Jan 12, 2014

Recent cases show importance of considering end-of-life issues in your estate plan

Modern medical advances continue to blur the line between life and death. Think of the phrases that have entered our vocabulary in recent years: brain death, persistent vegetative state, minimal consciousness. These are terms that reflect today's evolving medical realities. The good news is that medicine now gives those who might otherwise die a chance to recover. The bad news is that irreversibly incapacitated people can be kept alive for prolonged periods, plunging patient and family into a medical no-man's-land.

You probably want to control your own destiny during your lifetime - and during the dying process, too. Since you are likely to be uncommunicative at the end, and since the "end" can now mean  weeks, months and even years, it is essential to put your wishes for treatment in writing, and to share your wishes with your loved ones. Besides a health care power of attorney authorizing someone else to make your health care decisions, a living will can convey your wishes for treatment if you are ever in a persistent vegetative or end state with no hope of recovery. With your preferences in writing and furnished to your doctors and loved ones, you are more likely to get the care you do want, and not be forced to have the care you don't want. It will also ease some of the trauma your decision-makers will undoubtedly feel, and help unite family members who may have different values and views on what should be done.

Consider these recent cases, one very personal to me, that underscore the now blurry line between life and death, and its impact on patient and family:

Thirteen-year-old Jahi McMath was declared brain dead on Dec. 12, 2013 by the coroner's office after a cardiac arrest following a tonsillectomy at an Oakland, California Hospital. Neurologists have confirmed that she cannot breathe on her own, has had no blood flow or electrical activity in her brain. The family has fought successfully thus far to keep the girl on a ventilator; they argue that since her heart is beating, she is, effectively alive. According to medical experts, bodies of brain-dead individuals can be maintained on respirators for months, or in years in rare cases. Obviously, a 13-year-old has no legal authority to have executed a living will or other legal documents, and the decision is up to her parents or the courts. But this tragedy could have as easily befallen a 23- or 83- year-old.

In Texas, Marlisle Munoz, 33, has been on life support since suffering a brain hemorrhage on November 26, 2013. She was 14 weeks pregnant at the time. Her husband, a paramedic and firefighter, has requested that she be removed from life support, arguing that his wife, also a paramedic, would not wish to be kept alive by artificial means. The hospital has this far refused to honor his wishes, citing a Texas law that prohibits the withdrawal of life-sustaining support from a pregnant patient. The woman's family is in agony and will be bringing legal action. The patient's parents also are asking to have her life support removed. "They're prolonging our agony," her father has told journalists.  

Update 1/14/14:  Read Munoz v. John Peter Smith Hospital.

Update 1/24/14: Texas judge orders Munoz off life support, hospital complies

Further afield, Ariel Sharon, the former Prime Minister of Israel, just passed away after spending eight years in a coma following a stroke. Unlike the cases above, Sharon was not brain dead; his doctors said brain scans revealed responses to his family's voices, and his son reported that Sharon could move his fingers when requested to do so. Sharon simply never woke up, and since 2006 was kept alive with a feeding tube, dialysis, and as recently as last year, surgery related to a kidney infection.

Lastly and on a personal note, my brother-in-law passed away on September 5, 2013. This vital man had fallen and hit his head near his home in New York. Herb suffered a cerebral hemorrhage and fell into a coma. His daughter and my wife were his health care co-decision makers.  After several days, when it became clear there was no chance of any meaningful recovery, they came to the painful decision to remove artificial ventilation. It was an incredibly difficult decision on an emotional level, but because he had put his wishes into a living will, and his health care power of attorney indicated that he was more interested in retaining quality of life over quantity of life, there was no question in their minds about what he would have wanted. Thank you for giving our family that final gift, Herb, and rest in peace.

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