End Of Life

END OF LIFE ISSUES
FROM A LEGAL AND
BIOETHICS
PERSPECTIVE
PAUL D. FRIEDMAN, M.A., J.D.
300 W. Clarendon, Ste. 400
Phoenix, Arizona 85013
(602) 252-8888
bioethics@cox.net ©Copyright 2005
Paul D. Friedman, M.A., J.D.
American Association
of Critical-Care Nurses

OVERVIEW OF DYING IN
AMERICA
©Copyright 2005
Life-Ending Acts:
Refusal of Life Support
Physician-Assisted Suicide
Euthanasia
Refusal of Hydration & Nutrition
Palliative Care

STATISTICS ON DYING
IN AMERICA
©Copyright 2005
2.5 Million Americans Died In 2005
More Americans Died From Chronic Illness
Than Any Other Cause
Heart Disease
Cancer
Stroke
Emphysema
Dementia
Mean Life Expectancy >50% In Past Century
54+% Die In Hospitals
19+% Die In Nursing Homes
25+% Die At Home

STATISTICS ON DYING
IN AMERICA
©Copyright 2005
30% Of Medicare Expenditures Is Spent For
Caring For Patients In The Final 6 Months Of
Life
40% Of That 30% Covers Care For Patients In The
Last Month Of Life
Up To 65% Of ICU Deaths Directly Result From
Withdrawal Of Life Support Treatment
Some Life-Sustaining Treatment Is Withdrawn
In 74% Of ICU Deaths

AMERICAN ATTITUDES
REGARDING DYING
©Copyright 2005
Medicine Is Based Upon A Scientific Paradigm
Technology Is Imperative To Decrease Morbidity and
Increase Mortality
We Culturally Deny Death
Denial Is Recognized As The First Of The 5 Stages Of
Death
Denial
Anger
Bargaining
Depression
Acceptance
It Has Become Socially More Acceptable To Die
In An Institution Than At Home

AUTONOMY
©Copyright 2005
Ethical Principles Support Autonomy (Dignity,
Respect, Self-Determination)
Autonomy
Beneficence
Non-Maleficence
Justice
Legal Concepts Support Autonomy
Informed Consent
Canterbury v. Spence, 464 F.2d 772 (D.C. 1972).
Confidentiality
HIPAA

AUTONOMY
©Copyright 2005
Canterbury v. Spence, 464 F.2d 772 (D.C. 1972).
19 Year Old Patient Submitted To Back Surgery Due To
Severe Pain After Conservative Treatment
Physician Recommended A Laminectomy For A Suspected
Ruptured Disc
The Day After Surgery, The Patient Fell While Trying To
Void And Was Left A Paraplegic
Court Of Appeals Held That The Physician Owed A Duty To
Obtain Informed Consent
“Every human being of adult years and sound mind has a right to
determine what shall be done with his own body” p. 779
“True concept to what happens to one’s self is the informed
exercise of a choice, and that entails an opportunity to evaluate
knowledgeably the options available and the risks attendant upon
each” p. 779

REFUSAL OF LIFE-
SUSTAINING TREATMENT
©Copyright 2005
Preferential Status Of Consent:
Expressed Wishes Of Patient
Advanced Directives
Living Will
http://www.azag.gov/seniors/life_care/LivingWill.pdf
Durable Healthcare Power Of Attorney
http://www.azag.gov/seniors/life_care/POA_HealthCare.pdf
Pre-Hospital Medical Directive (“DNR”)
http://www.azag.gov/seniors/life_care/DNR.pdf
Durable Mental Healthcare Power Of Attorney
http://www.azag.gov/seniors/life_care/POA_MentalHealthCare.pdf
Substituted Judgment
Best Interests Of The Patient

©Copyright 2005
Living
Will
Page 1

©Copyright 2005
Living
Will
Page 2

©Copyright 2005
Durable
Health
Care
Power of
Attorney
Page 1

©Copyright 2005
Durable
Health
Care
Power of
Attorney
Page 2

©Copyright 2005
Durable
Health
Care
Power of
Attorney
Page 3

©Copyright 2005
Durable
Health
Care
Power of
Attorney
Page 4

©Copyright 2005
DNR

ETHICAL IMPLICATIONS OF
REFUSAL OF LIFE-
©Copyright 2005
Is There A Difference Between Withholding Or
Withdrawing Treatment?
There Is Ethical Equality to Have An Act Of Omission
versus an Act of Commission
Can A Patient Refuse Hydration And Nutrition?
A Patient Has A Right To Refuse Hydration And
Nutrition
Living Will
Constitutional Right To Refuse Life-Sustaining Treatment
Cruzan v. Missouri Department of Health, 497 U.S. 261, 110
S.Ct. 2841 (1990).

CONSTITUTIONAL RIGHT TO REFUSE
LIFE-SUSTAINING TREATMENT
©Copyright 2005
Cruzan v. Missouri Department of Health
Nancy Cruzan Sustained Severe Injuries In An Automobile
Accident And “Lived” In A Persistent Vegetative State
Nancy Cruzan’s Parents Sought Termination Of Nutrition
And Hydration
Nancy Cruzan Told Her Roommate That She Would Not
Want Nutrition And Hydration If She Was Less Than Halfway
Normal
The United States Supreme Court Held A Patient Has A
Constitutional Right To Refuse Life-Sustaining Treatment
“A competent person has a liberty interest under the Due Process
Clause in refusing unwanted medical treatment.” p. 262
The State May Require Clear And Convincing Evidence Of
“Substituted Judgment”. p. 263

SURROGATE’S RIGHT TO
REFUSE LIFE-SUSTAINING
TREATMENT
©Copyright 2005
Can A Surrogate Refuse Or Withdraw Life-
Sustaining Treatment Utilizing “Best Interests”?
In Re Quinlan, 70 N.J. 10, 325 A.2d 647 (1976).
Karen Ann Quinlan Was A 22 Year Old Who Suffered Anoxia
For At Least Two 15 Minute Periods
She Was Found To Be Comatose With Decortification
She Was Placed On A Respirator
Her Father Sought To Take Her Off The Respirator
Her Treating Physicians Argued The Standard Of Care Was To
Keep Her On The Respirator
The New Jersey Supreme Court determined That Life-
Sustaining Treatment Could Be Refused If It Was In The “Best
Interest” Of The Patient. ps. 41-42

SURROGATE’S RIGHT TO
REFUSE LIFE-SUSTAINING
TREATMENT
©Copyright 2005
Can A Surrogate Refuse Or Withdraw Life-
Sustaining Treatment Utilizing “Substituted
Judgment” Or “Best Interests”?
A.R.S. § 36-3231

©Copyright 2005
A.R.S. §
36-3231

A CONTEMPORARY ETHICAL
DILEMNA RE: REFUSAL OF
©Copyright 2005
THERESA SCHIAVO

©Copyright 2005
THERESA SCHIAVO
12/03/63 Terri Schindler (Schiavo) was born
11/10/84 Terry Schiavo married Michael Schiavo
02/25/90 Terry Schiavo suffered a cardiac arrest
involving brain damage from anoxia
06/18/90 Court appointed Michael Schiavo as the
Terri’s Guardian without objection from
the Schindlers

DILEMNA RE: REFUSAL OF LIFE-
©Copyright 2005
THERESA SCHIAVO (continued)
08/92 Terri Schiavo received $250,000 in an
out-of-court settlement with a physician for
alleged malpractice
Does not take into account attorneys’ fees and
costs
11/02 A jury returned a verdict in excess of
$1,000,000
After attorneys’ fees and costs, a trust fund is set
up with $750,000 for medical care
Michael Schiavo receives $300,000 for loss of
consortium

©Copyright 2005
02/93 Michael Schiavo and the Schindlers had a
falling out over the course of therapy
07/93 Schindlers attempted to have Michael
Schiavo removed as Terri’s Guardian
03/94 Guardian Ad Litem reports that Michael
Schiavo had acted appropriately

©Copyright 2005
05/98 Michael Schiavo filed a petition with the Court to
have the PEG tube removed
Schindlers opposed the petition
Court appointed a second Guardian Ad Litem
12/98 Second Guardian Ad Litem files his report
Found Terri was in a persistent vegetative state
Questioned the motivation of Michael Schiavo as someone
who would inherent the res of the estate
02/00 After a trial, Judge determined Terri would have
wanted the PEG tube removed and orders it
removed

©Copyright 2005
03/00 Court denied Schindler’s petition to have a
swallow test performed
Limited the Schindler’s visitation and barred them from
photographing Terri
Ordered a Stay until all appeals are concluded
01/01 Florida Court of Appeals denies the Schindlers’
appeal
04/01 Florida Supreme Court denied to hear the
Schindlers’ appeal

©Copyright 2005
04/20/01 Federal District Court granted stay until an
exhaustion of all appeals
04/23/01 US Supreme Court refused to hear the appeal
04/24/01 PEG tube was removed
04/26/01 Schindlers filed for a new trial based on “newly
discovered” evidence that Michael Schiavo lied
about Terri’s wishes
Court denied the Motion
04/26/01 Schindlers file a civil lawsuit alleging Michael
Schindler committed perjury
New Judge ordered the PEG tube be reinserted

©Copyright 2005
10/03/01 Florida Court of Appeals ordered an indefinite stay
in removing the PEG tube
10/17/01 Florida Court of Appeals ordered 5 doctors
examine Terri Schiavo
2 doctors chosen by Michael Schiavo
2 doctors chosen by the Schindlers
1 doctor appointed by the Court
10/22/02 Court had a 2 week trial to determine Terri’s
medical status

©Copyright 2005
11/15/02 Schindlers filed a motion to have Michael Schiavo
removed as Guardian
Alleged he caused her condition through abuse
11/22/02 Judge denied the Schindlers’ motion to remove
Michael Schiavo and ordered the PEG tube
removed
12/13/02 Judge ordered a Stay on the PEG tube removal
until the Court of Appeals ruled
06/06/03 Florida Court of Appeals affirmed the Trial Court
decision and ordered removal of the PEG tube
08/22/03 Florida Supreme Court refuses to hear the
appeal

©Copyright 2005
08/30/03 Schindlers filed a federal lawsuit
10/07/03 Florida Governor Jeb Bush filed a federal brief in
support of the Schindlers lawsuit
10/15/03 PEG tube was removed for the second time
10/20/03 Florida Legislature passed “Terri’s Law” that
allowed the Governor to issue a one-time stay
10/21/03 Florida Governor Jeb Bush issued an Executive
Order to reinsert the PEG tube
10/21/03 PEG tube is reinserted for the second time

©Copyright 2005
10/28/03 President George W. Bush praises the way Jeb
Bush handled this case

©Copyright 2005
10/29/03 Michael Schiavo filed a Motion to have “Terri’s
Law” found unconstitutional
10/31/03 Third Guardian Ad Litem was appointed
Guardian Ad Litem had a medical and law degree and is a
public health professor
11/04/03 Governor Bush requested Schiavo’s Motion to have
“Terri’s Law” found unconstitutional be dismissed
11/08/03 Judge denied Governor Bush’s request
11/10/03 Governor Bush appeals the denial

©Copyright 2005
12/01/03 Third Guardian Ad Litem reported that Terri was
in a persistent vegetative state
03/20/04 Pope John Paul II took a “Sanctity of
Life” position when he addressed the World
Federation of Catholic Medical Associations and
Pontifical Academy for Life Congress on "Life-
Sustaining Treatments and Vegetative State:
Scientific Advances and Ethical Dilemmas."
http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/
march/documents/hf_jp-ii_spe_20040320_congress-
fiamc_en.html

©Copyright 2005
05/06/04 Court found that “Terri’s Law” was unconstitutional
06/01/04 Florida Court of Appeals sent the case directly
to the Florida Supreme Court
07/19/04 Schindlers filed a motion that it would violate
Terri’s free exercise of religious beliefs based upon
Pope John Paul II’s speech
09/23/04 Florida Supreme Court unanimously held that
“Terri’s Law” was unconstitutional

©Copyright 2005
12/03/04 Governor Bush filed an appeal to the US
Supreme Court
that “Terri’s Law” was unconstitutional
03/16/05 US House Of Representatives passed a Bill
entitled “The Incapacitated Persons' Legal
Protection Act”
Authorized removal to federal court
03/17/05 Florida Supreme House of Representatives
passed a bill requiring a living will
Florida Senate votes down the bill

©Copyright 2005
03/17/05 Schindlers filed a petition with the US Supreme
Court
03/18/05 US House Of Representatives Committee on
Government Reform requested the US Supreme
Court hear the appeal
03/18/05 PEG tube was removed for the third time

©Copyright 2005
03/20/05 US Senate suspended Easter Recess to pass
S.686
Applied solely to Terri Schiavo allowing the Schindlers to
file another lawsuit alleging Terri’s rights had been
violated
03/21/05 US House of Representatives passed S.686
after suspending its Easter Recess
03/21/05 President Bush signed S.686

©Copyright 2005
03/22/05 Federal Judge refused to reinsert PEG tube
03/22/05 Schindlers filed an appeal with the US Court of
Appeals
03/23/05 US Court of Appeals refused to overturn the
District Court’s ruling
03/23/05 Schindlers filed an appeal with the US Supreme
Court
03/25/05 Schindlers filed another appeal to the US Court
of Appeals which was denied
03/26/05 Schindlers filed an Appeal with the Florida
Supreme Court which was denied

©Copyright 2005
03/25/05 A man in North Carolina offered $250,000 for the
death of Michael Schiavo and $50,000 for the
death of the Trial Court Judge
03/29/05 Reverend Jesse Jackson held a vigil prayer
outside the hospice and denounced the removal
of the PEG tube
03/29/05 Schindlers filed an appeal with the US Court of
Appeals and ask for a hearing En Banc
03/30/05 The whole panel of the US Court of Appeals
denied the Schindlers’ appeal

©Copyright 2005
03/31/05 Terri Schiavo “DIED”
03/15/05 Judge Ordered release of findings of Schindlers’
89 complaints of abuse against Michael Schiavo
finding no validity to any complaint
06/15/05 Medical Examiner released findings revealing
Terri Schiavo was in a non-reversible vegetative
state and there was no evidence of abuse
06/17/05 Governor Bush requested the State Prosecutor
investigate Michael Schiavo’s role in Terri’s
cardiac arrest in 1990

WHAT IS “DEATH”?
©Copyright 2005
Ethical Perspective:
Qualitative vs. Quantitative
Qualitative
Life Is Measured By The Quality Of The
Person Based Upon Their Expression Of
“Life” Or A Substitution Of Their
Judgment
The Ability To Love And Be Loved
Quantitative
“Sanctity Of Life”-All Life Is Precious
Definable Legal/Medical Death

©Copyright 2005
Legal Perspective
Cardiopulmonary Death
Brain Death
Harvard Standard
Unreceptivity & Unresponsivity to Intense
Painful Stimulation
No Spontaneous Movement Or Spontaneous
Breathing For >1 Hour
No Reflexes, Blinking, Swallowing And Fixed &
Dilated Pupils
In re Bowman, 94 Wash. 407, 617 P.2d 731
(1980)

©Copyright 2005
In re Bowman
William “Mathew” Bowman Was A 5 Year Old
Who Suffered Massive Injuries By Caretaker
Total Absence Of Blood Flow To Brain & No Brain
Activity
Pupils Were Dilated And Nonreactive
No Response To Pain & No Spontaneous Breathing
Guardian Was Appointed Because Parents Were
Not Immediately Available
Parents Were Found And Consented To Have
Life Support Terminated
Guardian Objected

©Copyright 2005
In re Bowman
Court Recognized That As Technology Increases, Law
Must Adapt Regarding The Definition Of “Death”
Modern Medicine Can Sustain Life In The Absence Of
Spontaneous Heartbeat Or Respiration
Society Has A Need For Increased Donors
Tremendous Resources Used To Keep Treating Persons Who
Should Be Declared “Dead”
Need For A Precise Time Of “Death”
Adopted The Uniform Determination Of Death Act
Irreversible Cessation Of Circulator & Respiratory System; Or
Irreversible Cessation Of All Functions Of The Entire Brain,
Including The Brain Stem

©Copyright 2005
Legal Perspective
Brain Death
Non-Heart-Beating Donor
Refers to the harvesting of organs for transplantation from individuals
who are declared dead according to the Circulatory-Respiratory (“CR”)
criteria recommended in the Uniform Determination of Death Act. The
practice has been met with some opposition by those who argue that
brain death is essential to death. According to their thinking, CR
criteria should not be used to declare death but only to infer brain
death. A significant problem is that the inference of brain death from
CR criteria requires at least a ten-minute wait. The ramification is that
most of the body’s organs would be unusable for transplantation by
the time the declaration of death is made, which is required under the
Dead Donor Rule. [Source: DuBois, JM, "Non-Heart-Beating Organ
Donation: A Defense of the Required Determination of Death," Journal
of Law, Medicine & Ethics 27 (1999): 126-36.]

WHAT IS FUTILITY
©Copyright 2005
In re Baby K, 16 F.3d 590 (4th Cir. 1994)
Baby K Was Born In October Of 1992 With Anencephaly
Permanently Unconscious
No Cognitive Ability Or Senses
Physicians Placed A Mechanical Ventilator After Birth
Allowed Physicians To Confirm Diagnosis
Allowed Mother To Understand Diagnosis And Prognosis
Providers Wanted To Not Utilize Mechanical Ventilator
Mother Insisted That Baby K Be Provided A Mechanical
Ventilator When She Had Trouble Breathing On Her Own
Readmitted From Nursing Home To Hospital 3 Times
Court Determined That The Emergency Medical Treatment
and Active Labor Act (“EMTALA”) Requires Stabilizing
Treatment

WHAT IS FUTILITY
©Copyright 2005
A.R.S. § 36-2281 Infants; nutritional and medical denial or deprivation
prohibited; definition
A. A person shall not deny or deprive an infant of nourishment with the intent to cause or allow the
death of the infant for any reason including:
1. The infant was born with a handicap.
2. The infant is not wanted by the parent, parents or guardian.
3. The infant is born alive by natural or artificial means.
B. A person shall not deprive an infant of necessary lifesaving medical treatment or surgical
care.
C. This section shall not be construed to prevent an infant's parent, parents or
guardian from refusing to give consent to medical treatment or surgical care
which is not medically necessary, including care or treatment which either:
1. Is not necessary to save the life of the infant.
2. Has a potential risk to the infant's life or health that outweighs the potential benefit to
the infant of the treatment or care.
3. Is futile treatment or treatment that will do no more than temporarily
prolong the act of dying when death is imminent.
D. In determining whether any of the possible medical treatments will be medically necessary
for an infant, reasonable medical judgments in selecting among alternative courses of
treatment shall be respected.
E. In this article, "infant" means a child less than one year of age.

Physician Assisted
Suicide
©Copyright 2005
Is It Ethical?
No Provider Should Be Forced To Perform An Act
They Find Repugnant
Should Not Be Based On Ego
Treatment Should Be Based On Respect For The Patient
No Provider Is Expected To Break The Law
Suicide Is Not Against The Law
A Physician Cannot Write A Valid Lethal Prescription Per
The Controlled Substance Act
Except In Oregon - Death With Dignity Act
May Be Overturned Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004)
on Appeal To US Supreme Court

Physician Assisted Suicide
©Copyright 2005
Oregon’s “Death With Dignity Act”
Oregon 127.800 et. seq.
Oregon 127.805
An adult who is capable, is a resident of Oregon, and has been
determined by the attending physician and consulting physician to be
suffering from a terminal disease, and who has voluntarily expressed
his or her wish to die, may make a written request for medication for
the purpose of ending his or her life in a humane and dignified
manner..
Oregon 127.820
Before a patient is qualified under ORS 127.800 to 127.897, a
consulting physician shall examine the patient and his or her relevant
medical records and confirm, in writing, the attending physician's
diagnosis that the patient is suffering from a terminal disease, and
verify that the patient is capable, is acting voluntarily and has made an
informed decision.

Palliative Care
©Copyright 2005
Vacco v. Quill, 521 U.S. 793117 S.Ct. 2293 (1997).
Physicians Challenged The Constitutionality Of New York
Statutes Making It A Crime To Aid A Person In Committing
Suicide
The Supreme Court Held The New York Statute Was Not
Unconstitutional
The Supreme Court Recognized That Palliative Care Involving
“Double Effect” Is Permissible Even If It Hastens A Patient’s
Death
Majority Of The Court Rationalizes That Death Is “Unintended” But
Foreseeable
Ethical Question Is Whether Knowing That Death Will Ensue Could Be
“Unintentional” Or Merely A Way To Rationalize The Act Which
Causes The Death

End Of Life

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