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IN YOUR PRIME
When The Courts Play God
Late last month the U.S. Supreme Court denied the family of Nancy Cruzan legal permission to
withhold the liquid tube "feedings" that artificially sustain her. In doing so, the court has dealt a
potentially crippling blow to what is perhaps one of our most basic and inalienable rights: the right to refuse bodily invasion.
This issue has been reported widely as "the right to die," with the word "euthanasia" typically
not far behind. It is neither of these. Rather, it is about the realization of fears of thousands of
Americans, that they may someday become prisoners of medical technology with no voice left
with which to raise protest. Nancy Cruzan was lucky. For in the loving, courageous family she
left behind, she had that voice. Tragically, the courts have turned a deaf ear.
At age 32, Nancy Cruzan's condition has remained unchanged now for seven years. An
automobile accident has left her in what doctors call "persistent vegetative state." Her brain
stem, that portion of the brain that drives the "automatic" functions (heart rate, respirations,
bowel movements, etc.) of the body is alive. However, her cerebral cortex --that miracle of
evolution that allows us sentience-- is dead. CAT scans have shown that it has atrophied.
While her intact brain stem creates the illusion of life by using her body as a medium, "Nancy
Cruzan" is gone.
Because it reached the Supreme Court, it is tempting to think that the decision to withdraw
therapy in this case must be special, or extraordinary. It is neither. There are roughly 10,000
people in persistent vegetative states today in hospitals, nursing homes and bedrooms. Many others
have less well demarcated neurological states, supported by various medical technologies. They
may languish for months in intensive care units. Daily, without courts or legal proceedings,
decisions are reached regarding withdrawal of therapy.
Historically, the decision to withhold or withdraw life-prolonging treatment has not been made
by the physician, but by the patient's family, where one exists, in consultation with the
physician, and in many instances, clergy. In such context no ethical physician would presume to
make such a decision, for he or she has learned that the truest interest of the patient is best
represented by the loved ones left behind. What, then, gives a roomful of robed strangers the
right to make such a decision?
Two of this nation's most prestigious medical journals, the New England Journal of Medicine
and the Annals of Internal Medicine, published recent editorials that concluded
recommendations to the court. In essence, what they said was: If it isn't broken don't fix it.
Where a family was close to a patient, knew of his/her desires and clearly has the patient's best
interest at heart, let this family continue to decide. The court's role is best suited to those
situations where (absent written directive) there is no one to act as proxy for the patient, or the
intent of the family is suspect.
Instead, the court has opened the door for restrictive state legislation, declaring that states may
demand "clear and convincing" evidence expressed directly from the patient (now incapacitated)
who wishes to forgo life-sustaining treatment. Ruling that verbal communication is insufficient,
the court expects this Catch-22 to be resolved via an advance written directive known as the
Living Will. This decision, then, necessitates that those individuals whose values differ with
those embodied in their state law must take active measure to protect themselves from the
ultimate government intrusion, invasion of the body.
Obviously, not everyone feels the way Nancy Cruzan used to. There are perhaps equal numbers
of individuals who would wish to have their life-support systems continued no matter how
irrevocable the prognosis. Certainly, that is their right. But so too is it the right of the
disenfranchised to have those same support systems discontinued, and it is patently wrong that the
latter group forfeits that right simply because they are incapable of expressing it.
If Nancy Cruzan was in Florida her parents would face the same dilemma. For several years a
majority of ethicists, as well as the AMA's Council on Ethical and Judicial Affairs, have
considered artificial tube feedings to be equivalent to any other invasive life support (such as
mechanical ventilator). Yet not until June 29, when Gov. Bob Martinez elected not to veto
(again) an amendment (sponsored by Rep. Susan Guber, D-Coral Gables) to the Life-Prolonging
Procedures Act, were feeding tubes even considered "life-prolonging" treatment.
Nevertheless, to withhold or withdraw tube feedings is legal only when death is imminent. The
irony of this situation --lost in the heat of debate-- is that death is usually not imminent when
this issue arises. Indeed, it is precisely because the patient is expected to "survive" that long-term
nutrition and hence a feeding tube are necessary. Again the law serves up a Catch-22: In those
very patients in whom the issue of withdrawing artificial feeding is likely to arise, Florida law
provides no legal avenue for the physician to do so --even if the patient has requested so in a
Living Will.
Advance directive is ideal, but its application may be limited, and there will always be those who
forgo it. Where a permanently incapacitated patient with a caring, concerned family, cognizant
of the patient's wishes under such circumstances is concerned, the law simply needs to provide a
mechanism whereby families can go on making decisions for loved ones, and physicians can
carry them out without fear of prosecution.
Let's take death back from the courtrooms and chambers, and return it to the bedside, where it
belongs. Let the family decide.
--Paul R. Lindeman, M.D.
Miami Herald, July 8, 1990
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Outrageous Associations
