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The Rochester Democrat and Chronicle reported yesterday that "the Appellate Division of [the New York] state Supreme Court refused . . . to extend the deadline for legal challenges to plans to remove Dorothy Livadas, 97, from life support at Strong Memorial Hospital."

Earlier this year, the local trial court removed Livadas' appointed agent, her daughter Ianthe, and instead appointed Catholic Family Center as Livadas' guardian. With the appellate court now stepping away, the trial court's order stands. Since the basic reason for replacing the substitute decision maker was Ianthe's refusal to consent to removing Livdas' life support, CFC should make that decision shortly.

The decision seems correct. Livadas clearly stated in her living will that she did not want to be kept on life support were she in the condition in which she is indisputably now in. Since Ianthe's health care decisions for Livadas contradicted instructions in Livadas' living will, Ianthe was a bad agent and had to be replaced.

But let's not forget that while Livadas' living will clearly applies to the present circumstances, the result is still premised on the assumption that Livadas' living will accurately represents her preferences. Ianthe argued that since Livadas signed many legal papers the same day she signed her living will, it is unlikely that she put much thought into it. Indeed, it is likely that many living wills (instructional advance directives) accurately reflect the preferences of declarants. But the presumption is that they do. Ianthe just could not bear the heavy burden of rebutting this presumption.

Lisa Dahm at South Texas College of Law has published "Medical Futility and the Texas Medical Futility Statute: A Model to Follow or One to Avoid?" in the August 2008 Health Lawyer, the flagship publication of the American Bar Association Health Law Section.

From the final paragraph of the conclusion: Texas’ medical futility process is not perfect, but it does provide a mechanism for dealing with irreconcilable conflicts between physicians and patients and/or their surrogates regarding end of life care. Existing “problems” with the TADA MFP – the definition of “inappropriate treatment,” the number of days allowed to effect a patient’s transfer, using a hospital committee to approve or deny the physician’s recommendation, the lack of facilities willing to accept patients on life support, and the health risks to patients during transfer – may likely be addressed in future legislative sessions. Currently, however, the TADA MFP is the only statute in the nation that brings the medical futilityprocess to a definitive conclusion. Whether other states will follow Texas’ lead and draft similar legislation remains to be seen.