HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, November 26, 2004

Living Wills: Do They Work?

In the March/April 2004 issue of The Hastings Center Report, Carl Schneider and Angela Fagerlin wrote a piece entitled, "Enough: The Failure of the Living Will."  For reasons best known to the Associated Press (slow news day?), Laura Meckler of the AP ran a story on this topic on Thanksgiving Day. 

The criticisms of the living will are straightforward and well-known:

  • "[E]nd-of-life medical questions often involve much more complicated medical and moral questions. Many living wills are so vague as to be useless."
  • "People change their minds after they write their living wills but don't update them."
  • "Many living wills never make it to the bedside, left in a file cabinet or safety deposit box."
  • "And family and doctors often do a poor job of deciphering the patient's wishes even when they have the wills in hand."
  • "Since 1990, hospitals have been required in most states to offer all patients the chance to fill out a living will. But despite the law and despite several high-profile end-of-life legal disputes, most people still don't have living wills."

On the other hand, "Naomi Naierman, president of the American Hospice Foundation, acknowledged there can be problems with living wills and other end-of-life plans. But doing nothing is far worse, she said.

"'You're only leaving a mess behind if you don't have directives for when you cannot speak on your own behalf,' said Naierman, whose organization promotes living wills. 'It's a terrible burden to leave with the family.'"

The article provides a lengthy vignette that is supposed to illustrate the limitations of living wills:

Jeanne and James Hanchett thought they were prepared. Both physicians, they had filled out living wills saying they did not want extraordinary treatments. Each had given the other legal power to make medical decisions.

While watching his beloved Pittsburgh Steelers play at Three Rivers Stadium, James Hanchett's head fell onto his wife shoulder. Mrs. Hanchett and bystanders tried to revive him. "There was no response at all," she said.

Paramedics arrived about 25 minutes after he suffered the heart attack and put a tube into his lungs to get them moving again. But Mrs. Hanchett, a semiretired pediatrician, knew it was too late.

At the emergency room, she told the doctor to stop resuscitation attempts. He refused, saying, "'If it were my mother or wife, I would want this to continue,'" Mrs. Hanchett recalled.

She said the doctor dismissed her when she told him that her husband had a living will and that she had power of attorney.

"So I turned on my heel and walked out. I didn't want to start screaming and yelling. I had to call our children," she said.

It was 29 hours before she succeeded in persuading doctors to remove the equipment.

"I'm a bit angry, mostly frustrated," she said, a year later. "We had done everything we thought we should do and it was ignored."

What this illustrates, however, is that if you call 911, you can expect the paramedics to do what they are trained and required by law to do: attempt to resuscitate.  Living wills aren't designed to overcome this problem.  That's what nonhospital DNR's are for.

As Schneiderman and Fagerlin suggest, the better answer may be the medical power of attorney.  Personally, I usually recommend both the MPA and the living will, for a variety of reasons.  There is no question that the living will hasn't, and often won't, solve subtle treatment problems.  But is it better than nothing?  I tend to agree with Naomi Naierman.  And in tandem with an MPA, the living will can be better yet.

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