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Who's in Charge in the Intensive Care Unit?

  • Anthony L. DeWitt

Every competent patient has the right to decide what will and what will not be done to him or her.2 As one jurist put it, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.”3 When a patient is alert, of sound mind, competent, and able to make his or her own decisions, there is no question that the physician must follow that person's directions even if the ultimate outcome — death — is not the result that the physician or health care organization desires or intends.4

Keywords

Nursing Home Persistent Vegetative State Trial Court Competent Patient Durable Power 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    Cruzan v. Director, Missouri Department of Health, 497 US 261 (1990).Google Scholar
  2. 2.
    End-Of-Life Care: Forensic Medicine V. Palliative Medicine, 31 J.L. Med. & Ethics 365 (2003 WL 23114200).Google Scholar
  3. 3.
    Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129–30, 105 N.E. 92, 93 (1914).Google Scholar
  4. 4.
    Brief of Amici Curiae not dead yet et al., Jeb Bush v. Michael Schiavo, 20 Issues L. & Med. 171 (2004 WL 3135533). See also A Line Already Drawn: The Case For Voluntary Euthanasia After The Withdrawal Of Life-Sustaining Hydration And Nutrition, 38 Colum. J.L. & Soc. Probs. 201 (2004 WL 3113773).Google Scholar
  5. 5.
    Durable Powers Of Attorney—They Are Not Forms! 24 Tax Mgmt. Est. Gifts & Tr. J. 211 (1999).Google Scholar
  6. 6.
    Limiting A Surrogate’s Authority To Terminate Life-Support For An Incompetent Adult, 79 N.C. L. Rev. 1815 (2001 WL 1628930).Google Scholar
  7. 7.
    § 537.080 R.S.Mo. (2004) states “Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death”.Google Scholar
  8. 8.
    Death and Dying: Opposing Viewpoints, (Reviewed), 19 Issues L. & Med. 310 (2004 WL 1241810).Google Scholar
  9. 9.
    In re Guardianship of Schiavo, 792 So.2d 551 (Fla. App. 2. Dist., 2001).Google Scholar
  10. 10.
    Manuel Roig-Franzia, Long Legal Battle Over as Schiavo Dies, Washington Post, Apr. 1, 2005, found at http://www.washingtonpost.com/wp-dyn/articles/A15423–2005Mar31.html. See also Dynamic Complementarity: Terri’s Law And Separation Of Powers Principles In The End-Of-Life Context, 57 Fla. L. Rev. 53 (2005 WL 15314).
  11. 11.
    Autopsy results have indicated that Terry Shiavo was not capable of thought at the end of her existence, and thus, this author does not believe that she had “life” as that term is commonly used. She was biologically interacting with her environment; nothing more.Google Scholar
  12. 12.
    Roig-Franzia, supra, note 10.Google Scholar
  13. 13.
    Advance Directives: Taking Control Of End-Of-Life Decisions, 14 St. Thomas L. Rev. 5 (2001 WL 1556169); Advance Medical Directives And The Authority To Compel Medical Treatment, 29 Colo. Law. 59 (Mar 2000).Google Scholar
  14. 14.
    Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals, (Reviewed), 28 J. Psychiatry & L. 281 (2000).Google Scholar
  15. 15.
    A guardian is charged with looking out for the patient’s needs and welfare, and is empowered to make medical decisions. A conservator is limited to looking after and “conserving” the patient’s funds and property. A conservator is not empowered to make healthcare decisions unless the order granting the conversatorship specifically states.Google Scholar
  16. 16.
    Had a Public Administrator been appointed in the Schiavo case early on, it would have ended without fanfare many years earlier.Google Scholar
  17. 17.
    See In re Guardianship of Schiavo, No. 90–2908-GD, 1996 WL 33496839 (Fla. Pinellas Cir. Ct. Feb. 11, 2000) (order authorizing discontinuation of artificial life support); In re Guardianship of Schiavo, 780 So.2d 176 (Fla. 2d DCA 2001) (Schiavo I), review denied, 789 So.2d 348 (Fla. 2001); In re Guardianship of Schiavo, 792 So.2d 551 (Fla. 2d DCA 2001) (Schiavo II); In re Guardianship of Schiavo, 800 So.2d 640 (Fla. 2d DCA 2001) (Schiavo III), review denied, 816 So.2d 127 (Fla. 2002); Schindler v. Schiavo ex rel. Schiavo, 829 So.2d 220 (Fla. 2d DCA 2002) (table citation denying motion); In re Guardianship of Schiavo, No. 90–2908-GD-003, 2002 WL 31876088 (Fla. Cir. Ct. Nov. 22, 2002); In re Guardianship of Schiavo, No. 90–2908-GB-003, 2002 WL 31817960 (Fla. Cir. Ct. Nov. 22, 2002); Schiavo v. Schiavo, No. 8:03-cv-1860-T-26TGW, 2003 WL 22469905 (M.D.Fla. Sept. 23, 2003); In re Guardianship of Schiavo, 851 So.2d 182 (Fla. 2d DCA 2003) (Schiavo IV), review denied, 855 So.2d 621 (Fla. 2003); Schindler v. Schiavo, 865 So.2d 500 (Fla. 2d DCA 2003) (table decision denying prohibition); Advocacy Ctr. for Persons with Disabilities, Inc. v. Schiavo, 17 Fla. L. Weekly Fed. D291, 2003 WL 23305833 (M.D. Fla. Oct. 21, 2003); Schiavo v. Bush, No. 03–008212-CI-20, 2003 WL 22762709 (Fla.Cir.Ct. Nov. 4, 2003); Bush v. Schiavo, 861 So.2d 506 (Fla. 2d DCA 2003); Schiavo v. Bush, No. 03–008212-CI-20, 2004 WL 628663 (Fla. Cir. Ct. 2004); Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004); Schindler v. Schiavo, 866 So.2d 140 (Fla. 2d DCA 2004); Bush v. Schiavo, 871 So.2d 1012 (Fla. 2d DCA 2004); Schiavo v. Bush, No. 03–008212-CI-20, 2004 WL 980028 (Fla.Cir.Ct. May 5, 2004); Bush v. Schiavo, 885 So.2d 321 (Fla. 2004), cert. denied, — U.S. —, 125 S.Ct. 1086, — L.Ed.2d — (2005); Schindler v. Schiavo, No. 2D04–3451, — So.2d —, 2004 WL 2726107 (Fla. 2d DCA Nov. 24, 2004) (table decision); In re Guardianship of Schiavo, No. 90–2908-GD-003, 2005 WL 459634 (Fla. Cir. Ct. Feb. 25, 2005).Google Scholar

Copyright information

© Springer Science+Business Media, LLC 2008

Authors and Affiliations

  • Anthony L. DeWitt
    • 1
  1. 1.Attorney, Bartimus, Frickleton, Robertson & Gorny, PCJefferson CityUSA

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