August 2, 2009

Advance Health Care Directive (living will)

The name Terri Schiavo invokes a visceral reaction for many Americans. In 1990, Terri Schiavo, then 26 years old, suffered a cardiac arrest that deprived her brain of oxygen for 5 minutes before being resuscitated. The consequential brain damage left Terri in a persistent vegetative state ("PVS"), unable to move, communicate, swallow, feed herself, make choices, think, or feel pain or emotion. She failed to regain consciousness for the rest of her life. Experimental surgery and several years of therapy produced no recovery signs.

During Schiavo's unconsciousness, her fate was the source of seemingly endless, contentious, lengthy and expensive litigation, pitting Terri' husband against Terri's family. Ultimately Terri' husband prevailed, after 7 years of litigation, and Terri's feeding tube was removed by court order for the third and final time on March 18, 2005, and she died on March 31, 2005. An autopsy revealed that no treatment could have reversed the brain damage. Goodnough, Schiavo Autopsy Says Brain, Withered, Was Untreatable, New York Times, June 15, 2005, p A1, col 1.

A California version of Terri Schiavo involved Robert Wendland. Conservatorship of Wendland (2001) 26 C4th 519. In 1993, Robert Wendland, 42 was seriously injured in an automobile accident. Emerging from a coma, paralyzed and brain-damaged, he lived on a feeding tube for 2 years before his wife of 15 years, Rose Wendland, requested permission from California courts to be named his conservator (think parent) and to remove his feeding tube. Robert's physicians indicated that he would likely never recover significantly and that he failed to interact with his environment or attempt to communicate with his family and caregivers. Rose Wendland testified that he had told her before the accident that he would never want to live in a state in which he was completely dependent on others for his care. Before involving the courts, Rose Wendland had submitted the case to the ethics committee of Lodi Memorial Hospital West. This ethics committee voted unanimously that Robert Wendland should be allowed to die.

However, Wendland's mother and sister objected to Rose Wendland's petition and argued that Wendland should be kept alive. Ultimately, the California Supreme Court ruled that the conservator, Rose, needed to show clear and convincing evidence in order to remove the feeding tube, which she could not do. Although, Robert died while the case under submission.

Finally, the most famous end-of-life United States Supreme Court case, Cruzan v Missouri Dep't of Health (1990) 497 US 261, involved a then 25 year old automobile accident victim. The resulting injury left Nancy Cruzan in a PVS as well. The accident occurred on January 11, 1983. The Supreme Court case was not decided until June 25, 1990. Later on, Cruzan's feeding tubes were removed on December 15, 1990 and died 11 days later.

These cases illustrate that end of life decision are not exclusive to the mature community and can drag on for years if not properly anticipated. In response, Californians typically draft an Advance Health Care Directive to prepare for such a situation. The document can spell out what end of life procedures the drafter wants done, (i.e. pull the plug) and can also nominate an agent to make health care decisions on the drafter's behalf should the drafter become incapacitated like Terri Schiavo or Nancy Cruzan. It is a painful but necessary decision to draft an Advance Health Care Directive (known as a living will in some jurisdictions) because the consequences of not drafting are very steep. Furthermore, it is very straight-forward to draft one. Most, if not all people, want to die with some dignity, and an Advance Health Care Directive is the optimum instrument to effectuate that sentiment.