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LIVING
WILL “Living
Will” is the generic name better known than the legal name given to the Act
passed by the several states. In
Pennsylvania, the Act is known as the Advanced Health Care Declaration; in other
states, the living will laws have various names such as the “Death With
Dignity” act or other titles. The
purpose of the Living Will is to permit the Declarant to decide in advance of
illness, incapacity or incompetence, what, if any, life support systems are to
be used or not used under certain circumstances. “Living Will” decisions are
life and death decisions and should
be made by the Declarant/Patient and not by other people. A
Living Will is only to be considered for
use where one or both of the following circumstances exists:
(1) The patient has been diagnosed
with a terminal illness which is expected to result in death within a short
time, i.e. six (6) months; and/or (2) the patient has been diagnosed as
suffering from a permanent state of unconsciousness with no hope of ever
regaining consciousness. Under
no other conditions should a Living Will be considered.
For example, if a person is suffering from a heart attack and was
admitted to the hospital and another heart attack begins, the patient would
receive cardiac resuscitation and it would be inappropriate to use a Living Will
and prevent that patient from medical help that may be helpful.
Another example would be where a person’s respiratory system has failed
i.e. a lung has collapsed and the patient must be put on a ventilator.
A collapsed lung is not a “per se” fatal condition and placing a
person on a ventilator could be appropriate because it would be inappropriate to keep such a person from receiving available
treatment that could benefit the patient. In
preparing a Living Will, the one making the declaration names a surrogate or
representative to speak for them when they can not. In the Living Will, instructions to be
carried out are written. The doctors and the medical facility do not make final
decisions. Their job is to diagnose
and supply information to the patient or his or her representative.
If the doctor concludes that a patient who has suffered a heart attack is
"not going to make it" and says a “do not resuscitate (DNR) should be placed on
the chart”, remember that it is only his/her opinion or recommendation and is not
legally binding. In
one case
which the writer of this article was involved just such
a incident occurred. The wife of the heart attack victim insisted that cardiac
resuscitation be employed after the doctor said it would be pointless.
Five years from that date, that person was in front of me preparing a
Will and shaking his head and laughing and joking about how his wife stood up
for him and saved his life. Had the
wife followed the opinion of the doctor, it perhaps would have ended the
husband’s life. It
is the opinion of this writer that the health care industry is moving towards
reducing the amount of “life support” treatment it will pay for when the
insurance company believes that the treatment would be of no benefit to the
patient; such a conclusion might even be contrary to medical opinion and if that
were the case, and the family wished to proceed with the recommended treatment,
they would have to pay for the treatment on their own and possibly seek legal
redress against the insurance carrier. On
the other hand, if a patient is terminally ill or permanently unconscious with
no hope of recovery, and a patient is left on life support systems because of
the refusal of the family to let
go, or the medical facility has refused to disconnect, severe economic
and emotional hardship may befall the family. The
United States Supreme Court in 1990 decided a case from the state of Missouri
which recognized the right of every citizen to refuse medical treatment.
The right was recognized as a constitutional right and would apply if a
person was conscious and able to speak or unconscious and unable to participate
meaningfully in medical treatment decisions where that person had a “Living
Will” prepared in advance. If a person were not able to speak, and did not
have a Living Will, those mentioned hardships could result for the patient and the
family. In
the United States Supreme Court case referred to above, Nancy Cruzan was in an
accident and before help arrived her brain was deprived of oxygen for a long
period of time, perhaps between 9 and 12 minutes. The paramedics came upon the scene and provided resuscitation
which began her organs functioning again. Nancy
was admitted to the hospital and after tests were concluded, it was determined that she
was permanently unconscious i.e. there was no hope of her ever regaining
consciousness. After approximately
three months the parents accepted the fact that their daughter was not going to
live, and instructed the hospital to withdraw the life support systems; the
hospital refused to do so. The
case went to the Supreme Court of Missouri which agreed with the medical
facility and declined to issue an order to disconnect the life support.
The case was then appealed to the United States Supreme Court.
The Supreme Court entered an ordered that recognized the right of every
citizen to refuse medical treatment. It allowed the medical facility to
disconnect. Thirteen days later,
Nancy Cruzan died. The
cost of almost 9 years of life support was astronomical.
The hardship that the family endured in knowing that their loved one laid
helpless with no hope of recovery gave rise to a degree of emotional anguish
that is impossible to measure. There
are standard Living Will forms printed right from the statute which may not give
a person the level of comfort and assurance that the plug would
not be pulled prematurely or at the other extreme that the patient would
be left on life support only prolonging the dying process, possibly for years. Carefully
explanation of a Living Will and its ramifications, consequences, meaning and
appropriate use can best be understood by discussing it with a lawyer. It is
also recommended that a copy of your Living Will be given to your physician and
that it be discussed with the doctor. Ó 2000 James
W. Pearson, Jr., All Rights Reserved FOR ADDITIONAL INFORMATION CALL THE TOLL FREE HELP LINE 1-800-232-1477 E-mail: lawyer@lawwalk.com JAMES
W. PEARSON, JR. Chair of the Federal & State Credit Union Department & Coordinator of legal consultations under the Family Legal Care Plans offered to credit union members. |
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