Monday, September 1, 2008

Dorothy Livadas -- Life Support Removed Over Proxy's Objections

On Friday afternoon, Strong Memorial Hospital removed Dorothy Livadas' life support not only without the consent of Dorothy's duly appointed health care agent but also over the agent's vociferous objections. The agent, Dorothy's daughter Ianthe, had been replaced with Catholic Family Center. As the new substitute decision maker, CFC authorized the removal of life support. Yesterday, on a plane from Albuquerque, I read a long post (14 single-spaced pages) that Ianthe had placed in the comments field of this blog. I agree that there is a significant likelihood that the living will did not reflect Dorothy's wishes. There is a significant probability that many living wills fails to reflect the wishes of their makers. But they are presumed to constitute "clear and convincing evidence." Ianthe's evidence about the rushed making of the living will was just not sufficient to overcome the presumption. Like Schiavo, the case did not address end-of-life decision making principles. It was just a dispute about the condition of the patient and the evidence of the patient's wishes. On the other hand, it does indicate a clear trend of courts replacing surrogates who act contrary to either the wishes or best interests of the patient.

9 comments:

Makarios said...

"There is a significant probability that many living wills fails to reflect the wishes of their makers." I wonder why this should be so. I would think that preparing such a document would be a very sobering experience. It certainly was for me. And I would think that, once someone had begun, he/she would think long and hard about each provision of the directive.

Or am I being naive? Is it usual for living wills to be pre-packaged and slipped before the signatory along with a group of other documents requiring their signature?

Thaddeus Mason Pope said...

Makarios,

Surely, many ADs are completed with considerable reflection and deliberation.

But the available evidence suggests that a great many are not. Often they are completed as part of the hospital admission process with many other papers. Or they are completed as part of estate/elder planning along with many other documents.

Okakura said...

Two thoughts...
(1) The Livadas case is really as much (if not more) about medical futility than it is about respecting the patient's apparant wishes. If, for example, Ms. Livadas' LW had specified that she wanted everything done regardless of her prognosis or quality of life, the hospital would not have been obligated to accede to such a request (though most usually do).

2) makarios: I agree with thaddeus and then some. To cite just one of many studies showing the challenges involved with understanding living wills (from Carl Schneider):
U. Nebraska study: 201 elderly subjects are asked whether they would accept or reject CPR, mechanical ventilation, or tube feeding when described three different ways:

12% say YES to intervention when described negatively;

18% say YES when read directly from living will;

30% say YES when presented positively;

77% of respondents changed their minds at least once when given a different description of the intervention.

Lots of real-world problems associated with living wills. Would recommend Schneider and Fagerlin's article on the topic if you haven't already seen it (Hastings Ctr Rpt, Mar/Apr 2004).

Thaddeus Mason Pope said...

Okakura,

I am doubtful that Strong would have pushed this case if the AD did not align with the medical recommendation. In other words, if this were a "real" medical futility case in which the patient's written wishes were either nonexistent or contrary to the hospital's planned course of action, the hospital would probably have acceded to the surrogate.

It is important to remember that Strong not only could override the surrogate here but also it really had a DUTY to do so. It could have been sued or fined for complying with the surrogate's decisions contrary to the AD.

Okakura said...

Thaddeus: I totally agree about Strong's duty in this matter. Just pointing out that patient wishes here are inextricably tied to medical appropriateness. As you know, that door doesn't swing both ways. A patient's 'negative' right (to withhold or withdraw treatments) outweighs his/her positive right to demand treatment. It would be unfortunate if the enduring public perception is that this case was ONLY about honoring the patient's wishes (her directive) without an understanding of WHY these particular wishes were morally and legally binding.

Makarios said...

I have no way of knowing, but I suspect that Strong framed their case in terms of adherence to the AD because they feared that framing it in terms of medical futility could have turned the matter into a protracted court battle/media circus.

A propos advance directives, my reading of the blogs indicates to me that vitalists tend to take a somewhat inconsistent view:

- AD's that specify withdrawal or withholding of LSMT in case of permanent unconsciousness are not to be trusted, since the patient might subsequently have changed his/her mind but failed to record it, or they might not have understood what they were signing.

- On the other hand, a "do everything" AD should be followed to the letter, regardless of the circumstances or consequences.

Thaddeus Mason Pope said...

Agreed. But that one way ratchet / preference for life is a call the U.S. Supreme Court also made in Cruzan. Yes, we might be wrong about what Nancy wanted. But we are going to err on the side of life.

Okakura said...

...or physiologic/organic life.

makarios: I agree with your assessment of the pro-life take on AD's. Perusing the myriad of posts in Wesley Smith's blog, it appears that the technological imperative ("do everything") is fueled by
(1)a mistrust of doctors (wrong diagnosis and/or poor understanding of the condition);
(2) mistrust of hospitals (Smith's "culture of death" notion, looking to cut costs and make decisions based on utilitarian quality-of-life criteria) and;
(3)a multi-focused ethic of care and duty ("Life is sacred." "Suffering can be redemptive.""Did we do everyting possible for our vulnerable loved one?")

In this context, AD's can be seen as preempting a family's moral responsibilities in end-of-life care.

(Not claiming that Wesley Smith himself holds this position exactly as I have construed it, but many social conservatives do.)

Ianthe said...

It's amazing that all these discussions are going on in absence of knowledge of the facts. If I had time...