Posted on 11/11/2003 4:38:34 AM PST by Theodore R.
Posted on Tue, Nov. 11, 2003
LEARN MORE Florida case puts focus on living wills MORE NOW SEE BENEFITS TO PLANNING AHEAD
By Mary Meehan HERALD-LEADER STAFF WRITER
Lexington attorney David Godfrey usually hears from seniors wanting to create living wills.
Lately, he is hearing from people in their 30s and 40s.
The highly publicized case of Terri Schiavo, a Florida woman at the center of a legal controversy over the right-to-die, has people pondering the uncomfortable question of whether they would want to be kept alive when their brain has essentially died.
A living will spells out exactly what kind of treatment would be acceptable if a person is incapacitated and has a terminal illness or is permanently unconscious.
Schiavo, who did not have a living will, was 26 when she collapsed from a heart attack. Her husband wants to remove a feeding tube that keeps her alive. Her parents are fighting that decision, saying that with proper therapy she will improve.
Her feeding tube had been removed, but the Florida Legislature enacted a law to restart feeding, and the case has sparked a national debate about the right to die.
"People are thinking, 'Gee, we really need to get together so our families don't have to go through the same horrible struggle,'" said Godfrey, staff attorney for Access to Justice Foundation Legal HelpLine for Older Kentuckians.
The issue in the Schiavo case is whether the woman could recover, but, Godfrey said, that's just one reason families disagree over whether life-sustaining measures such as feeding tubes or respirators should remain in place.
"I talk to families in this situation every month," he said. "How many will vary from month to month. Some months it is more than I'd like to count."
"The absence of those documents is a real problem," said Karen Kaplan, chief executive of Partnership for Caring, a national, non-profit advocacy group for end-of-life care. "I think you can see that with the Schiavo case in Florida."
On the public radar
The issue of a patient's right to die has been off and on the public radar for several decades with high-profile cases such as Schiavo's pushing it back into national debate.
Several cases are considered landmarks.
In 1990, the U.S. Supreme Court ruled that life support could be removed if there was "clear and convincing" evidence of a vegetative patient's desire not to be kept alive artificially. This case, which involved Missouri woman Nancy Cruzan, was the first right-to-die case heard before the Supreme Court.
In 1993, the Kentucky Supreme Court ruled that a feeding tube could be removed from a Louisville woman, Martha Sue DeGrella, who had been in a persistent vegetative state for 10 years after a brutal beating. The following year, state Sen. Ernesto Scorsone introduced Kentucky's first living will law.
Although lawsuits are always a possibility, Kentucky's living will law includes a prioritized list of who can make health care decisions and allows treatment to be withdrawn if there is convincing evidence that a patient who had not signed a living will had previously expressed a desire not to be kept alive artificially.
But if a patient's wishes are not precise, "it's a crap shoot basically if you don't have your wishes written down and you haven't talked about them (with loved ones) you could be very lucky or you could be very unlucky," Kaplan said.
Attorney Bruce Simpson, who represented a ward of the state who was in a persistent vegetative state, said he sees problems with Kentucky's law. Simpson's client, Matthew Woods, died before his legal case was resolved. The issue in his case was whether the state, which was paying for his care, could decide to discontinue treatment. The Kentucky Supreme Court heard arguments in the case almost three years ago but has not ruled.
Simpson said the Woods case has broader implications because Kentucky law states end-of-life decisions can be made without a living will. It does not, however, stipulate how those decisions must be made.
Simpson argues: "You can't just let them make the decision arbitrarily."
Not an easy discussion
"The most important thing is for people to execute these documents ahead of time," Scorsone said.
That, however, requires discussing death, which is never easy.
"We know that these situations are very difficult situations. We really encourage families to sit down and have these kinds of conversations," said Sherri Weisenfluh, associate vice president of counseling for Hospice of the Bluegrass.
Families might want to discuss the issue with their family pastor or spiritual leader.
Under federal law, any medical facility that receives federal funding -- that includes nearly all of them -- must ask a patient whether he or she has a living will. The facility can also provide the form to create a living will but cannot deny treatment to someone because he or she does not have one, Godfrey said.
A living will, as laid out in Kentucky law, provides a checklist concerning issues of life-prolonging treatment. It also designates a health care surrogate, someone who makes sure the provisions of the living will are carried out if the patient becomes incapacitated.
Statements on the form include:
• Do not authorize that life-prolonging treatment be withheld or withdrawn.
• Authorize the withholding or withdrawing of artificially provided food, water, or other artificially provided nourishment or fluids.
The document must be witnessed by two non-family members or a notary. People involved in a patient's medical treatment cannot be witnesses. According to Kentucky law, a living will cannot be enforced when a woman is pregnant.
Living wills in most states
Most states have some living will provision, Kaplan said, and federal legislation is being considered that would make them "portable" from state to state. Until then, she said, it is best to have a living will tailored to where you live, and even have two different living wills if you divide your time between two states.
Godfrey said almost all hospitals will allow treatment to be withdrawn if there is a living will. He said nursing facilities sometimes will not, but, he said, they cannot block a patient from being transferred to a facility that will.
It is important, he said, to understand a facility's individual rules.
Godfrey said living wills are often confused with a "do not resuscitate" order. A do-not-resuscitate order is usually used by those with a serious or terminal illness. Godfrey said it lets medical providers know that if a heart stops or someone stops breathing that no measure should be made to resuscitate the patient.
He suggests providing copies of your living will to every medical facility you use and keeping a copy in your car. He said, however, the most important thing is that people get proper information.
"There are a lot of misconceptions about living wills. People think, 'If I have a living will, they are just going to give me pain killers and let me die.'"
He said a living will can also ensure that everything possible is done to extend a person's life. As for Kaplan, her living will makes that point.
She said, "I want the full court press."
Living wills
download a form
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To download from the Web a living will form from the state statutes go to: www.lrc.state.ky.us/KRS/ 311-00/625.PDF
whom to call
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For more information about living wills, call:
• Hospice of the Bluegrass's Sherri Weisenfluh at (859) 276-5344 or (800) 876-6005.
• Access to Justice Foundation Legal HelpLine for Older Kentuckians at 1-800-200-3633.
• Partnership for Caring Hotline, information about living wills, at 1-800-989-9455 or www.partnership forcaring.org.
-------------------------------------------------------------------------------- Herald-Leader news researcher Linda Niemi contributed to this report. Reach Mary Meehan at (859) 231-3261 or 1-800-950-6397, Ext. 3261 or mmeehan1@herald-leader.com.
...Most people, however, do not realize that there are Will to Live Directives that can help protect you in the event of a debilitating medical condition.It is so important that you discuss, openly, with your family and friends your exact wishes for medical treatment and your desire for appropriate care and therapy.
Finally, get to know the statutes in your state or province that relate to medical treatment and incapacitation. What you find may surprise you.
to link: The story of Terri Schindler-Schiavo has prompted a great deal of conversation and concern over health care choices and end-of-life issues. While these topics are extremely important to every one of us, it is important to understand that there are things you can do to ensure that you continue to receive proper medical care in the event of a catastrophic medical event.
Living wills are typically a means to withhold unwanted medical treatment. However, there is also a Will to Live that is recognized throughout the United States and which allows you to specify which types of medical care you do NOT want to be taken away.
In 1990, when Terri Schindler-Schiavo collapsed and suffered debilitating brain damage, Food and Water was not considered "Medical Treatment" under Florida law. It is, therefore, impossible for Terri to have predicted her life would be terminated - against her will - by the removal of nutrition and hydration.
Please take time to find the appropriate document for your state and discuss your desires openly with your loved ones. --- LINKS to diff. states
Indeed, one could argue that things like air conditioning are more "artificial" than feeding tubes (certainly a more recent innovation) and yet I doubt anyone (other than, perhaps, a few nameless trolls) would suggest that locking an incapacitated person in an unventilated room in the middle of Florida summer was appropriate.
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