A LIVING WILL MAY NOT BE ENOUGH IN AN EMERGENCY
A retired Los Angeles bus driver, suffering from lung cancer, drew up a living will to
avoid life-sustaining technology that would prolong his life and suffering. Then one
morning, while preparing breakfast, he felt a sudden intense pain in his back and
cried out. Paramedics, called on the scene by his wife, began a massive
resuscitation effort when they found no pulse. (They passed a line in a vein in his
arm and a tube through his mouth into his lungs.) A DNR order in the living will did
not hold, because living wills do not apply during emergencies that are in or out of
the hospital. (Emergency teams are required to act first, lest crucial time to save a
person's life be lost. This is what the bus driver's daughter was told when she
complained that her dad had a living will specifying no massive resuscitation.) The
paramedics rushed the man to the hospital, Emergency room staff drew a blood
sample, attached wires and hooked him up to a respirator, and sent him to an
intensive care unit, where he remained unconscious with a prognosis of continued
unconsciousness until death. The doctor agreed not to provide further aggressive
care, but did not feel he could disconnect the respirator. Despite the living will,
despite the fact that medical ethicists draw no ethical distinction between
discontinuing existing treatment and starting new treatment, the doctors own values
got in the way. Though California courts have allowed respirators to be turned off in
such cases, the only thing the doctor could offer was to have the hospital ethicist
review the case. Five more days lapsed before the ethics consultation concluded,
and the man was taken off the respirator. In this case, if the patient's daughter had
had a Durable Power of Attorney for Health Care, she would have been able to make
medical decisions for her father as if she were making them for herself.8 A Durable
Power of Attorney for Health Care in combination with a living will may be a more
effective means of increasing the chances that one's health care wishes will be
followed.
b. Oral Directives. Written evidence is preferable to oral directives conferred to
a family member, friend, or health care provider. Brother Fox's verbal statements to
brethren regarding his desire to avoid heroic treatment were accepted as clear and
convincing evidence of his wishes. (See anecdote, p 2-7, "Subjective (Substituted
Judgment) Standard Applied....") But in Cruzan vs. State of Missouri (1990), the
Supreme Court denied Nancy Cruzan's family the right to terminate life-support
equipment for their daughter, who had been in an irreversible coma for 7 years, for lack
of "clear and convincing"4 evidence defining the patient's wishes. Statements by friends
and family did not hold up as "clear and convincing" in the state of Missouri. (The
Supreme Court later upheld each state's right to develop its own standards for clear and
convincing evidence.) Granting someone power of attorney gives that individual the
instrument of authority to act on your behalf. Historically, once a person became
incapacitated, the power lapsed. To overcome this limitation, all states have passed
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