Posts Tagged ‘right to die’

CPR Efforts May Have Violated Nursing Home Rights Law

DECEMBER 22, 2003 VOLUME 11, NUMBER 25

Many of our clients have a visceral reaction to the idea that they might be “kept alive by machines” after they are no longer able to make health care decisions for themselves. That is why they sign “advance directives” like health care powers of attorney and living wills. The whole point of such documents is to convey the patient’s wishes about the type of treatment to be provided—or withheld.

Doris Lee had signed an advance directive before she was admitted to Riverview Care Center. The Louisiana woman had been very specific about what care she wanted. Her advance directive said, in part: “Do not use a respirator. Do not use dialysis. Do not use feeding tube. Do not use CPR.”

Late one night, aides at Riverview found Ms. Lee unresponsive and decided they needed help to revive her. They called 911, and emergency medical technicians responded. They did exactly what they are trained to do—they began CPR (cardiopulmonary resuscitation), administered chest compressions, placed a breathing tube and even a tube to deliver fluids. When Ms. Lee’s daughter arrived and demanded that the treatment be stopped, Ms. Lee was allowed to die without further intervention.

Ms. Lee’s daughters sued the nursing home for violating the instructions contained in Ms. Lee’s advance directives. The nursing home sought dismissal of the lawsuit, arguing that the question first had to be submitted to a medical review panel by state law.

The Louisiana Court of Appeals disagreed and ordered that the case proceed to trial. Ms. Lee’s daughters were not claiming medical malpractice, ruled the Court, but breach of contract and a violation of the Nursing Home Residents Bill of Rights. Terry v. Red River Center Corporation, December 10, 2003.

The significance of Ms. Lee’s case is subtle, but important. If her daughters’ claim was really a malpractice action, it would be judged by comparing the nursing home’s behavior to the prevailing standard of care among similar facilities. It would also be subject to special state procedural rules (similar to those adopted in Arizona) designed to make it harder for patients to successfully sue for malpractice.

If, however, the claim is based on contract principles or the rights contained in the Nursing Home Residents Bill of Rights, the questions become much simpler. Did the facility have a duty to follow Ms. Lee’s instructions? Did they know what those instructions were? And, finally, did they fail to honor her advance directives? Those are the questions to be posed at trial.

Developmentally Disabled Man Dies Before Court Decides His Fate

AUGUST 16, 1999 VOLUME 7, NUMBER 7

Though once viewed as slightly out of the mainstream of American thought, the “right-to-die” movement has become widely accepted today. Few would argue with the notion that a competent patient has the right to refuse life-sustaining treatment, even when the medical community collectively believes that the treatment should continue. Just this week, Rochester, New York, resident Bill White ordered that his ventilator be disconnected after 32 years; though officials were initially uncertain how to respond, after a quick legal review Mr. White was permitted to make the decision for himself. He died last Friday.

Mr. White was mentally competent at the time he made his decision. A more difficult question arises where the patient is not currently competent, but left an advance directive (a living will, or a health care power of attorney). Interpreting the directive, and trying to determine what the patient would have wanted in the present circumstance, can present legal, ethical and emotional challenges.

More difficult still is the dilemma posed by the patient who never was competent to express his or her wishes. In the case of a patient who has been developmentally disabled since birth, for example, should the fact of that disability compel a decision to aggressively treat every illness? Is it ever permissible to disconnect life-sustaining treatment from the never-competent patient? If so, how should the decision be made?

These are the questions that faced officials in the case of Matthew Woods. The 54-year-old Kentucky resident had a tested IQ of 71, and had resided in state facilities since age 18. His parents were deceased, and his two closest relatives were a brother and sister; his brother was not closely involved in his care and his sister resided in a Kentucky nursing home.

Mr. Woods was asthmatic, and was on his way to treatment at the University of Kentucky when he suffered a cardiopulmonary arrest in April, 1995. He suffered irreversible brain damage, and was in a permanently unconscious state, residing in another hospital.

Mr. Woods had never been able to tell anyone how he would want to be treated, and family was not available to help make the decision. Did that mean that he must be kept alive as long as possible on a mechanical ventilator?

The Kentucky court considering that question decided that it was permissible to withdraw the ventilator support, and Mr. Woods’ court-appointed guardian ad litem appealed. Ironically, Mr. Woods died (of “natural causes”) while the appeal was pending, but the Kentucky Court of Appeals nonetheless rendered its decision, finding that a guardian has the power to withdraw life-sustaining treatment even in the absence of any indication of the ward/patient’s actual wishes. Woods v. Commonwealth, July 30, 1999. The opinion was later withdrawn when the Kentucky Supreme Court accepted jurisdiction of the appeal. (Editor’s Note: the Kentucky Supreme Court did not rule until August, 2004. See Elder Law Issues for September 13, 2004, for an update.)

Arizona courts would reach the same result. In fact, the Kentucky case relies heavily on the logic of the leading Arizona case on this question, that of Tucsonan Mildred Rasmussen. Ms. Rasmussen was not developmentally disabled, but had never given any indication of her wishes regarding treatment. When she later was diagnosed as being in a persistent vegetative state, her guardian was authorized to withdraw the artificial tube feedings that kept her alive. Just as in the case of Matthew Woods, the final irony was that Mildred Rasmussen died while courts were still considering her legal fate.

Tucson Woman, Fed By Tubes, Kept Alive Despite Living Will

DECEMBER 16, 1996 VOLUME 4, NUMBER 24

“W.L.”, an 85-year-old Tucson woman, lives in her daughter’s home. She has been unable to speak coherently, or to communicate her wishes, since a massive stroke over two years ago.

Less than a year before her stroke, W.L. signed a Living Will (and a Health Care Proxy) in another state. Her Living Will provides that:

If the situation should arise in which I should have an incurable or irreversible condition that is likely to cause my death within a relatively short time, or if I should be permanently unconscious or in a permanent vegetative state, I direct that I be allowed to die and not be subjected to or continue to be kept alive by medication, medial procedures interventions or artificial means of any kind, including artificial nutrition and hydration.

Since shortly after her stroke, W.L. has received both nutrition and hydration through a gastrointestinal tube, which is permanently inserted directly into her stomach. She is mobile and in excellent health; the care she receives in her daughter’s home is exceptional and her health care professionals agree that she can be maintained in her current circumstance for a considerable time.

Last year, in connection with unrelated court proceedings, an attorney was appointed to represent W.L.’s interests. Her attorney questioned whether W.L. should be receiving artificial feedings, given the language of her Living Will. He brought a new court proceeding, asking the judge to authorize the removal of the tube.

W.L.’s medical providers objected, indicating that because of her excellent care, the quality of her life and the slight inconvenience associated with her gastrointestinal tube, it would be wrong to remove the tube at this point. Her family concurred, arguing forcefully that they felt that her quality of life is excellent and that she knows and is interested in family members. Family members also noted that W.L. had suffered another stroke seven years earlier, and had accepted tube feedings and substantially recovered from the first stroke; they argued that administration of tube feedings was consistent with W.L.’s previous practice.

After legal arguments, Pima County Superior Court Judge William Sherrill ruled that W.L.’s feeding tube should not be removed. He noted that there is some ambiguity in W.L.’s Living Will (it indicates that her agent under the Health Care Proxy may have the final decision as to withholding life-sustaining treatment), that there are questions about her understanding of the terms of the Living Will when she signed it, and that her present condition may not be one which would “cause her death.” Finally, according to Judge Sherrill, no decision to remove a feeding tube (particularly over the objections of both family and treatment team) should be made unless the evidence of the patient’s wishes is “clear and convincing.”

Assuming that a patient wishes to avoid W.L.’s current situation, what might she do? Two items would help ensure that strongly-held opinions are honored:

  • Clear expressions of the patient’s wishes. W.L. relied on pre-printed forms (although they were filled out by her attorney and executed in his office). Unfortunately, they did not speak in her own voice, and did not tell the reader which issues were more important to her.
  • Full discussion with family. At least some of W.L.’s family was surprised to learn of her Living Will, and first saw it after the decision to place the feeding tube had been made. If they had been aware of her wishes earlier, they might have acted differently.

Of course, Judge Sherrill’s decision might well have been exactly what W.L. wanted. Unfortunately, her ambiguous Living Will prevents us from ever knowing for certain.

Will Your End-of-Life Health Care Wishes Be Honored?

JUNE 23, 1996 VOLUME 3, NUMBER 52

While advance medical directives are increasingly common, disturbing studies suggest that they are too frequently ignored. The recent SUPPORT study, funded by the Robert Wood Johnson Foundation and reported on in Elder Law Issues last December 11, illustrates the problem. It found that doctors are likely to follow the written wishes of patients only about half the time.

While the conclusions of that study may be unnecessarily pessimistic, patients have legitimate concerns about how to maximize the likelihood their wishes will be carried out. A few suggestions for patients:

  • Execute both a living will and a health care power of attorney. The former sets out what health care choices you want, the latter permits someone to advocate on your behalf, sign releases and discuss issues with your medical treatment team.
  • Select your health care agent carefully. Rather than naming all your children (honest, they won’t be offended if you select one), or the one closest geographically (the daughter who lives in town may or may not be the best equipped to argue with doctors and health care administrators), choose the most articulate and like-minded candidate. While geographical proximity is a plus, assertive and well-informed advocacy is more important.
  • Discuss the issues with your family. No matter how well you have written your directives, they are worthless if your children do not believe you really meant them. Make it clear that you are not asking that they “put you to sleep” but that you are demanding the right to die with dignity.
  • Discuss the issues with your physician. If she has not heard your views from you, she is more likely to question whether your agent truly speaks for you.
  • Be specific. The more detail you put into your living will, and the more you customize its language, the more likely your wishes will be followed.
  • Consider pain management issues (thorough pain management may hasten death in some cases, and if pain control is important you should say so) and organ donation (advance directives may actually make organ harvesting more difficult).

Medicare HMOs Provide Less Home Care

Medicare participants who choose to enroll in HMOs receive fewer home health care visits than fee-for-service Medicare recipients. That is the conclusion of research completed at the behest of the Health Care Financing Administration and the Agency for Health Care Policy and Research.

The study examined 1,260 Medicare patients nationwide, and compared both health improvement and costs for those participants. Researchers tried to determine whether those studied benefited from home health care by determining whether they were better able to perform basic activities of daily living (ADLs) such as eating and bathing.

According to the researchers, 56.5% of the fee-for-service beneficiaries had improved ADLs as a result of home health care. Among HMO participants, 43.4% showed similar improvement. While HMO-provided home health care may have been less expensive to the Medicare system, the study demonstrated that the savings may have come partially at the expense of better outcomes for patients.

Medicare recipients (whether enrolled in HMOs or in traditional fee-for-service plans) are entitled to home health care benefits in some circumstances. Such services may include skilled nursing care, physical, speech and occupational therapy, and other services.

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.

Oregon’s “Death With Dignity” Act Stricken By Federal

AUGUST 28, 1995 VOLUME 3, NUMBER 9

Last November, Oregon voters approved a ballot initiative called the “Oregon Death With Dignity Act.” This first-of-its-kind legislation created a right to physician-assisted suicide in narrowly proscribed circumstances. Predictably, opponents filed suit claiming the Act violates the U.S. Constitution.

Earlier this month a U.S. District Court Judge in Oregon sided with opponents of the Death With Dignity Act. In a nine-page opinion, Judge Hogan ruled that the Act violates the Fourteenth Amendment by denying equal protection of the laws to terminally ill patients who may also be depressed.

Oregon’s law provided a mechanism for securing physician assistance with suicide only when the patient:

  • is terminally ill,
  • initiates the discussion about suicide,
  • waits at least fifteen days, and
  • is examined by another physician on referral by the attending physician.

Judge Hogan’s opinion striking down the Oregon law makes the point that a clinically depressed patient who attempts suicide normally will come under the purview of the state’s civil commitment laws. Under those laws (essentially similar to Arizona’s), the patient would be evaluated by two independent and qualified physicians. If the patient’s suicidal actions appeared to be the result of a mental disorder (including but not limited to depression), the state would intervene and protect the patient from harm, even though the patient may not choose to be so protected.

Under the Death With Dignity Act, however, the determination whether the patient’s wish to die is the product of mental disorder is made by the attending physician and another chosen by the attending physician. This, says Judge Hogan, means that the terminally ill and suicidal patient is not adequately protected from the possibility that he or she might be mentally ill. This is true, according to the Court, because the examination is undertaken by:

  1. One physician and his or her choice of consulting doctor,
  2. Neither of whom is required to be a psychiatrist or trained in dealing with mental illness.

Thus, according to the Federal Court opinion, Oregon’s Death With Dignity Act fails to provide adequate protection for those who are both terminally ill and mentally ill. Consequently, the Act must fail.

The result of this decision is a legal anomaly. In Oregon, where voters adopted a Death With Dignity Act, physician-assisted suicide is not available because of Judge Hogan’s ruling. In Washington state, however, where voters rejected a nearly-identical Death With Dignity Act, another Federal Court ruling has found that physician-assisted suicide must be made available to the same patients.

Stay tuned for further legal developments.

Euthanasia Down Under

MAY 29, 1995 VOLUME 2, NUMBER 47

What state legislative body is the first to adopt a formal mechanism for permitting physicians to participate in the suicide of terminally ill patients? If you answered Washington or Oregon, you are wrong. If you broadened the definition of “state” and answered The Netherlands, you are still wrong.

Last week The Northern Territory, Australia (Capital: Darwin), by a 15-10 vote, became the first state with a legislatively-adopted provision which permits voluntary euthanasia. The new law is effective only when the following circumstances are met:

  • the patient must be over age 18, competent and suffering from extreme pain for which no further pain control measures are available.
  • the patient must initiate the request, and then wait seven days.
  • two doctors (one of whom must have psychiatric credentials) with at least five years experience each must certify that the patient is terminally ill and beyond medical help.
  • the doctors may not be related to one another by blood or business dealings.
  • both doctors must agree that the patient is not clinically depressed, and that he knows the effect of his decision on his family.

The new law does not specify the method of euthanasia which may be employed, but provides for adoption of regulations governing such questions.

Technically, the national government of Australia has the power to disallow the Northern Territory’s new law. Although the power is part of Australia’s constitutional framework, it has never been exercised before and observers do not expect it to be utilized in this case.

Although “physician-assisted suicide” has been adopted in Oregon, it was done by a voter referendum. Washington State’s year-old law was based on a federal court case declaring the prohibition of physician-assisted suicide to be unconstitutional. In The Netherlands euthanasia remains technically illegal, but the prosecutor’s office has adopted guidelines under which no prosecution will be mounted.

Elderly Living Alone

Elderly Americans are increasingly likely to be living alone, according to a newly-released survey. While 7.3% of seniors lived alone in 1960, over 30% were doing so by the late 1980s.

At least part of this growth phenomenon has been attributed to increasing divorce rates. Still, the largest force in the growth of the elderly living alone is the fact that women outlive their spouses by an average of nearly 7 years, coupled with the aging of the population.

Analysts predict that this continuing trend should result in dramatic increases in demand for assisted-living and home-based services.

Five More Myths About Advance Directives

JANUARY 23, 1995 VOLUME 2, NUMBER 29

I must use a prescribed advance directive form for my state.

In most states (including Arizona) you do not have to us a specific form. Arizona does provide a form to make it easy to prepare a living will and/or a health care power of attorney, but use of that form is not mandatory. Indeed, any form can and should be personalized to reflect the individual’s particular values, priorities and wishes. If you do not agree with the language of the form, change the form.

I need a lawyer to do an advance directive.

While a lawyer may be a helpful resource (but not the only resource, or even the best resource), a lawyer should required. Advance directives are not difficult to complete.

Doctors and other providers are not legally obligated to follow my advance directive.

Medical providers can not treat an individual against his wishes. Consequently, if a physician acts contrary to a patient’s clear instruction (including by living will or by the patient’s health care agent) to the contrary, the physician risks the same liability she would face in treating a fully competent patient. Of course, the physician must know about the advance directive, and it is up to the patient (and his agent) to get copies into the medical record.

The rules may be different for paramedics and emergency room staff. They may be governed by a “prehospital medical care directive.”

If I do not have an advance directive, I can rely on my family to make all my decisions when I am unable.

In Arizona your spouse, then your parents, and then your children, can make most medical decisions even if you do not execute an advance directive. But they can not authorize the removal of feeding tubes or artificially-supplied water, and the agent designated by the statutes may not be your first choice in any event.

Advance directives are for old people.

This is not an issue just for “old people.” Remember that the best-known “right to die” cases involved Nancy Cruzan and Karen Ann Quinlan, both young women in their 20s. The stakes are actually higher for younger persons in that, if tragedy strikes, they might be kept alive for decades in a condition they would not want. An advance directive is an important legal planning tool for all adults.

Standards for Adult Day Care Centers

JANUARY 10, 1994 VOLUME 1, NUMBER 8

From The Wall Street Journal, January 6, 1994

“An adult day-care boom propels a move to set up a national accrediting system.”

Adult day-care centers have multiplied tenfold since the mid-1980s to an estimated 3,000 nationwide, and the trend is expected to continue as more parents of employed baby boomers reach ages at which they need daytime care. Many employers have begun providing referrals to adult day care and other services to aid the estimated 20% of workers who care for aging relatives

But only about half the states regulate adult day-care centers, and quality is uneven. Facilities range from high-quality centers offering health care and educational, exercise, cultural and social programs, to warehouses where aged and emotionally ill people are thrown together to spend most of their days watching television.

Now, the National Council on Aging, with partial funding from American Telephone and Telegraph and two of its unions, has begun setting up an accreditation program to encourage centers to upgrade quality and help consumers find high-quality care.

The council is training aides at adult day-care centers in five states and urging state organizations of center directors to embrace uniform quality standards, says Donna L. Wagner, the council’s vice president, programs. By 1996, the National Institute on Adult Day Care, a council unit, plans to endorse centers based on quality of programs and staff.”

Guardianship and Divorce

It occasionally happens that an incapacitated person needs to be divorced from his or her spouse. This may be because the spouse is abusive, because benefits have been reduced or because the spouse refuses to cooperate in applying for benefits, for instance. Until recently, it was not clear what steps could be taken to secure a divorce in such cases.

In the recent case of Ruvalcaba v. Ruvalcaba (174 Arizona 436, 1993), the Arizona Court of Appeals addressed this question. Mrs. Ruvalcaba’s mother became her guardian after she suffered a serious head injury and entered a coma. Mrs. Ruvalcaba ultimately recovered from her coma, but continued to suffer from amnesia and remained unable to make her own medical decisions or living arrangements.

Mrs. Ruvalcaba’s mother, fearing that her daughter’s husband would become abusive, determined that it would be in her ward’s best interest to pursue a divorce. She initiated the proceedings on her daughter’s behalf. Her daughter’s husband objected, alleging that the power to start a divorce is too personal to be delegated to a guardian. The Court of Appeals disagreed, and held that a guardian may pursue a divorce on her ward’s behalf. The Court cited Rasmussen v. Fleming, the Arizona “right-to-die” case, to show that very personal rights may be exercised by a guardian.

The guardian also sought custody of the couple’s minor children for her incapacitated daughter. The Court permitted this, indicating that the best interests of the children might be served by leaving them with their mother (and grandmother)!

The Cost of Dying

JANUARY 3, 1994 VOLUME 1, NUMBER 7

In 1986, New Yorker Jean Elbaum was admitted to the nursing home in a persistent vegetative state. Her husband vigorously objected to the provision of food and fluid by a feeding tube, and warned the nursing home that he would not pay for treatment he did not approve and his wife would not have wanted.

After court proceedings to determine what Mrs. Elbaum’s wishes might have been in such circumstances, Mr. Elbaum was permitted to move his wife to a hospice, where tubes were removed and Mrs. Elbaum died peacefully in 1989.

the original nursing home brought suit against Mr. Elbaum to recover the $100,000 cost of providing care for three years. Mr. Elbaum argued that the care was not authorized, and that he had no obligation to pay for unwanted treatment. the New York Court of Appeals (the highest appellate court in New York) has now ruled that Mr. Elbaum must pay the cost of care. The Court noted that Mr. Elbaum had signed admission documents promising to pay for his wife’s care (without indicating any limitations), and that the nursing home acted properly when it insisted on a Court determination of Mrs. Elbaum’s wishes. Since Mrs. Elbaum had never executed a Living Will or a Durable Power of Attorney, it was impossible to determine with certainty what her wishes would have been without Court involvement.

While it relies on New York law (which is much more restrictive than Arizona law in “right-to-die” matters), the Elbaum case serves as a potent reminder of the need for advance planning and execution of documents.

Perceptions of Aging

According to a national opinion poll conducted by Parade magazine and reported in its December 12, 1993, issue, older Americans have “fewer fears and less negative view of aging” than their younger counterparts. When asked for their greatest fears about aging, 35% identify potential illness and failing health, 31% cited inability to care for themselves, and 20% worried about running out of money.

HMO Liability

Californian Nelene Fox believed that her health maintenance organization should pay for bone-marrow transplant surgery to treat her breast cancer. Her HMO argued that such treatment was experimental, at least when applied to conditions such as Ms. Fox’s, and refused to provide coverage. Ms. Fox brought suit against her HMO.

Two weeks ago (and eight months after Ms. Fox’s death) a jury awarded her estate and survivors more than $12 million in damages. The trial featured, among other items of evidence, testimony that the HMO executive who made the decision to refuse coverage was compensated partly on the basis of how much money he saved the HMO.

The $12 million verdict does not include punitive damages which were tried separately.

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