grinner
06-23-2004, 08:18 AM
Experts: Living wills often flawed
BY KATHLEEN KERR
STAFF WRITER
June 21, 2004
The living will, long touted as a way to prevent technology from complicating death and artificially prolonging life, has outlived its usefulness, a growing number of medical and legal experts say.
For more than two decades, wary Americans have been using the documents to state their health care preferences in anticipation of a time when they can't do so.
The usual reason for a living will has been to avoid the arsenal of ventilators and feeding tubes that can keep seriously ill patients alive, sometimes in a persistent vegetative state.
But experts say the concept is obsolete.
"It's [the living will] a virtual failure," said Thomas Murray, president of The Hastings Center, a bioethics institute in Garrison, N.Y. "The living will is particularly ill-designed to do what you want it to do. Any tiny crack can be enough to destroy the entire foundation of that document."
Since their inception, living wills have exhibited flaws: People with living wills don't always tell their relatives about them, so their wishes remain unknown. Hospitals find the wills difficult to interpret: a stated preference not to receive artificial nutrition when brain-dead may not apply if a person is comatose. And it's difficult to address all possible end-of-life situations in a living will - especially as life-sustaining technology continues to evolve.
Recently, two University of Michigan researchers, writing in the bimonthly Hastings Center Report, a journal that examines issues in medical ethics, concluded that living wills are useless.
"It's very hard for people to predict their preferences for an unknown health condition," said Angela Fagerlin, a research scientist and co-author of the article. In addition, "decision makers have a difficult time interpreting [living wills]," Fagerlin said.
And Carl Schneider, a law professor and Fagerlin's co-author, says: "In lots of ways, the unsolvable problem is that writing down your intentions clearly is a lot harder than people think it is."
The case of Ellen Haymes, a Brooklyn woman who shot herself in a 1993 suicide attempt, illustrates the problems. The decision in that case reinforced New York State's strict interpretation of right-to-die case law.
Haymes was rushed to The Brookdale University Hospital and Medical Center, underwent emergency surgery and was placed on a ventilator. Her sister produced Haymes' living will and asked the hospital to disconnect the ventilator. Brookdale refused.
Haymes lived and made a partial recovery but was left blind. Later, Haymes and her sister sued the hospital. Steven Mandell, a Manhattan attorney who represented the hospital, said on Thursday that treatment was already under way when the sister arrived and that "the so-called living will is not an instrument which is enforceable in the state of New York. There was no obligation to follow the so-called will."
In 2001, the Appellate Division of State Supreme Court ruled that Brookdale had acted appropriately and that Haymes' living will did not clearly state her wishes, that she did not have the required two witnesses, and that she had no valid health-care proxy.
Designating a proxy
In the current Florida case of Terry Schiavo - whose feeding tube is keeping her alive - there is no living will or any other form of advance directive that could provide guidance as her parents and husband battle over whether to remove the feeding tube. Attorneys say that advance directives - like health care proxy statements or durable powers of attorney - now are either replacing or supplementing living wills as legal instruments that allow people to designate someone to make medical decisions for them.
New York State's health care proxy statute was enacted in 1991. Robert Kurre, a Great Neck attorney who specializes in elder law, said he urges clients to name a such a proxy - a person who will act in their stead should they become unable to speak for themselves - in addition to having a living will. He also tells clients to add a statement concerning their wishes on artificial feeding to any proxy statement.
"If you check yourself into a hospital or nursing home, it's [the health care proxy] the document they want to see," said Kurre, explaining it's more effective to have a health care proxy who can make decisions for you in the event that unanticipated health care questions arise.
By themselves, Kurre said, living wills are a "recipe for disaster."Ira Calderon, a wholesale insurance broker who lives in Great Neck, has followed Kurre's advice. Calderon, 43, said a family member urged him to document his medical preferences and he now has both a living will and a health care proxy.
"I just want to make sure if I'm ever disabled and unable to make a decision myself, I want to make sure these wishes are taken care of," Calderon said.
Kurre said some lawyers with general practices still counsel clients that living wills are enough - advice that he considers mistaken.
Carolyn Reinach Wolf, another Great Neck attorney, represents a number of hospitals and nursing homes, which, she said, have had repeated problems interpreting living wills.
"I always talk about not doing living wills because they are very narrow, inflexible legal documents," Wolf said. "With health care proxies, at least you're dealing with a person - a living, feeling someone who cares about your preferences."
Birth of living will
The popularity of living wills grew out of the Missouri case of Nancy Cruzan, who was 24 in 1983 when a car accident left her in a persistent vegetative state. Cruzan's parents filed a lawsuit seeking an end to the feeding tube that kept her alive.
After a long court battle, a Missouri judge who heard testimony from people who knew Cruzan ruled she would not have wanted to be kept alive in a vegetative state and ordered her feeding tube removed. Cruzan died in December 1990, 12 days after her parents won the right to remove the tube.
The Cruzan case led Congress to pass the Patient Self-Determination Act, co-sponsored by then-Sen. Daniel Patrick Moynihan (D-N.Y.). The law required hospitals and nursing homes to inform patients of their right to prepare living wills and other advance directives concerning health care.
Myra Christopher, president of the Kansas City, Mo., Midwest Bioethics Center, agrees that living wills haven't lived up to expectations. The Midwest Center consulted with both the Cruzan family and Missouri state officials during the case.
"There's a mountain of data that show they do not do what we thought they would do," Christopher said. "With the living wills, it was thought who better than the person themselves to say what they wanted. The reality is that hasn't been accomplished."
Charles Sabatino, an attorney and assistant director of the American Bar Association's Commission on Law and Aging, uses this comparison in advising clients to steer clear of living wills: "You can't provide cookbook directions. Dying is too complicated, and none of us have a crystal ball to tell us what we will encounter far down the road." link (http://www.nynewsday.com/news/health/ny-hswill063860904jun21,0,5937302.story) This was discussed on Discovery Health the other day (yes, I am watch too much television... need to get a job) and the view of the show was that you shouldn't use a living will, but you should let your family members understand your reasons and hope that they follow them. More often than not, the living wills are ignored.
BY KATHLEEN KERR
STAFF WRITER
June 21, 2004
The living will, long touted as a way to prevent technology from complicating death and artificially prolonging life, has outlived its usefulness, a growing number of medical and legal experts say.
For more than two decades, wary Americans have been using the documents to state their health care preferences in anticipation of a time when they can't do so.
The usual reason for a living will has been to avoid the arsenal of ventilators and feeding tubes that can keep seriously ill patients alive, sometimes in a persistent vegetative state.
But experts say the concept is obsolete.
"It's [the living will] a virtual failure," said Thomas Murray, president of The Hastings Center, a bioethics institute in Garrison, N.Y. "The living will is particularly ill-designed to do what you want it to do. Any tiny crack can be enough to destroy the entire foundation of that document."
Since their inception, living wills have exhibited flaws: People with living wills don't always tell their relatives about them, so their wishes remain unknown. Hospitals find the wills difficult to interpret: a stated preference not to receive artificial nutrition when brain-dead may not apply if a person is comatose. And it's difficult to address all possible end-of-life situations in a living will - especially as life-sustaining technology continues to evolve.
Recently, two University of Michigan researchers, writing in the bimonthly Hastings Center Report, a journal that examines issues in medical ethics, concluded that living wills are useless.
"It's very hard for people to predict their preferences for an unknown health condition," said Angela Fagerlin, a research scientist and co-author of the article. In addition, "decision makers have a difficult time interpreting [living wills]," Fagerlin said.
And Carl Schneider, a law professor and Fagerlin's co-author, says: "In lots of ways, the unsolvable problem is that writing down your intentions clearly is a lot harder than people think it is."
The case of Ellen Haymes, a Brooklyn woman who shot herself in a 1993 suicide attempt, illustrates the problems. The decision in that case reinforced New York State's strict interpretation of right-to-die case law.
Haymes was rushed to The Brookdale University Hospital and Medical Center, underwent emergency surgery and was placed on a ventilator. Her sister produced Haymes' living will and asked the hospital to disconnect the ventilator. Brookdale refused.
Haymes lived and made a partial recovery but was left blind. Later, Haymes and her sister sued the hospital. Steven Mandell, a Manhattan attorney who represented the hospital, said on Thursday that treatment was already under way when the sister arrived and that "the so-called living will is not an instrument which is enforceable in the state of New York. There was no obligation to follow the so-called will."
In 2001, the Appellate Division of State Supreme Court ruled that Brookdale had acted appropriately and that Haymes' living will did not clearly state her wishes, that she did not have the required two witnesses, and that she had no valid health-care proxy.
Designating a proxy
In the current Florida case of Terry Schiavo - whose feeding tube is keeping her alive - there is no living will or any other form of advance directive that could provide guidance as her parents and husband battle over whether to remove the feeding tube. Attorneys say that advance directives - like health care proxy statements or durable powers of attorney - now are either replacing or supplementing living wills as legal instruments that allow people to designate someone to make medical decisions for them.
New York State's health care proxy statute was enacted in 1991. Robert Kurre, a Great Neck attorney who specializes in elder law, said he urges clients to name a such a proxy - a person who will act in their stead should they become unable to speak for themselves - in addition to having a living will. He also tells clients to add a statement concerning their wishes on artificial feeding to any proxy statement.
"If you check yourself into a hospital or nursing home, it's [the health care proxy] the document they want to see," said Kurre, explaining it's more effective to have a health care proxy who can make decisions for you in the event that unanticipated health care questions arise.
By themselves, Kurre said, living wills are a "recipe for disaster."Ira Calderon, a wholesale insurance broker who lives in Great Neck, has followed Kurre's advice. Calderon, 43, said a family member urged him to document his medical preferences and he now has both a living will and a health care proxy.
"I just want to make sure if I'm ever disabled and unable to make a decision myself, I want to make sure these wishes are taken care of," Calderon said.
Kurre said some lawyers with general practices still counsel clients that living wills are enough - advice that he considers mistaken.
Carolyn Reinach Wolf, another Great Neck attorney, represents a number of hospitals and nursing homes, which, she said, have had repeated problems interpreting living wills.
"I always talk about not doing living wills because they are very narrow, inflexible legal documents," Wolf said. "With health care proxies, at least you're dealing with a person - a living, feeling someone who cares about your preferences."
Birth of living will
The popularity of living wills grew out of the Missouri case of Nancy Cruzan, who was 24 in 1983 when a car accident left her in a persistent vegetative state. Cruzan's parents filed a lawsuit seeking an end to the feeding tube that kept her alive.
After a long court battle, a Missouri judge who heard testimony from people who knew Cruzan ruled she would not have wanted to be kept alive in a vegetative state and ordered her feeding tube removed. Cruzan died in December 1990, 12 days after her parents won the right to remove the tube.
The Cruzan case led Congress to pass the Patient Self-Determination Act, co-sponsored by then-Sen. Daniel Patrick Moynihan (D-N.Y.). The law required hospitals and nursing homes to inform patients of their right to prepare living wills and other advance directives concerning health care.
Myra Christopher, president of the Kansas City, Mo., Midwest Bioethics Center, agrees that living wills haven't lived up to expectations. The Midwest Center consulted with both the Cruzan family and Missouri state officials during the case.
"There's a mountain of data that show they do not do what we thought they would do," Christopher said. "With the living wills, it was thought who better than the person themselves to say what they wanted. The reality is that hasn't been accomplished."
Charles Sabatino, an attorney and assistant director of the American Bar Association's Commission on Law and Aging, uses this comparison in advising clients to steer clear of living wills: "You can't provide cookbook directions. Dying is too complicated, and none of us have a crystal ball to tell us what we will encounter far down the road." link (http://www.nynewsday.com/news/health/ny-hswill063860904jun21,0,5937302.story) This was discussed on Discovery Health the other day (yes, I am watch too much television... need to get a job) and the view of the show was that you shouldn't use a living will, but you should let your family members understand your reasons and hope that they follow them. More often than not, the living wills are ignored.