Presented by Thomas J. Murphy
July 26, 2007
What is a living will?
Most living wills that I have seen appoint an agent to carry out the patient’s desires regarding end-of-life decisions. The patient decides and the agent implements that decision. It is a question of what the patient chooses (ie, substituted judgment) and not what the agent thinks is in the best interests of the patient.
Having a living will would not have avoided the ugly fight.
The Schiavo case points out two problem areas with most living wills. Living wills will usually only apply to the terminally ill, most often defined as unavoidable death within six months. The problem was that is was undisputed that Terry Schiavo was not terminally ill. The second problem involves implementing the patient’s desires. The Schiavo fight was a dispute over what those intentions were. Living wills will need to be re-drafted to include more specificity.
Make your intentions known.
Michael and Terry Schiavo lived with her parents during the first year of their marriage yet the end of life issue was never discussed.
Withholding life support is not an uncommon event.
According to the Chairman of the President’s Council on Bioethics, each year there are approximately 1.75 million deaths that occur in healthcare facilities. Of these, 1.5 million deaths (85%) are preceded by an explicit decision to stop or not start medical treatment. It is variously estimated that the number of patients in a persistent vegetative state (ie, where the cerebral cortex is irrevocably injured) ranges between 20,000 to 35,000. There is an additional 150,000 patients in a minimally conscious state, in which there is some minimal interaction with the environment.
End of life issues are not only for the elderly.
Both Terry Schiavo and Nancy Cruzan were in their 20’s when tragedy struck
Florida law was clear.
Florida has a surrogate decision making statute that is very similar to Arizona’s. ARS 36-3231. Both statutes name the spouse before the parents. This is also in keeping with our clients who invariably name the spouse before the parents when determining priority of appointment. The statutory order of priority in Arizona is 1) spouse, 2) adult child, 3) parent, 4) “domestic partner”, 5) brother or sister and 6) “close friend”.
A paradigm shift.
Until the 1990 Cruzan case, the medical community was steadfast in opposing the withdrawal of life support. Yet, only 15 years later, the medical community seemed to be quite united in approving the withdrawal. For an excellent book on the Cruzan case, read “The Long Goodbye: The Deaths of Nancy Cruzan” by William Colby. For a very informative panel discussion that included Mr Colby, obtain a videotape of last year’s MCBA seminar on end-of-life issues, available from the MCBA (contact Geoff Cummings of the MCBA, 602-257-4200 or email@example.com).
An eating disorder may have caused this whole controversy over artificial nutrition and hydration.
Terry Schiavo weighed 250 lbs at age 18. She weighed 110 when tragedy struck, apparently due to a severe electrolyte imbalance.
The Schiavo fight started over money.
For the first five years after Terri’s heart attack, the husband and parents were in agreement. But then a $1M malpractice verdict was obtained. $300,000 went to Michael Schiavo and $700,000 went to a special needs trust created for Terri’s benefit. There are differing stories as to what happened next. Some sources say the Schindlers wanted half of Michael’s recovery. Other sources say it was a dispute over how the $700,000 was to be spent.