Wrongful Living

By Lopez, Alberto B.; Vars, Fredrick E. | Iowa Law Review, May 2019 | Go to article overview

Wrongful Living


Lopez, Alberto B., Vars, Fredrick E., Iowa Law Review


I. Introduction

The Hippocratic Oath, which dates from the 4th Century BC, represents "an expression of ideal conduct for the physician."1 As part of its prescription for "ideal conduct," the ancient oath commands physicians to keep patients "from harm and injustice."2 Updating the traditional injunction to keep patients from amorphous "harm and injustice," the contemporary Oath frequently commands physicians to avoid the specific "traps of overtreatment and . . . nihilism."3 Two recent physician-authored books, however, cast substantial doubt on how well medical professionals adhere to the Oath's mandate regardless of its phrasing. In his best-selling book Being Mortal, Dr. Atul Gawande asserts that a physician's default impulse is to continue treatment because "rarely is there nothing more that doctors can do."4 The consequence of medical decision-making by default can be substantial because aggressive treatment could be "devastating to a person's life" or what is left of a person's life.5 More graphically, Dr. Jessica Nutik Zitter's Extreme Measures warns that unthinking implementation of medical procedures places patients on an "end-of-life conveyor belt."6 At the end-literally-patients are "often comatose, tied down, and sedated" while "tethered . . . to machines" as part "of a mechanized death."7

To derail the journey toward "the end of life conveyor belt," statutory law provides individuals with an opportunity to decide how end-of-life care should proceed, if at all, by executing an "advance directive." The generic phrase "advance directive" refers to various legal instruments-such as a living will or a durable power of attorney for healthcare-that permit an individual to document wishes regarding future healthcare decisions.8 Each of these instruments is governed by state law. Predictably, state statutes vary not only in the requirements for execution but also in which specific documents are recognized as legal instruments. For example, Massachusetts is one of three states that recognizes an individual's authority to designate a person to make future healthcare decisions on her behalf in the form of a healthcare proxy, but does not recognize living wills.9 Despite differences, one basic policy serves as the foundation for all state statutes: Individuals have a right to control their healthcare decisions, including the decision to forego or cease life-sustaining treatments.10 Complying with the individual's decision respects the individual's dignity, especially where medical treatment may serve only to prolong the process of death while "providing nothing medically necessary or beneficial to the person."11 In short, advance directives protect individual autonomy under circumstances where an individual is most vulnerable to violations of dignity and autonomy.

Studies repeatedly conclude, however, that an advance directive is little more than a paper barrier against unwanted prolongation of life. A 1991 study published in the New England Journal of Medicine, for example, reported that the inclusion of an advance directive in a patient's medical record failed to promote compliance with a patient's preferences for life-sustaining care.12 Worse yet, one survey analyzed physician responses to hypothetical situations involving seriously ill patients with advance directives and reported that the treatment decisions in those hypotheticals failed to comply with the advance directive 65% of the time.13 To that end, the researchers concluded that other factors such as "[q]uality of life, treatment outcomes, and family preferences," trumped a patient's documented preferences for treatment.14 At the far end of the extreme spectrum, another group of researchers announced that "as far as [they] could tell, advance directives were irrelevant to decision making" by medical personnel.15 While studies generally do not go so far as to label advance directives as "irrelevant,"16 research resoundingly finds "physicians routinely ignore patient instructions about end-of-life medical care. …

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