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RIGHT TO DIE 'A VERY GRAY AREA' IN N.Y. LIVING WILL IS ONE WAY TO MAKE WISHES KNOWN

THE U.S. Supreme Court justices made it sound so simple.
Those who want to die with dignity instead of being kept alive indefinitely should put their wishes in writing, the justices ruled this week. These "living wills," as they are called, give doctors and judges enough information to take life-support systems away, giving the sick the right to die.

That's not how it works in New York State, say those familiar with ongoing battles of patients and their relatives who want to choose how they die.

"Because we have no statute in New York, what we're dealing with is a very gray area," said Erie County Surrogate Joseph S. Mattina, who said he has been "bombarded" during public appearances with right-to-die questions more than any other issue.

Ruling on a Missouri law, the Supreme Court decided not to allow the family of a permanently unconscious Missouri woman to remove the patient's life-support system.

By a 5-4 vote, the justices ruled that the family could force doctors to stop artificial feeding only if there were "clear and convincing evidence" of the woman's wishes.

Most saw this decision as a sign that patients should give courts and doctors specific directions on how they want to be treated.

Living wills are the accepted way to do so.

Despite years of deliberation, New York State has no living-will law. A bill that would allow patients to designate someone to make those decisions for them when they are unable to do so is bogged down in legislative committee.

Until one of those laws is adopted, lawyers and judges said, those who worry that medical technology will keep them alive against their wishes have to negotiate a legal and medical maze. They can improve their chances of choosing the way they die. But even if they do everything right, no one can say whether the patients will have their way.

"There is no statute to enforce," said Caroline Buerk, an estates lawyer and partner with the law firm Phillips, Lytle, Hitchcock, Blaine & Huber. "But if you can show the courts clear and convincing evidence of your intentions, then (the courts) will generally follow it."

Living wills should be drawn up by lawyers, attorneys and Mattina say. Agencies such as the Society for the Right to Die and some businesses give out forms to guide people interested in making living wills. But the do-it-yourself method carries too many risks, professionals said.

"If it's not drawn up by a lawyer, I'm not sure you're giving the courts the language needed to allow them to make these kind of decisions," said Gayle L. Eagan, an estates lawyer with Jaeckle, Fleischmann & Mugel.

"Some of them may be pretty good," said Susan Egloff, a partner at Hodgson, Russ, Andrews, Woods & Goodyear. "Even if you have that form, you should have an attorney familiar with trusts and estates review it."

Those drawing up living wills must also guess the way they will die. If the will specifies that one kind of artificial life-support system not be used, and doctors use another kind, the courts could say the living will does not apply.

"The living will must be extremely specific so there is no question as to what the intent of the dying person was when he or she was competent," Mattina said. "Let's say I write five specific ways I want my tubes disconnected, and I leave out the sixth. What do I do now? I've now got a Supreme Court decision and no law in the State of New York. I'm in a real quandary."

Ms. Eagan said the living wills she draws up are eight pages long, detailing the exact kind of treatment to be refused and stating that this is not an exclusive list.

Some living wills are grids resembling game boards. A patient checks boxes to identify under which circumstances he wants to be kept alive and those under which he wants to refuse treatment. But judges have no way of knowing whether the patient made the check mark, Ms. Eagan said.

The living will must also guard against medical procedures that did not exist when the patient drew up the will, Ms. Egloff said.

Doctors said they often agree in principle that patients should not be allowed to die. But the threat of lawsuits often forces them to work against a family's wishes.

"We're concerned because the legal profession has been after us with medical malpractice suits," said Dr. David C. Dean, chairman of the ethics committee at Buffalo General Hospital. "Almost everything we do now, in the back of our minds we're thinking, 'What would happen if I were in a courtroom and had to defend this decision?' "

Every lawyer interviewed was reluctant to say how much it costs to draw up a living will. Sometimes it is done as part of estate planning. It may take hours of work to anticipate every possible circumstance, they said.

Mrs. Buerk said the Erie County Bar Association and Erie County Medical Association are considering giving seminars on living wills.

But Mattina said that overlooks the real solution.

"I can't help but ask the question everyone is asking," Mattina said. "Why hasn't the right-to-die legislation been passed by the State Legislature? I have yet to hear any sensitive, logical reason why."

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