My Achy-Breaky Heart: How routine medical overtreatment has forced
the need for a complex legal approach to euthanasia
by Amy Vitale
Elder Law, 2011
“Most persons have died before they expire – died to all earthly longings, so that the last
breath is only, as it were, the locking of the door of the already deserted mansion.”1
It can be difficult, at first blush, to consider that a lifesaving medical invention
like the pacemaker could needlessly prolong a life to the point of causing a patient to
instead long for death. This was, however, exactly what devastated the family of Katy
Butler as she and her mother helplessly watched her father vanish into a deepening state
of dementia.2 But for the pacemaker which Katy’s mother was pressured to approve for
her husband when he needed surgery after a stroke, Jeffrey Butler would probably have
died from cardiac arrest, perhaps in his sleep.3 With the pacemaker, his heartbeat was
artificially regulated by a battery that could last up to 10 years.4 Even after he had passed
away, Jeffrey’s pacemaker continued to try and regulate his heartbeat. 5 The question
every patient must ask themselves is whether such life-lengthening treatment always
desirable.
End of life decision-making is inevitably painful and is wrought with difficult and
complicated questions of what medical treatment to pursue or not pursue.
Modern
medical technology is among the many marvelous advantages of life in the twenty-first
century. Despite its acknowledgeable flaws, the American medical system still affords
greater opportunities for medical treatment than at any other point or place in history.
1
OLIVER WENDELL HOLMES, THE PROFESSOR AT THE BREAKFAST-TABLE 276 (rev. ed., 1892).
Katy Butler, What Broke My Father’s Heart, N.Y. TIMES, June 18, 2010, at MM 38, available at
http://www.nytimes.com/2010/06/20/magazine/20pacemaker-t.html?pagewanted=all.
3
Id.
4
Id.
5
Id.
2
1
However, though modern medical technology has made what was once thought
impossible, possible, it has also opened the door to scores of new ethical issues – ethical
issues for which academics, medical professionals, politicians, and lawyers have
struggled to build a functional framework. The tireless application of medical technology
that has advanced and prolonged human life has also forced a societal and legal debate
over whether a person may deem their life so unlivable as to end it voluntarily.
I.
How the Pacemaker has Revolutionized Cardiac Care
In 1958, Dr. Wilson Greatbatch invented the lithium battery that allowed for the
first implantable pacemaker.6
A pacemaker regulates a patient’s heartbeat through
electric stimulation and may be permanent (implanted internally under the patient’s
collarbone) or temporary (external).7 A permanent pacemaker is implanted below the
patient’s left collarbone and lead wires are inserted into the heart and carry the electric
pulse generated to regulate the heart when it beats too slowly.8
According to the
American Heart Association, 600,000 pacemakers are now implanted every year, mostly
in patients over sixty years of age.9 The pacemaker has unquestionably saved, improved,
and lengthened countless lives and is a true medical marvel. Those who have watched
loved ones linger in prolonged and deteriorating conditions because of the pacemaker’s
6
Barnaby Feder, Wilson Greatbatch, Inventor of Implantable Pacemaker, Dies at 92, N.Y. TIMES, Sept.
28, 2011, at B10, available at http://www.nytimes.com/2011/09/28/business/wilson-greatbatch-pacemakerinventor-dies-at-92.html?pagewanted=all.
7
What is a Pacemaker?, AMERICAN HEART ASSOCIATION, 1 (2007), http://www.heart.org/idc/groups/heartpublic/@wcm/@hcm/documents/downloadable/ucm_300451.pdf.
8
Cardiac Pacemakers, JOHNS HOPKINS MEDICINE, http://www.hopkinsmedicine.org/heart_vascular_
institute/conditions_treatments/treatments/pacemaker.html (last visited Nov. 30, 2011).
9
Mark A. Wood & Kenneth A. Ellenbogen, Cardiac Pacemakers From the Patient’s Perspective, THE
AMERICAN HEART ASSOCIATION, http://circ.ahajournals.org/content/105/18/2136.full (last visited
November 28, 2011).
2
tireless conditioning of the heart, however, may not agree that a pacemaker is always the
appropriate medical treatment.
Though it is now considered the removal of life sustaining treatment and thus
ethical to turn off a pacemaker at the patient’s request,10 it was at best ethically
questionable at the time Katy Butler and her mother were seeking to deactivate her
father’s pacemaker.11 As a result, she and her mother began seeking ways to manually
deactivate the pacemaker – and action they both felt would be Jeffrey Butler’s wish if he
had been mentally competent to make the choice himself.12 They sought to bring rest to
the “further extension of what was not a ‘life,’ but a prolonged and attenuated dying.”13
Though the pacemaker’s relationship to promoting euthanasia may now be all but
obsolete because patients may request that the pacemaker be turned off, Katy Butler’s
story still serves as an instructive example of how medical overtreatment has forced the
need for a philosophical and ethical framework for assisted suicide. Ultimately, each
individual must educate and determine for themselves their end of life wishes, because
the desired end is integral to deciding which treatment path to follow.
II.
Euthanasia and the Hippocratic Oath
Euthanasia and physician assisted suicide runs contrary to the Oath which
physicians have adhered for centuries. The original Hippocratic Oath was extensive and
detailed, and required the oath taker to swear “by Apollo Physician” and “all the gods and
10
HRS Expert Consensus Statement on the Management of Cardiovascular Implantable ElectronicD evices
(CIEDs) in patients nearing end of life or requesting withdrawal of therapy, HEART RHYTHM SOCIETY, 1
(May 2010), http://www.hrsonline.org/ClinicalGuidance/upload/ceids_mgmt_eol.pdf.
11
Butler, supra note 2.
12
Id.
13
Id.
3
goddesses” that he or she would be faithful to the covenant.14 Among other ethical
pillars, the Oath stated in part,
I will apply dietetic measures for the benefit of the sick according to my
ability and judgment; I will keep them from harm and injustice.
I will neither give a deadly drug to anybody if asked for it, not will I make
a suggestion to this effect. . . . In purity and holiness I will guard my life
and my art.15
Though it is not certain the original oath was written by Hippocrates
himself,16 the Oath’s longevity alone over thousands of years is a testament to its
ethical significance in the medical profession. The Oath has many forms, both in
translation and in revision, and the generally accepted modern version, written in
1964 by Louis Lasagna, looks much different from the original and omits the
prohibitions on abortion and assisted suicide.17 It states in part,
I will respect the privacy of my patients, for their problems are not
disclosed to me that the world may know. Most especially must I tread
with care in matters of life and death. If it is given me to save a life, all
thanks. But it may also be within my power to take a life; this awesome
responsibility must be faced with great humbleness and awareness of my
own frailty. Above all, I must not play at God.
....
I will remember that I remain a member of society, with special
obligations to all my fellow human beings, those sound of mind and body
as well as the infirm.18
14
LUDWIG EDELSTEIN, THE HIPPOCRATIC OATH: TEXT. TRANSLATION, AND INTERPRETATION 3 (Henry
Sigerist ed., 1943).
15
Id.
16
See generally, EDELSTEIN, supra note 14 (detailing the history of the Hippocratic Oath).
17
Hippocratic Oath (Modern Version), THE SHERIDAN LIBRARIES,
http://guides.library.jhu.edu/content.php?pid=
23699&sid=190964 (last visited Nov. 28, 2011).
18
Id.
4
Though the Oath has a longstanding history in medical ethics, the AMA does not
have an official policy on the administration of the oath to physicians. 19 The AMA has,
however, rejected physician-assisted suicide as “fundamentally incompatible with the
physician’s role as healer.20
III.
The Legal Status of Euthanasia in American Jurisprudence
Euthanasia is defined as “the act or practice of killing or bringing about the death
of a person who suffers from an incurable disease or condition, especially a painful one,
for reasons of mercy.”21 The existence of a “right to die” is an increasingly burgeoning
issue, both in the United States and in Europe.22 The debate centers around a very
emotional question: if a terminally ill or injured patient is in great pain and does not wish
to continue living with such an intolerable quality of life, don’t they have the right to
decide when to die, thus allowing them to die with dignity? By using terminology like
“merciful” and “dignity,” supporters of assisted suicide attempt to paint the legalization
of assisted suicide as a humane and progressive change.
Organizations such as
Compassion & Choices,23 formerly known as the Hemlock Society, actively work to
promote these changes.
19
Frequently Asked Questions in Ethics, AMERICAN MEDICAL ASSOCIATION, http://www.amaassn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/frequently-asked-questions.page
(last visited Nov. 29, 2011).
20
Opinion 2.211 – Physician-Assisted Suicide, AMA-ASSN.ORG, http://www.amaassn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page (last visited
June 16, 2011).
21
Black’s Law Dictionary 575 (Bryan A. Garner ed., 7th ed. 1999).
22
Legality of Assisted Suicide is a Worldwide Debate, THE ASSOCIATED PRESS, (June 4, 2011, 1:57 PM),
http://www.mlive.com/news/detroit/index.ssf/2011/06/legality_of_assisted_suicide_i.html.
23
The Hemlock Society was formed in 1980 by Derek Humphry in Santa Monica, California. In 1992,
Humphry published a book entitled Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide
for the Dying. In 2003 the Society merged with Compassion & Choices. DEREK HUMPHRY, FINAL EXIT:
THE PRACTICALITIES OF SELF-DELIVERANCE AND ASSISTED SUICIDE FOR THE DYING (3d ed. 2002);
Milestones in the Modern End-of-Life Choice Movement, COMPASSIONANDCHOICES.ORG,
http://compassionandchoices.org/page.aspx?pid=278 (last visited Nov. 29, 2011).
5
Support for euthanasia, however, overlooks an essential moral principle: the
unique and precious status of human life. We are created in the very image and likeness
of God,24 a status which places the value of human life above all other living things. The
sacredness or life begins with conception25 and remains until death,26 when man’s earthly
body gives up its immortal soul to eternity. Such a profound reality ought to color our
lifestyle decision making particularly when it comes to medical treatment.27 Even the
modern version of the Hippocratic Oath, which does not have a Christian or religious
grounding, calls to a physician’s attention that he must not play God.28
It disconcerting and dangerous to measure the value of an individual life by how
much an individual can contribute to society. The concept of physician-assisted suicide
is not only morally abhorrent, it also directly contradicts a physician’s oath to do no
harm. The American Medical Association (AMA) has rejected physician-assisted suicide
as “fundamentally incompatible with the physician’s role as healer.29 The AMA states
that the proper physician response to a patient seeking assisted suicide is the following:
Instead of participating in assisted suicide, physicians must aggressively
respond to the needs of patients at the end of life. Patients should not be
abandoned once it is determined that cure is impossible. Multidisciplinary
interventions should be sought including specialty consultation, hospice
care, pastoral support, family counseling, and other modalities. Patients
near the end of life must continue to receive emotional support, comfort
24
“So God created man in His own image, in the image of God He created him; male and female He
created them.” Genesis 1:27.
25
“For You created my inmost being; You knit me together in my mother’s womb. I praise You because I
am fearfully and wonderfully made . . . .” Psalm 139:13-14.
26
“No man has power over the wind to contain it; so no one has power over the day of his death.”
Ecclesiastes 8:8.
27
“Or do you not know that your body is a temple of the Holy Spirit within you, whom you have from
God? You are not your own, for you were bought with a price. So glorify God in your body.” I Corinthians
6:19-20
28
Hippocratic Oath (Modern Version), supra note 17.
29
Opinion 2.211 – Physician-Assisted Suicide, AMA-ASSN.ORG, http://www.amaassn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page (last visited
Nov. 28, 2011).
6
care, adequate pain control, respect for patient autonomy, and good
communication.30
A. The Right to Refuse Treatment is Not the Same as Assisted Suicide and Can Be a
Moral Medical Choice.
With advancements in medical technology allowing for greater life-sustaining
treatment to the sick and injured came a new type of litigation: cases involving the right
to refuse life-sustaining treatment.31
The right to refuse treatment is rooted in the
common law tradition of informed consent32 and has been recognized by the Supreme
Court as different from physician-assisted suicide.33 Life sustaining medical treatment is
“any treatment that serves to prolong life without reversing the underlying medical
condition” and can include “mechanical ventilation, renal dialysis, chemotherapy,
antibiotics, and artificial nutrition and hydration.”34
Some scholars have argued that there is no distinction between being free of life
support (which may result in death) and in actively bringing about one’s death through
medication or other means.35 This argument could not be more erroneous, however. Dr.
Leon R. Kass encapsulated the essential distinction between the removal of life support
and assisted suicide in his testimony given before the Subcommittee on the Constitution
of the House Committee on the Judiciary in 1996:
One cannot exaggerate the importance of this distinction between
withholding or withdrawing treatment and directly killing . . . . Both as a
matter of law and as a matter of medical ethics, the right to refuse
unwanted medical intervention is properly seen not as part of a right to
become dead but rather (like the rest of the doctrine of informed consent)
30
Id.
Cruzan v. Missouri, 497 U.S. 261, 270 (1990).
32
Id. at 277.
33
Vacco v. Quill, 521 U.S. 793, 801 (1997).
34
Opinion 2.20 – Withholding or Withdrawing Life-Sustaining Medical Treatment, AMA-ASSN.ORG,
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion220.page? (last visited November 28, 2011).
35
See, e.g., Richard S. Kay, Causing Death for Compassionate Reasons in American Law, 54 Am. J.
Comp. L. 693, 712-13 (2006).
31
7
as part of a right protecting how we choose to live, even while we are
dying. Doctors and patients choose whether to begin treatment on the
basis of a prudent judgment weighing benefits and burdens. In the event of
doubt, we almost invariably err on the side of life and hope for recovery.
But after a proper trial, when recovery seems beyond reasonable
possibility, when the patient’s condition deteriorates, we are medically and
morally free to abandon the therapeutic trial, even if death results. It
would be improper to say that the intent of this discontinuance – whether
by a physical act of omission or commission – is that the patient become
dead. Rather, we intend to cease doing useless and futile or degrading
things to the patient when he no longer stands to benefit from them.36
Thus the distinction between the passive removal of life support and the
active ending the life of an individual through unnatural means is critical – a
difference that has been recognized by both state and federal courts.
1. Where there is no realistic hope for recovery, the removal of life
support is a morally acceptable medical decision.
The Supreme Court of New Jersey articulated the moral distinction
between the removal of life support and assisted suicide in 1976.37
After
collapsing from unknown causes, twenty-two year old Karen Quinlan was left in a
vegetative state with grim prognosis for recovery. 38 Attempts to wean her off a
respirator were unsuccessful and eventually abandoned;39 no physician that
testified at trial thought that Karen would survive more than a year.40 Karen’s
father sought custody with the intent to take her off life support.41
36
Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House
Committee on the Judiciary, 104th Cong., 2d Sess., 368 (1996) (testimony of Dr. Leon R. Kass).
37
In re Quinlan, 355 A.2d 647 (N.J. 1976).
38
Id. at 651 n. 2, 652.
39
Id. at 655.
40
Id.
41
Id. at 651.
8
A Catholic, Karen’s father sought the advice of the church in his decision
to remove Karen from life support.42 The New Jersey Catholic Conference filed
an amicus brief arguing that, given that all medical avenues had been explored
and failed to help Karen improve, the decision to take Karen off life support was
moral.43 The court quoted the amicus brief:
[R]esponsible people involved in medical care, patients and families have
exercised the freedom to terminate or withhold certain treatments as
extraordinary means in cases judged to be terminal, i.e., cases which hold
no realistic hope for recovery, in accord with the expressed or implied
intentions of the patients themselves. To whatever extent this has been
happening it has been without sanction in civil law. Those involved in
such actions, however, have ethical and theological literature to guide
them in their judgments and actions. Furthermore, such actions have not
in themselves undermined society’s reverence for the lives of sick and
dying people.”44
Because of the circumstances of Karen’s extreme incompetence and no
realistic hope for recovery, the court held that Karen’s constitutional right to
privacy could be exercised by her guardian and family, freeing the family to make
the decision that, in their best judgment, they believed Karen would make if she
were competent.45
2. The Supreme Court has strongly suggested that the right to refuse
medical treatment is protected by the Due Process Clause.
Fourteen years after Quinlan, the Supreme Court of the United States considered
a similar case. Nancy Cruzan was rendered incompetent after a devastating car crash. 46
When it became apparent that Nancy had virtually no chance of recovery, her family
sought a court order directing the withdrawal of her feeding tube knowing it would result
42
Id. at 657-58.
Id. at 658-59.
44
Id. at 659, emphasis added, quoting the amicus brief of the New Jersey Catholic Conference.
45
Id. at 664.
46
Cruzan v, Missouri, 497 U.S. 261, 265 (1990).
43
9
in Nancy’s death.47 The Supreme Court of Missouri refused to grant the order because
there was not clear and convincing evidence of Nancy’s desire to have life-sustaining
treatment withdrawn under the circumstances.48 The Court had to determine whether
Nancy had a right under the Constitution that would require the hospital to remove life
support under these circumstances.49
The Court concluded that nothing in the Constitution prohibits a state from
establishing a procedural requirement to removing life-sustaining treatment from an
incompetent individual.50 The Court later referred to this conclusion, stating: “We have
. . . assumed, and strongly suggested, that the Due Process Clause protects the traditional
right to refuse unwanted lifesaving medical treatment.”51
3. A lesson from the Terri Schiavo case: the importance of distinguishing
between end of life cases stemming from a terminal illness and disability
cases.
It is important to distinguish between end of life cases and disability cases. The
Supreme Court has stated that “the State has an interest in protecting vulnerable groups –
including the poor, the elderly, and disabled persons – from abuse, neglect, and
mistakes.”52 The case of Terri Schiavo, a woman who was disabled and received her
nutrition and hydration through a feeding tube,53 encapsulates just such a mistake. Rather
than being removed from life sustaining medical treatment, allowing the natural cause of
disease or terminal illness to take its course, Terri was denied the basic necessities of
food and water and was thus starved to death.
47
Id. at 267-68.
Id. at 265.
49
Id, at 269.
50
Id. at 280.
51
Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citing Cruzan, 497 U.S. at 278-79).
52
Id. at 731.
53
Bush v. Schiavo, 885 So.2d 321, 324-25 (Fla. 2004).
48
10
A disability is defined as “the inability to perform some function.”54 The Code of
Federal Regulations defines a terminal illness as a medical prognosis that life expectancy
is “6 months or less if the illness runs its normal course.”55 Though Terri was severely
disabled as a result of cardiac arrest, she suffered from no terminal illness.56
Furthermore, Terri did not require a life-sustaining machine like a ventilator; she merely
required assistance receiving basic sustenance to keep her alive – food and water.57 She
was disabled because she had the inability to feed herself, among other things.
Terri was the very embodiment of the disabled individuals that the Supreme Court
stated the State has an interest in protecting from abuse, neglect, and mistakes.58
However, the Florida Supreme Court refused to uphold a law that would have saved
Terri’s life59 and the United States Supreme Court refused to take the appeal of Terri’s
case.60 By failing to recognize the difference between life-sustaining medical treatment
for a terminally ill individual and the provision of basic necessities for an otherwise selfsustainable disabled individual, the Florida courts failed to protect the epitome of the
most vulnerable. Terri’s feeding tube was removed and she was allowed to starve to
death. She passed away on March 31, 2005 as a result of extreme dehydration.61
The judiciary’s inability to distinguish between a case encompassing end of life
issues and a case encompassing disability issues is more than disconcerting – it is
dangerous. The Supreme Court has appropriately recognized a difference between life54
Black’s Law Dictionary, supra note 21, 528.
42 C.F.R. § 418.3 (2011).
56
FAQ, TERRI SCHIAVO LIFE & HOPE NETWORK, http://www.terrisfight.org/faq-2/ (last visited Nov. 30,
2011).
57
Id.
58
Washington v. Glucksberg, 521 U.S. 702, 731 (1997).
59
Bush v. Schiavo, 885 So. 2d 321, 337 (2004).
60
Bush v. Schiavo, 543 U.S. 1121 (2005), cert denied.
61
Timeline, TERRI SCHIAVO LIFE & HOPE NETWORK, http://www.terrisfight.org/timeline/ (last visited Nov.
30, 2011).
55
11
sustaining treatment and euthanasia, reaching that conclusion largely on common-sense
grounds.
Yet it dismissed an opportunity to clarify an equally essential distinction
between a terminal illness and a disability, even with an already-existent legal federal
framework to do so.
B. There is No Constitutional Right to Assisted Suicide
The Supreme Court has held that there is no right to assistance in committing
suicide in the Constitution.62 The courts have recognized four state interests in the
regulation of assisted suicide: (1) the preservation of life, (2) the protection of the
interests of innocent third parties, (3) the prevention of suicide, and (4) the maintenance
of the ethical integrity of the medical profession.63 Furthermore, the Supreme Court has
recognized that “the State has an interest in protecting vulnerable groups – including the
poor, the elderly, and disabled persons – from abuse, neglect, and mistakes.”64
The Supreme Court held in Washington v. Glucksberg that “the asserted ‘right’ to
assistance in committing suicide is not a fundamental liberty interest protected by the
Due Process Clause.”65 In Glucksberg, three doctors who occasionally treated terminally
ill patients, three terminally ill patients, and Compassion in Dying, a nonprofit
organization that counsels people considering physician-assisted suicide sought a
declaratory judgment that the Washington State ban on assisted suicide was
unconstitutional.66 In deciding that the protections of the Due Process Clause do not
62
Glucksberg, 521 U.S. at 728.
Cruzan v, Missouri, 497 U.S. 261, 271 (1990) (citing Superintendent of Belchertown State Sch. v.
Saikewicz, 370 N.E.2d 417, 426 (Mass. 1977) in a summary of state and federal cases on the removal of
life support). See also Krischer v. McIver, 697 So. 2d 97, 102 (Fla. 1997).
64
Washington v. Glucksberg, 521 U.S. 702, 731 (1997).
65
521 U.S. at 728.
66
Id. at 707-08.
63
12
include a right to commit suicide with another’s assistance,67 the Court stated that a stateenacted assisted-suicide ban “reflects and reinforces its policy that the lives of terminally
ill, disabled, and elderly people must be no less valued than the lives of the young and
healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and
treated the same way an anyone else’s.”68
The same day the Court decided Glucksberg, the Court also decided Vacco v.
Quill, a companion case to Glucksberg which challenged a New York State ban on
assisted suicide as a violation of the Equal Protection Clause of the Fourteenth
Amendment.69 For reasoning which paralleled the decision in Glucksberg, the Court held
that the ban did not violate the Equal Protection Clause.70
Though there is no constitutional right to assisted suicide, the Supreme Court has
effectively held that federal government may not prohibit states from enacting laws
permitting it when it rejected the Attorney General’s argument that the Controlled
Substances Act of 1970 allowed the federal government to criminalize physician-assisted
suicide. Laws regarding end-of-life issues are dealt with primarily on the state level.71
Currently, at least forty states have statutorily criminalized assisted suicide and several
more forbid it through common law.72 Only two states have legalized physician-assisted
suicide: Oregon73 and Washington.74 It is also legal in Montana as a result of a decision
67
Id. at 724, 728.
Id. at 732.
69
521 U.S. 793, 797-98 (1997).
70
Id. at 797.
71
Most states recognize the right to refuse medical treatment while expressing disapproval of assisted
suicide. Edward L. Grant & Paul Benjamin Linton, Relief or Reproach?: Euthanasia Rights in the Wake of
Measure 16, 74 OR. L. REV. 449, 462-63 (1995).
72
Stacy A. Tromble, A Dialogue on Death & Deference: Gonzales v. Oregon, 54 BUFF. L. REV. 1639, 1673
(2007).
73
The Oregon Death With Dignity Act, OR. Rev. Stat. § 127.800 (2009).
74
The Washington Death With Dignity Act, WASH, REV. CODE § 70.245 (2011).
68
13
by the Montana Supreme Court.75 In Washington state alone, fifty-one people died in
2010 after ingesting lethal drugs prescribed by their physicians in accordance with
Washington law.76 In total, eighty-seven patients were given prescriptions by sixty-seven
doctors.77
IV.
How Our Lifestyles and Approach to Medical Treatment Have Affected
Our Need for a More Sophisticated Philosophical Framework for
Euthanasia
It is said that the truest things are said in jest. Though the quip “a pill for every
ill” is often used in a humorous way, its use speaks volumes of what we as a society
value and do not value in our approach to medical care. In 2010, almost four billion
prescriptions were written for patients in America alone.78 The population in America in
2010 was approximately 308.7 million.79 That means that in 2010, an average of thirteen
prescriptions were written per American citizen. The average American citizen is on an
astounding number of medications.
The leading cause of death in America according to the Center for Disease
Control and Prevention was heart disease.80 Heart disease claimed 598,607 lives in 2009,
with cancer as a close second at 568,668.81 Respiratory diseases came in as a distant
75
Baxter v. Montana, 224 P.3d 1211 (Mont. 2009) (holding that consent of the victim constitutes a defense
against a doctor facing homicide charges for physician-assisted suicide).
76
Kevin B. O’Reilly, 51 Died Under Washington’s Assisted-Suicide Law in 2010, AMERICAN MEDICAL
NEWS (Mar. 28, 2011), http://www.ama-assn.org/amednews/2011/03/28/prsb0328.htm.
77
Id.
78
Daniel J. DeNoon, The Ten Most Prescribed Drugs, WebMD (Apr. 20, 2011),
http://www.webmd.com/news/
20110420/the-10-most-prescribed-drugs.
79
THE UNITED STATES CENSUS BUREAU, POPULATION DISTRIBUTION AND CHANGE: 2000 TO 2010 1 (Mar.
2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf .
80
NATIONAL VITAL STATISTICS REPORTS, DEATHS: PRELIMINARY DATA for 2009 5 (Mar. 16, 2011),
available at http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_04.pdf.
81
Id.
14
third at 137,082.82 The contraction and treatment of each of these medical issues are
greatly impacted by an individual’s lifestyle.
As a culture, we have progressively forced a heightened rate of chronic and often
terminal medical complications through our lifestyles – a progression which has fueled
the debate of whether or not there is a right to choose to take your own life as an early
escape from further medical treatment for a terminal condition.
Jeffrey Butler suffered from a stroke in 2001, which severely incapacitated his
ability to function on a daily basis.83 A little over a year later, he required surgery for a
painful intestinal hernia, but his cardiologist would not clear him for surgery without the
implantation of a pacemaker.84 Though Jeffrey had refused a pacemaker before his
stroke, his wife Valerie, who was responsible for making his medical decisions, felt
pressured to consent so that her husband could have the surgery and be relieved of his
pain.85 The Butler family later learned that a temporary external pacemaker could have
addressed the cardiologist’s concerns during surgery, but they were never informed of
that option.86
Feeling like the victims of a medical system prone to overtreatment
without full disclosure to patients, Valerie and Katy struggled over whether to manually
disable Jeffrey’s pacemaker as dementia and daily disabilities became more and more
severe.87
Katy Butler notes in her article that her mother kept an underlined copy of Final
Exit in her bookcase,88 indicating that Valerie was in favor of patient-elected euthanasia
82
Id.
Butler, supra note 2.
84
Id.
85
Id.
86
Id.
87
Id.
88
Id.
83
15
as an end of life care option. Though the debate on physician-assisted suicide is growing,
the AMA refuses to endorse the practice as an ethical option for end of life care. Dr.
Thomas Reardon, Chair of the AMA Board of Trustees in 1997, noted the need to
promote alternatives for end of life care in a published statement of the AMA’s reaction
to Oregon’s decision to legalize physician-assisted suicide.89 The statement called the
new law “a serious blow” to the health and safety or Oregonians and a “dangerous
precedent for other states considering similar initiatives that physician-assisted suicide is
an acceptable option for patients in the last phase of life.”90 Dr. Reardon highlighted that
everyone has “rights at the end of life that preclude us from having to resort to physicianassisted suicide. Not only is it our duty to educate ourselves, our loved ones and the
public regarding these existing rights, it is our obligation to ensure that these rights are
honored.”91
V.
A Modest Proposal
A hundred years ago, most individuals passed away quickly. The exponentially
increased treatment options available today have also increased the number of individuals
lingering with painful, terminal diseases, and thus we as a society have begin to struggle
with the need for a moral and legal framework for regulating the theoretically voluntary
ending of a life wrought with complications of terminal illness. It should not be inferred
that this paper is arguing that medical care is always, or even often, inappropriate.
Furthermore, it should not be inferred that this paper is arguing that prescription drugs are
inherently inappropriate medical treatment. However, the statistics laid out above are but
89
Press Release, American Medical Association, AMA Reaction to Oregon Decision to Allow PhysicianAssisted Suicide Law (Nov. 5, 1997).
90
Id.
91
Id.
16
a few of an increasing amount of evidence that medical overtreatment is common and
accepted.
Overmedication is so widely accepted in our society that change will be difficult,
however there are two things over which each individual has the power of choice that if
exercised in mass could begin to change our culture’s approach to medical treatment.
First, a commitment to a healthy lifestyle can prevent many of the diseases at the top of
the mortality chart,92 thus circumventing the need for care to begin in the first place. The
most obvious example is the number one cause of death in America: heart disease.93
Heart disease can be prevented by lifestyle choices like not smoking, by exercising
regularly, and by eating a balanced diet and maintaining a healthy weight.94
Complications from heart disease are numerous, and require medical attention from the
need to control cholesterol to invasive and significant procedures like bypass surgery. In
2007, 200 million prescriptions were written for cholesterol medication alone. 95
A
commitment to healthy living by a large number of Americans could have a significant
impact on the reduction of heart disease and its related health care costs and negative
medical complications. For a preventative approach to be most effective, it must be
started at a young age before bad lifestyle choices allow problems to develop.
Second, it is essential that every individual construct their personal philosophy of
treatment before treatment becomes necessary (as it inevitably will for each individual).
Such a construction requires an admission that you are mortal, that you are not perfect,
92
See discussion infra Part IV.
NATIONAL VITAL STATISTICS REPORTS, supra note 80, at 5.
94
5 Medication-Free Strategies to Help Prevent Heart Disease, THE MAYO CLINIC (Jan. 12, 2011),
http://www.mayoclinic.com/health/heart-disease-prevention/WO00041.
95
Matthew Herper, How Many People Take Cholesterol Drugs?, FORBES.COM (Nov. 30, 2008, 6:00 AM),
http://www.forbes.com/2008/10/29/cholesterol-pharmacuticals-statins-biz-cx_mh_1030cholesterol.html.
93
17
and that you will someday die. Life is precious. Life is also temporary. Plan your
medical decision-making by drawing up documents like a living will or an advanced
directive and communicate your wishes to the family members who will make decisions
in your stead if you ever become incapacitated. Educating yourself about common health
issues and knowing the limits of your desires for medical treatment can help you avoid
consenting to a life-lengthening treatment that may artificially lengthen your life,
allowing for lengthened years of dealing with issues such as dementia, like Jeffrey.
A year after Jeffrey passed away, Valerie’s cardiologist recommended open heart
surgery and a pacemaker as treatment for the eighty-four year old woman’s leaking heart
valves.96 Her doctors refused to operate on her unless she removed her do not resuscitate
bracelet.97 With the full support of her daughter, Valerie refused.98 A few months later
she passed away peacefully after a week in hospice care following a heart attack, a stark
contrast to the last lingering months of her husband.99 She remained lucid and competent
until her death.100
The difference between Jeffrey and Valerie is a perfect demonstration of why
each individual should thoughtfully and prayerfully consider his personal philosophy on
medical treatment; how long do you wish to treat your inevitably decaying mortal frame?
Waiting to until you have a negative diagnosis adds an overwhelming burden to an
already difficult decision making process.
Because of her experience with Jeffrey,
96
Butler, supra at 2.
Id. The AMA ethical guidelines officially supports honoring a patient’s advance directive to not be
resuscitated. See Opinion 2.22 – Do-Not-Resuscitate Orders, AMA-ASSN.ORG, http://www.amaassn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page (last visited
November 28, 2011). http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion222.page.
98
Id.
99
Id.
100
Id.
97
18
Valerie knew the limits of her wished for medical care, had taken steps to record her
wishes and communicate them to family, and gave her refusal for surgery quickly and
confidently.101
VI.
Conclusion
Valerie’s refusal of a pacemaker, a decision made as a result of her experience
with Jeffrey, obviated a possible later battle over whether she was lingering in pain long
enough to desire to take her own life. Ultimately, medical decisions – both in lifestyle
and in the refusal of treatment – are the patient’s. If we, as a culture, recognize our own
mortality and cease attempting to artificially prolong life that has no hope for healing or
improvement, the need for a sophisticated legal and moral framework on euthanasia and
physician-assisted suicide will significantly lessen.
101
Id.
19