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Anxieties as a Legal Impediment to the Doctor-Proxy Relationship

Published online by Cambridge University Press:  01 January 2021

Marshall B. Kapp
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Type
Commentary
Information
Journal of Law, Medicine & Ethics , Volume 27 , Issue 1 , Spring 1999 , pp. 69 - 73
Copyright
Copyright © American Society of Law, Medicine and Ethics 1999

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References

See Sabatino, C.P., “The Legal and Functional Status of the Medical Proxy: Suggestions for Statutory Reform,” Journal of Law, Medicine & Ethics, 27 (1999): 52–68.Google Scholar
Regarding physicians' misperceptions about legal standards of care, see, for example, Liang, B.A., “Assessing Medical Malpractice Jury Verdicts: A Case Study of an Anesthesiology Department,” Cornell Journal of Law and Public Policy, 7 (1997): 121–64.Google Scholar
See, for example, Schneiderman, L.J. and Teetzel, H., “Who Decides Who Decides? When Disagreement Occurs Between the Physician and the Patient's Appointed Proxy About the Patient's Decision-Making Capacity,” Archives of Internal Medicine, 155 (1995): 793–96; and Hanson, L.C. et al., “Impact of Patient Incompetence on Decisions to Use of Withhold Life-Sustaining Treatment,” American Journal of Medicine, 97 (1994): 235–41.CrossRefGoogle Scholar
See Kapp, M.B., “Liability Issues and Assessment of Decision-Making Capability in Nursing Home Patients,” American Journal of Medicine, 89 (1990): 639–42.Google Scholar
See Schmidt, W.C. Jr., Guardianship: The Court of Last Resort for the Elderly and Disabled (Durham: Carolina Academic Press, 1995); and Annas, G.J. and Densberger, J., “Competence to Refuse Medical Treatment: Autonomy Versus Paternalism,” University of Toledo Law Review, 15 (1984): 561–96.Google Scholar
See, for example, Molloy, D.W. et al., “Decision Making in the Incompetent Elderly: The Daughter from California Syndrome,” Journal of the American Geriatrics Society, 39 (1991): 396–99.CrossRefGoogle Scholar
Fowkes, B., Letter, “The Right to Die,” Newsweek, Sept. 19, 1994, at 16 (emphasis added).Google Scholar
See Watts, D.T., “The Family's Will or the Living Will: Patient Self-Determination in Doubt,” Journal of the American Geriatrics Society, 40 (1992): 533–34; and Ely, J. et al., “The Physician's Decisions to Use Tube Feedings: The Role of the Family, the Living Will, and the Cruzan Decision,” Journal of the American Geriatrics Society, 40 (1992): 471–75.CrossRefGoogle Scholar
End of Life Issues and Implementation of Advance Directives Under Health Care Reform: Hearings Before the Senate Comm. on Finance, 103d Cong. 43 (1994) (testimony of Christine K. Cassel, M.D., Chair, Department of Geriatrics, Mount Sinai School of Medicine).Google Scholar
See Gilligan, T. and Raffin, T.A., “Whose Death Is It, Anyway?,” Annals of Internal Medicine, 126 (1996): 137–41.CrossRefGoogle Scholar
See, for example, Daar, J.F., “Medical Futility and Implications for Physician Autonomy,” American Journal of Law & Medicine, 21 (1995): 221–40.Google Scholar
Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (1990).Google Scholar
For example, In re Wanglie, No. PX-283 (Minn. Dist. Ct. 1991); In re Jane Doe, 418 S.E.2d 3 (Ga. 1992), In re Doe, C.A. No. D-93064 (Ga. Super. Ct. 1991); and Duensing v. Southwest Texas Medical Hospital, No. SA-CA-1119 (WD. Tex. 1988). See also Capron, A.M., “Baby Ryan and Virtual Futility,” Hastings Center Report, 25, no. 2 (1995): 20–21.Google Scholar
See, for example, Annas, G.J., “Asking the Courts to Set the Standard of Emergency Care—The Case of Baby K,” N. Engl. J. Med., 330 (1994): 1542–45.Google Scholar
In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994).Google Scholar
Fronduti, R.A., Letter, “Do Everything,” Annals of Internal Medicine, 121 (1994): at 900.Google Scholar
See, for example, Orentlicher, D., “Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick,” Harvard Civil Rights-Civil Liberties Law Review, 31 (1996): 49–87.Google Scholar
Peters, P.G. Jr., “When Physicians Balk at Futile Care: Implications of the Disability Rights Law,” Northwestern University Law Review, 91 (1997): at 841.Google Scholar
See 28 C.F.R. § 35.130(e) (1999).Google Scholar
See id.Google Scholar
See Kayser-Jones, J. and Kapp, M.B., “Advocacy for the Mentally Impaired Elderly: A Case Study Analysis,” American Journal of Law & Medicine, 14 (1989): 353–76.CrossRefGoogle Scholar
See Simpson, K., “Health Care Surrogate Laws,” N. Engl. J. Med., 328 (1993): 1200.Google Scholar
See Fulton, G.B., “The Non-Declarant in a PVS: Adventures in Ohio's Legal Wonderland,” Ohio Northern Law Review, 20 (1994): 571–95.Google Scholar
See Kapp, M.B., “State Statutes Limiting Advance Directives: Death Warrants or Life Sentences?,” Journal of the American Geriatrics Society, 40 (1992): 722–26.Google Scholar
Fulton, supra note 23, at 581.Google Scholar
Compare this approach with that exhibited by the Supreme Court of Wisconsin. See In the Matter of Edna M.F. v. Eisenberg, 210 Wis. 2d 557, 563 N.W2d 485 (1997) (holding that, if an incompetent patient is not in a persistent vegetative state, maximally aggressive medical interventions may not be discontinued in the absence of an advance directive or other specific prior statement of the patient's wishes under the precise circumstances).Google Scholar
Fulton, supra note 23, at 595. A description of this sort of problem has also been presented from the perspective of a patient's daughter. See Hansot, E., “A Letter from a Patient's Daughter,” Annals of Internal Medicine, 125 (1996): 149–51.Google Scholar
See Meisel, A., “The ‘Right to Die’: A Case Study in American Lawmaking,” European Journal of Health Law, 3 (1996): at 68–69.Google Scholar
But see Kessler, D.P. and McClellan, M.B., “The Effects of Malpractice Pressure and Liability Reforms on Physicians' Perceptions of Medical Care,” Law and Contemporary Problems, 60 (1997): at 105 (emphasis added) (claiming “that law reforms affect physicians' attitudes, both by reducing the probability of an encounter with the liability system, and by changing the nature of the experience of being sued for those physicians who defend against malpractice claims.”)CrossRefGoogle Scholar
See generally Wexler, D.B. and Winick, B.J., eds., Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham: Carolina Academic Press, 1996).Google Scholar
Cf. Symposium, “Lies, Damn Lies and Statistics: How Empirical Research Shapes Health Law and Policy,” Indiana Law Review, 31 (1998): 9–142.Google Scholar