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Abstract:
The document titled "Physician Orders for Life-Sustaining Treatment" (POLST) is a pre-printed physician order form memorializing a patient's wishes with respect to the administration or withholding of life-prolonging treatment near the end of life. Since its inception, POLST has changed practice in medical institutions in many states, but, although experts have recommended nationwide implementation, it has not yet become the standard of care to use POLST in all states. This article proposes that proponents of POLST should work with appropriate administrative agencies in their states to recognize POLST through the regulatory process rather than either encouraging the use of POLST through grass-roots development of a standard of care or attempting to pass statutes explicitly setting forth POLST programs.

law, health law, end of life, life-sustaining treatment, patients, administrative law

Abstract:
Everyone requires health care at some point during his or her lifetime, and the law increasingly regulates the cost and quality of, and access to, such health care. In 2001, Nova Southeastern University's Shepard Broad Law Center hosted a Goodwin Seminar to focus on concerns about cost, quality, and access as the linchpins of health care policy, also considering the future of health care internationally. This introduction summarizes the interdisciplinary seminar and provides information about the articles in this symposium issue.

Goodwin Seminar Shepard Broad, cost, quality and access to health care, symposium

Abstract:
Theresa Marie Schiavo died a celebrity at the age of 42 in Pinellas Park, Florida, in early 2005. She never sought the public spotlight; she never even knew she was a celebrity. She became a celebrity, one of the best-known figures in bioethics, because of politics. This Article examines the politics surrounding her death and draws some conclusions about the aftermath for those left behind in the America Ms. Schiavo departed.

The lessons of Schiavo are mixed. It unquestionably will impact end-of-life decisionmaking in America for years to come, in at least one positive but mostly negative ways. Both individuals and individual cases will be affected, and the general tone and pattern of end-of-life decisionmaking will change. Even beyond the realm of end-of-life decisionmaking law, the politics of Schiavo, for better or worse, can be seen as an example of a more general politicization of bioethics. Finally, Schiavo highlights some major lessons to be learned about the functioning of our American constitutional republican form of government.

Persistent vegetative state, advance directives, end-of-life decision-making

Abstract:
Politically strident debates surrounding end-of-life decisionmaking have surfaced once again, this time across the Atlantic in Italy. Eluana Englaro died early this year after a prolonged court fight, causing the international press to compare her case to that of Theresa Marie Schiavo, who passed away in 2005 in Florida after nearly sparking constitutional crises on both state and federal levels. In many respects, the facts of Ms. Englaro’s case are similar to Schiavo, but a close analysis of Englaro leads to the surprising conclusion that the Italian Court of Cassazione in that case actually enunciated a broader, stronger right to make end-of-life decisions than has the United States Supreme Court thus far in America.

The parallels between Englaro and Schiavo have not solely been judicial, however. In a number of ways, despite the breadth of the judicial decisions in Englaro, institutional differences seem to be leading Italy down a different path in the Parliament than the United States has taken through its several legislatures. Despite the introduction of advance directive legislation in Parliament, it seems as if Italy’s path toward patients’ preserving robust end-of-life decisionmaking power even in incompetency lies not through that body in the future but through that body’s past actions. If the current proposed legislation fails, it is possible that patients and the courts can build upon the groundwork the courts have established through the Italian constitution in combination with the statutory tool of the amministratore di sostegno to secure robust patient autonomy near the end of life.

end-of-life, constitutional law, Italian constitutional law, Italy, Italian law, decision-making, Schiavo, Englaro, patient autonomy

Abstract:
This Article analyzes what some believe to be the silver bullet curing many of the ills of the health care industry, alternative dispute resolution. After reviewing the various forms of alternative dispute resolution that have been incorporated into the health care system, the Article examines reasons why alternative dispute resolution ultimately will not resolve the tension between patients and the health care industry in today's medical marketplace. Rather, it suggests that the health care industry should adopt a conflict management approach, focusing on education and on optimizing procedural justice rather than on alternative forms of resolving discrete issues. Should the health care industry adopt this proposal, the Article suggests, patients will respond positively and many of the tensions currently present in the system will be resolved.

Abstract:
External review has not cured the health care dispute resolution system with regard to patients' requests for coverage of last-chance therapies, even if it has done some good in the area of medical necessity determinations. This Article discusses the difficult issues posed by coverage requests for last-chance therapies and proposes that insurers take into consideration the state in which patients seeking last-chance therapies are operating when engaging in decisionmaking in this area. Insurers must recognize that denials of coverage will force patients both to face a classic example of a tragic choice in health care, and to come to terms with the fact that no treatment is available to help them live. Communication about decisionmaking and about the decision itself should be accomplished through a process that treats patients as individuals rather than as covered lives and uses multidisciplinary teams to work through a dialogue about the myriad social, emotional and medical issues raised by requests for coverage of last-chance therapies.

Health care, insurance, external review, coverage

Abstract:
As others have noted, the importance of the Terri Schiavo case is not legal; the various Schiavo opinions broke no new legal ground other than the constitutional questions raised when legislatures began intervening to attempt to change the outcome of the end-of-life decision-making rulings. Rather, it was activism by certain disability rights and vitalist groups that so caught the attention of the public, the politicians and the media. Focusing upon the imagery and framing utilized by vitalist activists, disabled persons saw themselves reflected in Ms. Schiavo's position, despite the fact that Ms. Schiavo lay in a persistent vegetative state. Their fear is the type of fear that those who believe in the right to self-determination in end-of-life medical decision-making must address to avoid retreat from the principles eloquently explained in the landmark case of In re Quinlan. This article traces the development of the law and politics from Quinlan to Cruzan to Schiavo as seen through the objections of persons with disabilities. It concludes by urging that disabled persons should be drawn into reasoned conversation to a greater extent so that they may see that those who supported the result in Schiavo are not out to get people with disabilities and that decisions like Schiavo in fact serve us all, including those with disabilities.

End-of-life decision-making, disability

Abstract:
In the aftermath of the Schiavo case, the journal Death Studies is publishing a special issue, with articles from six authors with unique perspectives on the case. This article provides introductory factual background for those six articles.

end-of-life decisionmaking

Abstract:
Dying Medicare recipients currently must accept the inevitability of impending death before Medicare will fund hospice services. Such a state of affairs is far from optimal, for hospice services provide both physical and psychological benefits long before patients have accepted their fates. This article explores the history and philosophy of hospice and highlights the anti-therapeutic gap between the time at which patients can benefit most from accessing hospice services and the time at which the Medicare statute and regulations first support access. It concludes by recommending that Congress blur or eliminate the currently existing false dichotomy between palliative and curative care that partially causes the gap and by calling for empirical research to help determine exactly how Congress should do so.

Medicare payments, hospice, proposed legislation

Abstract:
More than 15 years elapsed between the date Theresa Marie Schiavo suffered a cardiac arrest, leaving her in a persistent vegetative state because of brain damage, and the date she took her last breath. The conflict between her parents and her husband regarding her medical care lasted for more than 11 of those 15 years. The litigation over her care lasted for more than six. It is difficult to keep track of the multiple court cases filed in Schiavo, let alone to pinpoint the highlights of their many twists and turns. It may be possible, however, to predict how the aftereffects of the Schiavo maelstrom will impact upon the law of end-of-life decision-making in Florida. This article highlights statements made during the Florida Legislature's debates about the Schiavo matter in late 2003 and analyzes what citizens of Florida might expect in terms of lingering legal effects of the Schiavo case and the storm surrounding it.

persistent vegetative state, litigation, Schiavo, end-of-life decision-making, Florida

Abstract:
This is an abstract for a book review about "Regulating How We Die," edited by Linda Emanuel (Harvard University Press, 1998).

Nearly everyone agrees that we can do better at dealing with death. The only question seems to concern the manner in which we do better. Options range from improving pain control to legalizing physician-assisted suicide. Regulating How We Die explores some of the options and leaves everyone from the casual reader to the philosopher to the statistician to the physician with food for thought.

law, death, physician-assisted suicide, pain control, regulation, book review

Abstract:
This Article examines the impact of certain sociologic, economic and political factors on patients in the American health care system. In particular, it explains how the convergence of coverage, care, cost considerations and federal law has led to both a distrust of the medical profession and inequity among patients. Then it examines how the law could help eliminate some of the currently existing negative attitude and inequities: first, through consumer access to greater information, and second, through the imposition of enterprise liability on managed care entities for medical malpractice. It concludes that today's main consumer protection challenge is not only to increase the amount of information available, but also to work with ERISA, amending it if necessary, to eliminate inequities between recipients of health care coverage based solely on the source of that coverage.

Abstract:
This article examines the class action as a procedural method of attempting to achieve quality in the managed care system. It first briefly illustrates why and how the class action is an appropriate approach to some types of litigation because of its ability to empower groups of people, in this case covered individuals. Examining the allegations of some of the current managed care class actions, the article demonstrates that the class actions are likely to promote quality health care in both an empowerment and a free market competition sense. Therefore, although litigation is usually seen as an attempt to regulate the market, this type of litigation can assist the functioning of the market for health care coverage.

Abstract:
Oregon voters approved the first American statute authorizing physician-assisted suicide in 1994. Since then, the state has released two annual reports, revealing that a total of 43 patients have died after ingesting lethal medications pursuant to the Oregon Death Dignity Act since its implementation. This article examines the positive and negative psychological effects of the Act on patients. In general, it appears that, based on psychological theory and the available data, laws such as Oregon's benefit patients psychologically. Undoubtedly, however, there exist important possible anti-therapeutic effects on patients. It is hoped that discussion of therapeutic and anti-therapeutic consequences of laws authorizing physician-assisted suicide will stimulate future research by social scientists in this area.

Abstract:
The AMA Council on Ethical and Judicial Affairs recommends that physicians discuss advance directives with their patients and the patients' proxies. It is difficult, if not impossible, to dispute the wisdom of these recommendations. The Council could have gone further, however, by recognizing the difficulties physicians will encounter in trying to implement its proposal in a managed health care system. There is an undeniable need for caregiver participation in end-of-life planning, but today's health care system must recognize and support implementation of the Council's recommendations to make that possible. More explicit recognition of this fact on the part of the Council would have helped physicians attempt to comply with its recommendations.