Research Article| Volume 2, ISSUE 1, P123-132, January 1986

The Law and Intensive Care

The Role of the Courts in the Ethical Decision-Making Process
  • David A. Smith
    Corresponding author: New York State Department of Law, 190 Willis Avenue, Mineola, New York 11501
    Assistant New York State Attorney General, New York State Department of Law, Mineola, New York
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      As intensive care decision making has become more complex in light of continuing technologic advances, our legal system has become increasingly involved in defining the legal parameters of the decision-making process. Although the law differs substantially from state to state, certain standards of broad applicability appear to be emerging. The medical community must strive to ensure that it is responsive to the legitimate need of government to set appropriate standards, in order to forestall the imposition of unnecessarily restrictive standards.
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        • President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research
        Deciding to Forego Life-Sustaining Treatment. U.S. Government Printing Office, Washington, D.C1983
        • Duff R.S.
        • Campbell A.G.M.
        Moral and Ethical Dilemmas in the Special-Care Nursery.
        N. Engl. J. Med. 1973; 289: 890
      1. Newsweek. 1973; (November 12)
      2. In re. Infant Doe, No. GU8204-00 (Cir. Ct., Monroe County, Ind., April 12, 1982); writ of mandamus dismissed sub nom. State ex rel Infant Doe v. Baker, No. 482 S 140 (Indiana Supreme Ct., May 27, 1982). It should be noted that there have been many-cases over the years involving nontreatment decisions made for religious reasons, in which the courts have uniformly held that parents cannot refuse medical care for their infant children of any life-threatening condition for purely religious reasons. See, e.g., Matter of Sampson, 29 N.Y.2d 900; Matter of Hofbauer,47 N.Y.2d 648.

      3. 47 Fed. Reg. 26,017 (1982); 48 Fed. Reg. 9630 (1983) (modifying 45 C.F.R. §84.61).

      4. American Academy of Pediatrics v. Heckler, 561 F. Supp. 395 (D.D.C., 1983).

      5. Court testimony at trial, in which the author represented the hospital, revealed that the parents had been advised by the child’s neonatologist that even if the dual surgical procedures were performed, the child was likely to have little or no cognitive function, would likely be restricted to bed for life, and would experience near-constant pain throughout her life. This diagnosis has since been the subject of much discussion and disagreement, primarily by individuals who have never had any part in the child’s care. It is clear, in any case, that this was the diagnosis conveyed to the parents shortly after the child’s birth.

      6. Unreported decision in Weber v. Stony Brook Hospital (Supreme Ct., Suffolk County, New York, Oct., 1983).

      7. Weber c. Stony Brook Hospital et al, 95 A.D.2d 587 (2nd Dept., 1983).

      8. Weber v. Stony Brook Hospital et al, 60 N.Y.2d 208 (1983).

      9. 29 U.S.C. §794; Pub.L. 93-112, Title V, *504, Sept. 26, 1973, 87 Stat. 394.

      10. U.S.A. v. University Hospital, 575 F.Supp.607 (EDNY, 1983).

      11. U.S.A. v. University Hospital, 729 F. 2nd 144 (2nd Cir., 1984).

      12. Unreported decision in Washburn v. Abrams et al., (NDNY, 1983).

      13. Child Abuse Amendments of 1984, pp. H9085-9087, Congressional Record, Sept. 19, 1984. The amendments require, inter alia, that an infant’s life-threatening condition(s) be treated by the method which, in the treating physician’s “reasonable medical judgment, will be effective in ameliorating or correcting all such conditions.” There are several listed circumstances under which such treatment would not be required by the law, most having to do with situations in which treatment would only prolong the dying process.

      14. Deciding to Forego Life-Sustaining Treatment, supra, at 121.

      15. Matter of Storar, 52 N.Y.2d 313 (1983).

      16. Two states that have addressed the issue with some clarity are New Jersey and Massachusetts. See In re. Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); In re. Dinerstein, 380 N.E.2d 134 (1978).

      17. In re. Quinlan, supra.

      18. In three trial level cases litigated in New York by the author during the past two years, family members of once competent patients who had become irreversibly comatose testified that prior to becoming incompetent their relative had clearly expressed an aversion to being maintained by a respirator if there were no hope for recovery of basic cognitive function. As two of the cases involved patients who were young and healthy prior to being stricken with sudden illnesses, it was somewhat surprising testimony. The Karen Quinlan case appeared to have triggered family discussions of medical treatment in two of the three cases.

      19. Most courts consciously avoid being drawn into the politically charged “quality of life” issues if they are characterized as such. Cf. Weber o. University Hospital. 95 A.D.2d 587 (1983). Nevertheless, if such terminology is avoided, the courts have shown a clear tendency to consider the long-term prognosis for seriously ill patients facing various treatment options.

      20. Cf. Matter of Storar. supra; Schloendorff v. Society of New York Hospital. 211 N.Y. 125.

      21. Application of President of Georgetown College, Inc., 331 F2d 1010. cert. den. 377 U.S. 978 (1964); Memorial Hospital et al. v. Anderson, 42 N.J. 421, cert. den. 377 U.S. 985 (1964).