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state and the decision to withdraw or withhold life support. JAMA. 1990;263:426–
430.] A definition of death that includes Nancy Cruzan is more practical and
ethically defensible than a definition of life that abets the denial of care to
potentially salvageable patients.
3. Living with Cruzan
The Cruzan ruling is intrinsically limited because it is only permissive. It upholds
Missouri’s law that prohibits guardians from authorizing the termination of life
support for their wards but does not prevent Missouri or other states from allowing
guardians such authority. (Missouri subsequently passed a comprehensive “living
will” law.) It upholds Missouri’s right to require a patient’s intentions to be proved by
clear and convincing evidence but does not prevent states from using less rigorous
criteria to determine a patient’s wishes.
Justice Rehnquist, in a rare example of preventive law advice from the bench,
stressed the importance of using living wills and durable powers of attorney. Since
these were not at issue in the case, this advice is not law, but it is a useful prediction
of the court’s future direction.
Medical care providers in states such as Missouri should note that the majority
opinion, and Justice Sandra Day O’Connor’s concurring opinion, imply that the state
may be bound to follow the requests of a patient-appointed surrogate. This would
give a surrogate appointed by a patient’s durable power of attorney more authority
than a guardian appointed under restrictive state guardianship laws. [Mishkin DB.
You don’t need a judge to terminate treatment. J Intensive Care Med. 1990;5:5201–
5204.]
It is critical to appreciate that the public debate over termination of life support is
driven in part by a desire not to waste medical care on patients who will not benefit
from it. The problem is determining just who these patients are. Nancy Cruzan
clearly does not benefit (in the sense of improved prognosis) from her medical care.
Yet there are thousands of close calls for everyone in a similar condition. Given the
enormous pressure by medical insurers and the federal government on physicians’
and patients’ families to terminate medical care, relaxed rules for substituted consent
may not be the best solution to the problems of those in Cruzan’s condition.
a) Formalizing the Patient’s Wishes
Every person, and especially every patient, should consider some formal provision
for decision making should he or she become incompetent. The implication of the
Cruzan decision is that a durable power of attorney may be the strongest legal
provision. There are other benefits to using a durable power of attorney rather than
a living will. [Orentlicher D. Advance medical directives. JAMA. 1990;263:2365.]
Physicians do not like to discuss living wills with patients because it makes the
patient face the issue of death. Living wills are also troublesome because they must
anticipate future circumstances. Conversely, a durable power of attorney may be
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