AS A PROFESSIONAL, I wear several hats. During the day, I am an attorney in private practice. Additionally, one or two nights aweek, I am an academic professor, teaching a Bio-Medical Ethics course.As a practicing lawyer, clients ask me to prepare Wills, Durable Powersof Attorney and, often, an Advance Medical Directive (a.k.a. Living Will).An Advance Medical Directive is a fairly new legal, medical, ethical, and social concept. Advances in modern medical technology have prompted moreinterest in ordinary citizens having such a document. Today life can be prolonged in situations which 50 years ago would have resulted in death.This provides an opportunity for citizens (patients) to face choices about measures to prolong life.
This concept of patient choice originated in modern jurisprudence with a 1914 case, Schoendorff v. Society of New York Hospital. 1 Judge Cardozo established a simple legal principle known as informed consent. This principle declares that an adult citizen has a right todecide what happens to his or her own body. A competent adult can make decisions about what medical care he or she wishes to receive. Doctors, nurses, and hospitals are bound to respect those care decisions. Theconcept of an Advance Medical Directive is based on this first principle established by Judge Cardozo in Schoendorff. The second related, and equally important principle, is that while a citizen is in a state of competency and normal health, he or she can make decisions about what medical care he or she wishes to have in the event he or she becomes incompetent (i.e., cannot communicate with medical care providers). These two principles stand as basic and suitable for democracy. Democracy originates from two Greek words that mean government by common people, ordinary people. Under a democracy, a citizen (patient) has a fair say in self-government.Self-government extends not only to the political system, but to the social system of medical care as well. That idea rests at the very heartof Cardozo's principles in Schoendorff.
The majority of students in the Bio-Medical Ethics course are registered nurses, pursuing a Bachelor's degree in Nursing. As a textbook for thiscourse, I do not use a standard philosophy book but instead use Bioethics: Health Care Law and Ethics. 2 This text producessignificant discussion with students. Over and over, I hear from students that they have witnessed a similar experience: doctors and hospitals routinely ignoring Advance Medical Directives.
After recovering from my initial shock at this disclosure, I have questioned whether I should prepare such a document for my clients who request them.My clients are citizens of a democracy and, as such, have a legal and democratic right to determine what happens to their own bodies. Citizensin a democracy have a right to self-government that is absolute.
An Advance Medical Directive is the written expression of a right that isenforceable in a court of law. Upon review of various legal research systems, there appears to be very few cases in which an Advance Medical Directive hasbeen litigated between patient and doctor or patient and hospital. Of the handful of such cases that have gone before American appellate courts, a1996 case from the State of Ohio, Anderson v St. Francis-St. George Hospital, 671 NE 2d 225 (1996), 3 is a very interesting and informative.
Mr. Anderson was an elderly patient, over 80 years of age, suffering from multiple cardiac problems. He requested, in his own language, that his doctors enter on his chart a Do Not Resuscitate order. His attending physician honored this request. An appropriate notation was made on thechart. About 3 days later, the patient developed some irregularities. Anurse who was apparently unaware of the Do Not Resuscitate Order resuscitated the patient. Mr. Anderson was successfully resuscitated but, 2 days later, suffered a stroke that left him paralyzed on the right side, incontinent, unable to walk, and unable to perform many activities of daily living. Helived with these problems for an additional 2 years after his discharge from the hospital.
The court awarded no damages to the patient, concluding that, based upon the evidence of record, the stroke was not directly related to the resuscitationof 2 days prior. However, the court clearly said that where a patient has set limitations on the medical measures that he is willing to undergo, health care providers must provide their medical ministrations with full regard for such instructions. The court opined that if a medical care provider ignored such a directive, the patient could sue for civil assault and battery, as well as seeking sanctions against the license of the medical professionals involved.
When speaking of the Do Not Resuscitate order, the Ohio court specificallyused the word "breach" when describing the nurse's conduct. That suggests that an Advance Medical Directive rises to the level of a contract between patient and physician. The contract is created once the physician accepts the Advance Medical Directive and makes it part of the patient's record. Once such a directive is part of the patient's record, the conduct of the doctor inignoring that directive amounts to a breach of an agreement with the patient.The physician is then subject to available remedies at law.
Patient involvement in decision making is the appropriate model for ademocracy. Among ancient civilizations, including the Greeks, many feared democracy because they feared ordinary people. To believe that an ordinary soldier, an ordinary carpenter, or the janitor in the public theater had as much ability to govern as a general, a rich merchant, and a philosopherking made many of the ancients queasy. However, our democratic experiment continues to believe in government by ordinary people. The radicals whodrafted the Fourteenth Amendment to the American Constitution insisted thata citizen is any person born or naturalized in the United States. That totalinsistence on any and all persons makes clear that our government rests not on wealth, not on knowledge, but on a concept of the worth of persons.Governance means more than just the political realm. Governance includes the provision of medical care. If it did not, the state would not botherto license and regulate medical care providers. At the heart of that regulation is the concept of citizenship. Physicians or any health care provider working under physician's direction who ignores a patient's Advance Medical Directive does so in violation of democratic principles; indeed, they do so at risk to themselves.
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