Public Health Law Map - Beta 5 - Medical and Public Health Law Site

the living will. The cardiopulmonary resuscitation (CPR) must be stopped at the
point that it is reasonably certain that the living will is authentic. Once a terminally
ill patient’s wishes are known, there is no justification for rendering unwanted
treatment.
Emergency room personnel should not circumvent living wills by demanding
unreasonable proof that the living will is valid. It must be remembered that the
burden is on medical personnel to disprove the will if it appears valid on its face. If
the will is not over a few years old, is clearly written, is signed and witnessed (many
states make notarization optional), and the identity of the patient is well known, the
living will is facially valid. Yet even if the will is valid, it is not an absolute bar to the
forbidden care. If there is a reasonable probability that CPR or other lifesaving care
will be successful, then it should not be withheld if there is an indication that the
patient would have wanted the care. For example, an elderly patient in currently good
health may have signed a living will out of fear of a lingering cancer death. This
patient might very well want to be given emergency treatment and CPR after an
automobile accident.
a) The Impact of Cruzan
The Cruzan decision disappointed those who had hoped that the Supreme Court
would find that families have a constitutional right to terminate a patient’s life
support. [AMA—Office of the General Counsel, Orentlicher D. The right to die
after Cruzan. JAMA. 1990;264:2444–2446.] The American Medical Association
has supported substituted decision making for termination of life support, both
because of concern with family suffering and because it is convenient for the
physicians. [AMA, Council on Ethical and Judicial Affairs, American Medical
Association. AMA ethical opinion 2.20: withholding or withdrawing life-
prolonging medical treatment. Curr Opin. 1989;13.] The dissent in Cruzan implied
that without substituted decision making, physicians would be forced to keep most
patients in critical care alive forever.
Would that we were so effective at keeping patients alive as the dissent in Cruzan
implies. The dissent in Cruzan profoundly misinterprets the nature of most
termination of life-support decisions. Cases like Nancy Cruzan’s are rare rather than
typical of termination of life-support situations. Most termination of life-support
decisions for incompetent patients are questions of a few hours or days of extra
care, not years or decades. Although not diminishing the familial suffering that can
be caused by unnecessary delays of even a few days in terminating life support, this
is not a problem that rises to constitutional significance.
The right-to-die debate blinds the public to the real crisis in intensive care: ensuring
that every person who might benefit from medical care receives that care. Peter
Medawar put it best:
The tenacity of our hold on life and the sheer strength of our preference for
being alive whenever it is an option is far better evidence of a life instinct
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