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

In Cruzan, the Supreme Court noted that it had previously decided that "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. "39 The Court stated that one of the primary means of protecting this notion of bodily integrity is the informed consent doctrine.40 Justice (then Judge) Cardozo's famous expression of this doctrine states: "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."4' The Cruzan Court decided that a "logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment."42

The Supreme Court in Cruzan, however, did not rely solely on the common law in recognizing a right to die. The Court noted that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. "3 All nine Justices agreed on the existence of this liberty interest, disagreeing only on how it should be balanced with the State's expressed interests.'

In her concurrence, Justice O'Connor stated:

I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions and that the refusal of artificially delivered food and water is encompassed within that liberty interest.

. . . Requiring a competent adult to endure [procedures for artificial hydration and nutrition] against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment.

Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.45

The right to die has also become firmly entrenched in state statutory law. California became the first state with a "living will" statute when it enacted the Natural Death Act in 1976.46 In the findings and declarations portion of the statute, the California legislature stated:

(a) an adult person has the fundamental right to control the decisions relating to the relevancy of his or her own medical care, including the decision to have life-sustaining treatment withheld or withdrawn in instances of a terminal condition or permanent unconscious condition.

(b) modern medical technology has made possible the artificial prolongation of human life beyond natural limits.

(c) in the interest of protecting individual autonomy, such prolongation of the process of dying for a person with a terminal condition . . . may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.