times, constantly felt he was being suffocated and took morphine regularly to calm his panic reaction. Like the others, he was in the terminal phase of his illness.

The Court, in an eloquent and thoughtful decision, found that the U.S. Constitution permits a competent terminally ill patient to have aid from a physician in ending his or her life. Washington’s statute (which is nearly identical to Arizona’s) is therefore invalid as applied to physician-aid-in-dying.

In reaching its conclusion, the Court assayed the history of suicide in ancient times and modern opinion. According to the Court, ancient Greeks, Romans and Christians viewed suicide as acceptable, particularly where the victim was ill and in pain. And public opinion polls show a dramatic shift on the subject in recent years: while 37% of respondents favored permitting doctors to assist terminally ill patients to commit suicide in 1947, more than half were in favor in a 1973 poll. By 1983, 63% favored physician-aid-in-dying.

Although there is no guarantee that the U.S. Supreme Court will rule on the question, an appeal to that court is expected.

Independent Social

MAY 16, 1994 VOLUME 1, NUMBER 25

Security Agency

Senate Finance Committee Chairman Daniel Patrick Moynihan is urging Congress to establish Social Security as an independent agency. The New York Democrat argues that such a move would help insulate the program from political attacks and manipulations.

Social Security frequently comes under attack for its perceived contribution to the federal deficit. Moynihan points out that the program actually is “off budget,” meaning that revenues received and benefits paid are separate from federal budget calculations and do not affect the deficit.

Moynihan argues that Social Security would also have a higher public profile than it enjoys as a division of the Department of Health and Human Services. The Social Security Administration employs 63,000 people and pays out more than $350 billion in benefits to 42 million beneficiaries.

Aids and the Elderly

The April, 1994, issue of The Harvard Health Letter points out that even the elderly should be worried about AIDS. Men and women over age 50 account for 10% of all AIDS cases diagnosed each year. While AIDS cases diagnosed among the elderly a decade ago were almost all attributed to transfusions of contaminated blood or homosexual contact, HIV infection through heterosexual contact has been rising since 1986. Today, heterosexual transmission accounts for about 10% of new cases in the over-50 age group.

A recent survey published in The Archives of Internal Medicine reported that older citizens at risk of contracting AIDS were only one-sixth as likely to use condoms as the 20-year-old comparison group. They were only one-fifth as likely to be tested for HIV. The conclusion is obvious–older patients tend to ignore (or do not understand) the risk of AIDS.

The study’s principals, Ron Stall and Joe Catania, are behavioral epidemiologists at the University of California in San Francisco. For purposes of the study, they defined “at risk” older participants to include all those having multiple sex partners, sex partners with known HIV risk, or having received a blood transfusion between 1978 and 1984. Stall and Catania indicate that the results do not surprise them, especially since AIDS prevention messages are aimed almost exclusively at younger people.

Income Cap Trusts


Regular Elder Law Issues readers will recall that the federal government has finally provided some relief for nursing home patients who fail to qualify for ALTCS because they receive “too much” income. Under current eligibility rules, a patient with over $1338 in monthly income will not qualify for ALTCS assistance, even though the cost of care may exceed $2500 or even $3000 per month.

Last August Congress gave patients in the so-called “Utah Gap” the opportunity to assign their income to special trusts. These trusts (variously known as Income Cap Trusts, MillerTrusts or Qualified Income Trusts) had not previously been recognized in Arizona. Since the new legislation was adopted, Arizona officials had been unusually quiet about what specific terms might be deemed acceptable, leading critics to speculate that each trust would face legal challenges.

Now comes word from Phoenix that at least two Income Cap Trusts have been approved by ALTCS. Two more such trusts have been filed in Tucson, and the results are expected within the next few weeks. It may finally be possible to secure nursing home care for the “Utah Gap” patient.

©2021 Fleming & Curti, PLC