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By Kenneth Kirk
For Senior Voice 

The patient, the surrogate and the pulled plug


March 1, 2018

This is a subject which, for a lot of people, is going to touch on some very personal, and perhaps painful, circumstances.

Some years back, I was involved in a case involving termination of life support, which went all the way to the Alaska Supreme Court. It was a horrible case for everyone involved.

A middle-aged lady had choked on some food, and suffered anoxia (lack of oxygen to the brain). A mere nine days later, the doctors wanted to end all life support, insisting that she was never going to come out of the coma. The family wanted to give it some more time. The case was fast-tracked by the judge, there was an appeal, and the Supreme Court sent it back to the trial judge for further hearing. All of that happened in a little over a month, which is basically the blink of an eye in terms of how much time this kind of thing usually takes.

One of the things that was absolutely flabbergasting about the case, was that the doctors simply ignored the law. The lady did not have an advance directive, but there is a statute which tells us who gets to make decisions if there is no such directive. But they ignored the statute, and withdrew support without the permission of the family, or her guardian, or anyone else (until the judge forced them to reconnect it, a few hours later).

I think about this case regularly, especially when I am nagging people to get their own advance directives in place. I thought about it particularly, though, when I read about a recent case from California.

The case, Stewart v. Superior Court, involved the opposite situation. In the case in which I was involved, the family wanted to continue life support and the doctors wanted to terminate it. In this California case it was the doctors wanting to perform a pacemaker operation they felt could extend the patient’s life, and his designated agent (on his advance directive) telling them not to do it. The doctors had a meeting of their ethics committee, and decided they should perform the operation, and did it without telling this gentleman’s designated agent.

Unfortunately, the patient died shortly after the operation, and his estate sued the doctors. The judge threw out the case, but the appellate court reinstated it, saying that if the doctors ignore the decision of someone’s designated agent, they can be held liable, not only for medical malpractice but for elder abuse as well.

This interested me, not just because I was involved in a case that was sort of similar (at least to the extent of the doctors ignoring the decision of the person who was supposed to be making it), but also because, when I talk to people about surrogate medical decision-making, I hear a variety of similar stories. Sometimes they tell me that the doctors refused what might have been life-saving procedures. Other times they tell me of doctors insisting on procedures when the designated agent was asking that they let the person go. For instance, I don’t think I will ever forget a story one client told me, of a doctor insisting on a colonoscopy for a woman in her late 80s who was terminal regardless.

For a lot of people, this is about whether you should fight to keep people alive, or, at a certain point, let them go. Not for me. For me, this is about personal autonomy. It should not be the decision of the doctors, any more than it should be the decision of the lawyers, the judges, or any particular busybodies who might be hanging around.

When my time comes, I hope to be able to make my own decision. I don’t know whether I will want to fight to hang on, or decide to let go. It will probably depend on my diagnosis. What I do know, though, is that if I have made the decision already, everybody had better (expletive deleted) follow my directions.

And if I cannot make that decision myself, but I have delegated decision-making authority to someone else, they had better do what she tells them to do.

There is a legal procedure available, if the doctors think that the agent is not following the expressed wishes of the patient. Before taking any irrevocable action, they can ask a judge to overrule the agent. But the judge can only do that if there is some reason to think that the patient wanted something completely different from what the agent is insisting on.

Until then, the doctors have to do what the patient (or the patient’s designated agent) wants them to do.

But perhaps it will take a lawsuit in Alaska to teach them that.

I almost forgot to tell you how my case came out. After the Supreme Court remanded it, and contrary to the predictions of a passel of neurologists, the patient woke up from the coma. At that point, the case settled.

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account.


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