Working Indiana - Working for Democracy and Justice

In 1973 Donald “Dax” Cowart lay stunned and inert, near death and burned over 75% of his body, begging a good Samaritan for a gun because, as he said, he was already a “dead man.”  For the following fourteen months Dax was forcibly treated against his will, his exquisite pain inadequately controlled and exacerbated by multiple debridements which he recalled thirty years later as being “skinned alive.”  Dax survived his injuries—and his own requests for permission to die—and became a lawyer—perhaps a worst case outcome.  He can be seen relating his ordeal at UVA’s website:http://www.researchchannel.org/asx/uva_news_dax_1300k.asx.  Now, nearly all states provide a legal means to achieve Dax’ wish to be granted a natural death and Federal law requires hospitals to inform patients of patient alternatives.  Indiana law offers a choice between a “living will” and “a life prolonging procedures declaration.”  Since the Cruzan case, the Supreme Court has recognized a competent patient’s protected right to refuse lifesaving hydration and nutrition. 

In the face of imminent death a properly drafted “living will” should allow Indiana patients the choice of limiting care to palliative treatment and refusal of nutrition and hydration or to defer the choice to a health care representative.  The proper form may be found in the Indiana Code at 16-36-4-10.  This form of advance directive requires a number of somewhat ambiguous events to occur on or about the same time: the attending physician must certify in writing that (1) the disease, injury or illness is “incurable,” (2) that death will occur in a “short time,” and (3) the use of “life prolonging” procedures would only “artificially” prolong the dying process.  Were Dax’ painful debridements “only” going to prolong the dying process if, for example he faced one or more immanent crises during treatment?  Is being nearly incinerated even a species of “incurable” injury if the patient may, as Dax did, recover sufficient function to graduate from law school?  Not surprisingly, these ambiguities, interpreted by men and women who, by training, seek to cure infirmity give rise to problems in day to day application.

At the other extreme an Indiana “life prolonging procedures declaration” permits a patient to consent, in advance, to an “all codes,” assuring that he or she will be sustained to the point of nearly absolute futility.  Indiana also permits patients to arrange for an out of hospital “do not resuscitate” order assuring a “natural” death in the event of cardiac or pulmonary failure away from a hospital.

 A year ago, a Palm Beach Florida jury returned a $150,000 verdict against a nursing home for violating an Alzheimer’s patients wishes to be permitted a natural death.  Surprisingly, though, courts have sometimes recognized the right of a healthcare facility to refuse to honor a living will where it does not satisfy formal, legal requirements. In Haymes v Brookdale Hospital Medical Center 287 A.D.2d 486 (2001) the court threw out a complaint filed by the sister of an attempted suicide victim for just such a reason.  More often, though, living wills fail to achieve their end.

Even where a living will is properly drafted and duly executed, it may fail to safeguard a patient’s constitutionally protected right to a natural death.  A recent study conducted by the University of Michigan concluded that living wills failed because, among other things, people are generally unable to know and express their future health care desires (only 18 percent of Americans have living wills) and because physicians are slow to conclude that patients are irreversibly or terminally ill. “Living wills typically operate when patients become terminally ill, but neither doctors nor families lightly conclude patients are dying, especially when that means ending treatment.  And understandably. For instance, on the day before death, the median prognosis for patients with heart failure is still a 50% chance to live 6 more months because patients with heart failure typically die quickly from an unpredictable complication like arrhythmia or infection. So by the time doctors and families finally conclude the patient is dying, the patient’s condition is already so dire that treatment looks pointless quite apart from any living will (Angela Fagerlin and Carl E. Schneider, Enough: the failure of the living will, Hastings Center report March – April 2004) retrievable at http://www.thehastingscenter.org/pdf/publications/hcr_mar_apr_2004_enoug....

Incompetent patients entering the healthcare system without a living will or, worse, who have signed advance directives requesting all procedures may fare even worse even when these are out of date or executed at a time when the patient was without knowledge of his/her current quality of life and prospects for recovery. Indiana law does provide a means for securing “consent” from patients who, because of disease, illness, or lack of mental capacity are incapable of expressing their wishes.  Indiana law allows a competent patient to countermand advance directives.

Generally, an Indiana “healthcare Guardian” may be appointed for a short term and is permitted by law to substitute his or her judgment on behalf of an incompetent patient. However, if that patient has expressed a desire -- -- no matter how remotely in the past-- -- to be afforded extraordinary measures even in the face of a terminal illness a guardian’s instructions to the contrary may fall on deaf ears.

Because of the inherent ambiguities in advanced directives (remember, they are “activated” only when the attending physician certifies in writing that the condition is incurable, death is near and life prolonging procedures would only prolong the dying process) the ABA Commission on Legal Problems of the Elderly recommends combining a Health Care Power of Attorney with advanced directives in a single document.  In that way, patients who slip into legal incompetency can name the person who interprets their wishes ahead of time.