Better off dead than disabled?: Should courts recognize a "wrongful living" cause of action when doctors fail to honor patients' advance directives?

Washington and Lee Law Review, Winter 1997 by Adam A Milani

Not all courts have agreed, however, that life with a disability is better than no life at all. Part IV of the Article discusses how the debate on the right to die, assisted suicide, and wrongful life reflects societal prejudice towards persons with disabilities.25 The Article examines the historical view that life with a disability is not worth living as reflected in both popular culture' and right-to-die case law. I7 This view still predominates, but courts have recently recognized the impact of this prejudice and the lack of support services for persons with disabilities in deciding right-to-die and assisted suicide cases.'

Part V argues that courts should be "attuned to the worth of an individual irrespective of physical or mental handicap,"29 and that therefore they should reject a wrongful living cause of action.30 Courts should reject wrongful life claims because: (1) "legal recognition that a disabled life is an injury would harm the interests of those most directly concerned, the handicapped;"3' (2) the question of whether one would be better off dead is one that courts are not equipped to handle and is antithetical to "the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence;"32 (3) it is impossible to calculate compensatory damages based on the comparison between life with a disability and death; and (4) there are adequate remedies available under traditional tort principles for patients whose refusal of treatment has not been honored.

I. Recognition of the Right to Die: From Quinlan to Cruzan to Assisted Suicide

Advances in medical technology have made it possible for people to live longer than ever before.33 It is now possible for patients to continue living for years even when much of their physical and mental capacity has been irrevocably lost. Some have questioned the "quality" of those lives, however, and beginning in the 1970s, patients and their families began "asserting a right to die a natural death without undue dependence on medical technology or unnecessarily protracted agony - in short, a right to `die with dignity. "'I Courts have recognized this right based on two grounds: (1) the constitutional right to be free from an invasion of one's bodily integrity, including unwanted medical treatment, and (2) a common-law right to refuse medical treatment.

A. The Recognition of the Right to Die

The first courts to recognize a right to die based their rulings on the constitutional right to privacy. In In re Quinlan,35 the New Jersey Supreme Court concluded:

Although the Constitution does not explicitly mention a right of privacy, Supreme Court decisions have recognized that a right of personal privacy exists and that certain areas of privacy are guaranteed under the Constitution.

. Presumably this right is broad enough to encompass a patient's decision to decline medical treatment under certain circumstances ....36 A number of courts followed Quinlan and found that the right to die was within the right to privacy under the United States Constitution or the individual state's constitution.3' After Quinlan, however, most courts have found a right to die based either solely on informed consent principles or on both the right to informed consent and a constitutional privacy right.38