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

(d) In recognition of the dignity and privacy that a person has a right to expect, the Legislature hereby declares that the laws of the State of California shall recognize the right of an adult person to make a written declaration instructing his or her physician to withhold or withdraw lifesustaining treatment in the event of a terminal condition or permanent unconscious condition, in the event that the person is unable to make those decisions for himself or herself.4'

Almost every state has now adopted a living will statute that permits competent adults to execute advance directives stating that they do not wish to be kept alive by medical treatment in the latter stages of a terminal illness or if they become permanently and irreversibly unconscious.48 In addition, many states allow patients to delegate decisionmaking power to a surrogate through a durable power of attorney, health care proxy, or similar device, or permit courts to appoint surrogate decisionmakers.49 Federal statutory law also favors permitting adult patients to refuse life-sustaining treatment by advance directive, which requires hospitals receiving federal financial support to notify adult patients of their right to execute such instruments upon admission.'

B. Beyond the Right to Die?: Assisted Suicide

Two federal appellate courts have recently pointed to Cruzan and the federal and state statutory law and held that recognition of the right to die by courts and legislatures precludes the banning of physician-assisted suicide.5' The two courts disagreed, however, on whether the right to die necessarily includes a right to physician-assisted suicide.

In Compassion in Dying v. Washington, 52 the United States Court of Appeals for the Ninth Circuit found a right to physician-assisted suicide in the liberty interest of the Fourteenth Amendment Due Process Clause.53 The court reviewed the various opinions in Cruzan and concluded:

Cruzan stands for the proposition that there is a due process liberty interest in rejecting unwanted medical treatment, including the provision of food and water by artificial means. Moreover, the Court majority clearly recognized that granting the request to remove the tubes through which Cruzan received artificial nutrition and hydration would lead inexorably to her death. Accordingly, we conclude that Cruzan by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognizes a liberty interest in hastening one's own death.'

While acknowledging "that in some respects a recognition of the legitimacy of physician-assisted suicide would constitute an additional step beyond what the courts have previously approved,"55 the court stated that "we see no ethical or constitutionally cognizable difference between a doctor's pulling the plug on a respirator and his prescribing drugs which will permit a terminally ill patient to end his own life. "I Accordingly, the appellate court struck down Washington's statute banning assisted suicide as unconstitutional as applied to competent, terminally ill patients who wish to hasten their deaths with physician-prescribed medication.5'