• Selected
• Entire List

Abstract:
In this Article, I will identify and discuss the harms that would have occurred had the Schindlers won the Schiavo Case - the harms both to Terri Schiavo in the private case and the larger set of harms to public policy in the public case. The Schindlers fought Michael Schiavo on a variety of battlegrounds - the Florida courts, the Florida legislative and executive branches, the federal courts, and eventually Congress. Had they definitively prevailed in any of these forums, the consequences for end-of-life decisionmaking would have been largely the same. Had they prevailed in Congress or even in the state legislative and executive branches, however, the consequences would have implicated issues beyond end-of-life decisionmaking, potentially altering the balance among legislative, executive, and judicial power and between federal and state power. Separation of powers and federalism, however, are not the topics I will address.

Had the Schindlers won the Schiavo case, the legal consensus about end-of-life decisionmaking would have suffered serious setbacks, if it had not been sent into total disarray. From a legal perspective, the Schiavo case is pure anticlimax because after all the litigation and legislation - not to mention fighting, and shouting, and even shoving - it did not work any changes in the law. History will view it as another in a series of high profile cases in which the consensus - the legal consensus, the clinical-professional consensus, indeed the societal consensus - about end-of-life decisionmaking further solidified.

end-of-life decision-making, substantive end-of-life law, guardianship, surrogate decisionmaking, PVS, persistent vegetative state, right not to be treated, advance directives

Abstract:
One of the unintended consequences of the decade-old public debate about the legalization of physician-assisted suicide is an increased interest in pain control for terminally ill patients. Pain control and other aspects of palliative care are seen not only as medically desirable but as necessary to assure so as to minimize the pressure to legalize physician-assisted suicide or utilize physician-assisted suicide even if not legal. Most of the public debate has centered on the role of physicians in assisted suicide.

However, there has been very little discussion about the role that health care professionals - - other than physicians -- would play if assisted suicide were legalized. One group of health care professionals -- besides physicians -- that is likely to be involved in legalized assisted suicide is pharmacists, who would dispense lethal substances prescribed by physicians. The debate about the legalization of assisted suicide has also served as an important catalyst to less drastic alternatives, most notably pain control. This, too, implicates pharmacists because an important, if not the predominant, mechanism of pain control is prescription medications. Any barriers that are placed in the way of pharmacists dispensing medications in accordance with a physician's legitimate prescription for pain control undermines the rights that patients might have to receive such medication and interferes with good end-of-life care. In addition, legal barriers to terminally ill patients receiving adequate medications for pain control undermine the Supreme Court's reasoning about the constitutionality of state statutes making assisted suicide a crime and could lead the Court to reconsider its decisions. Finally, legal barriers to the dispensing of medications for patients to use in physician-assisted suicide, where it is legal, interferes with this right as well. Although approximately 20 states have enacted statutes intended to make pain control medication more readily available by removing liability for patient death caused unintentionally caused by such medications, these statutes provide inadequate protection. If terminally ill patients are to receive the medications they need so that they may die peacefully, without preventable suffering, courts, legislatures, and administrative agencies will need to give pharmacists as well as physicians sufficient latitude to practice their professions in accordance with the intent of the palliative care statutes and the Supreme Court decisions.

physician-assisted suicide, legalization, pharmacist, criminality, termination of life support

Abstract:
In Silent World of Physician and Patient, Jay Katz recognizes the distinction between the idea of informed consent and the legal doctrine of informed consent. Prof. Katz wrote so eloquently about what happened to the idea of informed consent when it fell into the hands of lawmakers. This paper discusses what happened to the legal doctrine of informed consent when it fell into the hands of lawyers and health care managers. Instead of focusing on the goals that the requirement of obtaining informed consent sought to promote - patient self-determination, informed decision-making, and protection from harm chief among them - lawyers for doctors and hospitals instead focused on documenting whether information had been disclosed, even if in fact it had not been. Thus the centerpiece of informed consent became the consent form rather than the process of disclosure - and the opportunity it provided for discussion between physician and patient.

informed consent, bureaucracy, litigation, malpractice, shared decisionmaking, consent form

Abstract:
Given the Supreme Court's rulings that there is no federal constitutional right to physician-assisted suicide, the locus of legal debate will move to state forums. Courts have more than twenty years' experience in legalizing the practice of "passively hastening death" by physicians. In so doing, they have had to confront state statutes criminalizing not only assisted suicide but homicide. They have done so by concluding that passively hastening death does not meet the requirements of these offenses and thus is not criminal conduct.

This article reexamines this approach to the legalization of passively hastening death and concludes that most of the arguments accepted by courts for its noncriminality are spurious. A more honest approach is to admit that passively hastening death meets the definition of a crime but to hold that liability should not be imposed because of the existence of consent. The author applies this analysis to actively hastening death and concludes that because there are no significant reasons to distinguish actively hastening death from passively hastening death, the two should be treated the same by state courts, that is, actively hastening death (including physician-assisted suicide) should also be legal.

physician-assisted suicide, legalization, criminality, termination of life support

Abstract:
Some argue that legalizing physician-assisted suicide poses intolerable risks, especially as we move from a system of fee-for-service health care to managed care. Although we need to be concerned about physician-assisted suicide in the context of managed care, physician-assisted suicide poses risks in a fee-for-service system too. In addition, we need to be concerned about the risks posed not only by physician-assisted suicide but also by the well-accepted practice of forgoing life-sustaining treatment. Instead of focusing on the manner of hastening death or the type of health care system, we need to show more concern for protections to assure that no matter how terminally ill patients seek to hasten their deaths, if they do, and regardless of the type of health care system, that their decisions are genuine reflections of their own wishes. Of course, we need to design safeguards that are sensitive to the nature of the health care system and the particular kinds of problems that it might pose (such as managed care incentives), and we need to take into account any special problems posed by physician-assisted suicide in contrast to termination of life support, if there are any. There is only the weakest evidence, however, that we need to prevent the legalization of physician-assisted suicide simply because of the ascendance of managed care.

physician-assisted suicide, legalization, actively hastening death, passively hastening death, palliative care, pain control

Abstract:
This study examines personal beliefs and professional behavior of criminal prosecutors toward end-of-life decisions, to determine whether instances of forgoing life-sustaining treatment and physician-assisted suicide are likely to be prosecuted and whether the public debate about physician-assisted suicide is likely to increase the involvement of prosecutors in issues of termination of life support. The study was conducted by a mail questionnaire. All prosecuting attorneys who are members of the National District Attorneys Association (n=2844) were mailed a questionnaire, with two follow-up mailings. 761 surveys were returned for a response rate of 26.8%. Prosecutors were asked to respond to questions concerning the potential for criminal liability in 4 cases of end-of-life decisionmaking, one involving physician-assisted suicide. A majority of respondents would not seek prosecution in each of the 4 cases, believe that the physicians' actions are morally correct in each case, and would want the same action taken if they were in the patient's position. Those who would prosecute would most often seek a charge of criminal homicide. Results indicate a strong correlation between personal beliefs and professional behaviors.

Criminal prosecutors are unwilling to prosecute physicians in those cases that clearly fall within currently accepted legal and professional boundaries. In the case of physician-assisted suicide, results reflect a surprisingly large professional unwillingness to prosecute and an even greater personal acceptance of physician-assisted suicide.