No CrossRef data available.
Article contents
Medical Paternalism and the Rule of Law: A Reply to Dr. Relman
Published online by Cambridge University Press: 06 May 2021
Abstract
In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctorpatient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not present when such decisions are made by doctors. Finally, he argues that Dr. Relman has overestimated the social costs of bringing Saikewicz-type cases before the courts and that those costs which are inevitable are more than offset by the qualities of process that the court system can offer in such matters.
- Type
- Articles
- Information
- Copyright
- Copyright © American Society of Law, Medicine and Ethics and Boston University 1979
References
1 Baron, Assuring “Detached but Passionate Investigation and Decision“: The Role of Guardians Ad Litem in Saikewicz-type Cases, 4 Am. J. L. & Med. 111 (1978)Google Scholar.
2 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977).
3 Id. at 2501, 370 N.E.2d at 435.
4 Baron, supra note 1, at 112-13.
5 1977 Mass. Adv. Sh. at 2501, 370 N.E.2d at 435.
6 Relman, The Saikewicz Decision: A Medical Viewpoint, 4 Am. J. L. & Med. 233, 237 (footnote omitted; emphasis added)Google Scholar.
7 As an example of the reaction of the medical community to the Saikewicz decision, consider the following letter sent with the noted enclosures to all doctors associated with the Newton-Wellesley Hospital:
April 10, 1978
Dear Doctor:
We must regretfully advise you that as of April 18, 1978, the Newton-Wellesley Hospital will comply with the law under the so-called “Saikewicz Decision”. The Board of Governors has instructed that the following statement be sent to all members of the Staff:
All physicians in writing orders for patient care should have clearly in mind the principles which appear to have been established by the Massachusetts Supreme Judicial Court ruling in the case of the Superintendent of Belchertown State School and another versus Joseph Saikewicz. Until there is some change as a result of legislation or future court rulings, the hospital will proceed in accordance with the advice of legal counsel.
A copy of the Counsel's interpretation of the Saikewicz Decision is enclosed together with the memorandum which is being sent to all nurses and critical care personnel.
We deplore the Court's intrusion into an area which has always been highly private and deeply personal. Historically, the decision has been quietly and compassionately made by the patient and/or family and the physician. Now, the Court has established a cumbersome and expensive procedure which attracts notoriety. We anticipate many problems with this law, but we will do our very best to work with you to resolve difficulties.
The outlook for the future is not very good. Many believe that any substantive changes in the law may be months or even years away; however, we will advise you of any changes as they occur.
Sincerely yours,
/s/ William C. Christenson
William C. Christenson
Executive Director
8 Relman, supra note 6, at 236-37.
9 Id. at 237.
10 Id. at 241.
11 1977 Mass. Adv. Sh. at 2501, 370 N.E.2d at 435.
12 For the problems involved at the present time in giving precise meaning to the term “Saikewicz-type cases” and for my own working definition, see Baron, supra note 1, at 115-16 n.3.
13 Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914).
14 Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972) (footnote omitted).
15 1978 Mass. App. Adv. Sh. 588, 376 N.E.2d 1232 (1978).
16 Id. at 592, 376 N.E.2d at 1234
17 Id. at 594, 376 N.E.2d at 1235
18 Id. (emphasis in original).
19 Id. at 594 n.5, 376 N.E.2d at 1235 n.5 (brackets in original).
20 Relman, supra note 6, at 237.
21 Id.
22 Id.
23 Of course, such attitudes are hot restricted to doctors. More properly, we should speak of “professional paternalism,” since the attitude is shared, mutatis mutanda, by members of professions other than medicine—including lawyers. For a very provocative study of “legal paternalism,” see D. Rosenthal, Lawyer and Client: Who's in Charge? (1974). Rosenthal's major conclusion seems applicable to the professions generally:
Some will accept the validity and the generalizability of the evidence presented in this book and yet be unwilling to abandon the traditional model as the ideal pattern of behavior for the professional and client. This is a position justifiable according to at least two concepts of human nature—one conservative and one reformist. The conservative position would be founded on skepticism about the potential for improvement of institutions so dependent upon the frailties of human nature.… The desirability of, as well as the potential for, extensive professional reform is questioned by many of this disposition. They tend to have a view of the development of social institutions such as professional-client relationships which sees existing institutions as a reflection of the desires and needs of those who live and work within these institutions and which mistrusts the ultimate constructiveness of basic institutional reform. “The relationship of authority-dependency between professional and client has developed as it has because that is the way people want it to be.” If clients choose a relationship of dependency and if this dependency entails certain risks because of the limitations of professionals and because of the uncertain nature of professional problems then, in the words of Dostoyevski's Grand Inquisitor, it is because “man has no more agonizing anxiety than to find someone to whom he can hand over with all speed the gift of freedom with which the unhappy creature is born.”
The reformist defense of the traditional ideal sees it as a potential source of tremendous good. Can it be doubted that many distinguished doctors, lawyers, scientists, teachers, and others have been inspired to careers of extraordinary generosity, probity, and responsibility by the traditional professional ideal? …
I do not accept the appropriateness of the conservative defense of the traditional model because it relies, I believe, on an unduly pessimistic view of human nature, an undue willingness to tolerate what is wrong with existing institutions, and an unduly fearful attitude about the possibilities of constructive social innovation. Nor do I accept the reformist defense which asks too much from educated professionals and too little from educated laymen.
Id. at 151-52 (footnote omitted).
As evidence of my own concern with paternalism within the legal profession, see Baron, & Cole, Real Freedom of Choice for the Consumer of Legal Services: Mr. Dooley and the Closed Panel Option, 58 Mass. L.Q. 253 (1973)Google Scholar; Baron, & Hofrichter, Quality Control Moves to Center Stage, 1 New Directions in Legal Services 21 (1976)Google Scholar; Baron, Specialization: Is Bar Regulation the Answer to Quality Control? 2 New Directions in Legal Services 37 (1977)Google Scholar.
24 Buchanan, Medical Paternalism, 7 Philosophy & Public Affairs 370, 381-82 (1978)Google Scholar. For philosophical discussion of the same subject by other authors, see Dworkin, Paternalism, in Moral Problems in Medicine 185 (S. Gorovitz ed. 1976); Gert, & Culver, Paternalistic Behavior, 6 Philosophy and Public Affairs 45 (1976)Google Scholar.
25 See Buchanan, supra note 24, at 376-87.
26 See, e.g., Fitts, & Ravdin, What Philadelphia Physicians Tell Patients with Cancer, 153 J.A.M.A. 901 (1953)Google Scholar; Rennick, What Should Physician Tell Cancer Patient* 2 New Medical Materia 51 (1960)Google Scholar.
27 Oken, What to Tell Cancer Patients: A Study of Medical Attitudes, 175 J.A.M.A. 1120, 1125 (1961)Google Scholar.
28 See, e.g., Branch, Psychiatric Aspects of Malignant Disease, 6 Ca, Bull. Can. Prog. 102 (1956); Kelly, & Friesen, Do Cancer Patients Want to be Told? 27 Surgery 822 (1950)Google Scholar; Samp, & Curreri, Questionnaire Survey on Public Cancer Education Obtained from Cancer Patients and Their Families, 10 Cancer 382 (1957)Google Scholar.
29 Oken, supra note 27, at 1127.
30 Id. at 1126-27. For a study showing that other values of the physician also play a role, see Todres, Krane, Howell, & Shannon, Pediatricians’ Attitudes Affecting Decision-Making in Defective Newborns, 60 Pediatrics 197 (1977).
31 Congrove v. Holmes, 37 Ohio Misc. 95, 308 N.E.2d 765 (1973).
32 Id. at 98, 308 N.E.2d at 768.
33 Reynolds, No News is Bad News: Patients’ Views about Communication, 1 Brit. Med. J. 1673, 1674 (1978)Google Scholar.
34 Philadelphia Inquirer, Nov. 26, 1978, at 14A, col. 1.
35 Although my argument does not rest on a comparison of the training of lawyers and judges, on the one hand, with that of doctors, on the other, I think it can be claimed fairly that the former are better trained than the latter for wrestling with the subtle and important social issues involved in Saikewicz-type cases. Issues of this sort are at the focus of much of a lawyer's education, and he is trained from his first days at law school to consider the social advantages and disadvantages on both sides of every such issue. Such social issues are not, of course, even a significant part of the subject matter of medical education. Indeed, only recently have a small number of medical schools begun to offer courses in “medical ethics.” See Veatch, & Sollitto, Medical Ethics Teaching: Report of a National Medical School Survey, 235 J.A.M.A. 1030 (1976)Google Scholar.
36 As I note in a number of places in this Article, none of these qualities of process are perfectly realized in every proceeding or type of proceeding. However, so long as departures from the ideal are made in public, there is an opportunity for criticism of the departure, which can lead to correction. Somewhat paradoxically, this self-correcting feature can be seen at work even where there is a departure from the principle requiring judicial proceedings to be public. So long as the determination to make a trial secret is itself made public, law review commentators can criticize the move as contrary to fundamental principles of “the rule of law.” See, e.g., Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv. L. Rev. 1899 (1978)Google Scholar.
37 See notes 52-60 infra and accompanying text.
38 This might be a jury rather than a judge. Indeed, one reason for preferring a jury, in some cases, is that the judge frequently must decide close questions,of whether an item of evidence is a “prejudicial irrelevancy.” Once the judge has learned of the fact for purposes of disposing of this preliminary question, he may have difficulty in disregarding it thereafter as he must in those cases where he decides to exclude it and he sits as the trier of fact. This is not a problem in a jury trial, where the jury never should learn of the fact if the judge determines to exclude it.
39 See, e.g., Fed. R. Evid. 403.
40 It was the lack of this quality of process in the handling of Saikewicz-type cases in Massachusetts that prompted my earlier Article. See Baron, supra note 1.
41 This includes a two-week stint as a “medical-ethics” consultant at a chronic care hospital as well as a variety of less structured working relationships in the area of medical ethics with a number of Boston-area doctors over the last eight years.
I should say here that I have great respect for the doctors with whom I have worked, not only as fine physicians but also as sensitive and conscientious human beings.
42 Schultz, Swartz, & Appelbaum, Deciding Right-to-Die Cases Involving Incompetent Patients: Jones v. Saikewicz, 11 Suffolk U. L. Rev. 936, 941 n.26 (quoting Appendix to Brief for Appellant at 9-10, Jones v. Saikewicz, No. 711 (Mass. Sup. Jud. Ct. July 9, 1976)).
43 See D. SUDNOW, PASSING ON 97-107 (1967). My own discussions with doctors confirm that these factors are often taken into consideration as criteria in such cases. Among Sudnow's observations:
One's location in the age structure of the society is not the only factor which will influence the degree of care he gets when his death is considered to have possibly occurred. At County Hospital a notable additional set of considerations can be generally termed as the patient's presumed “moral character.” The detection of alcohol on the breath of a “DOA” is nearly always noticed by t he examining physician, who announces to his fellow workers that the person is a drunk, and seems to constitute a feature he regards as warranting less than strenuous effort to attempt revival. The alcoholic patient is treated by hospital physicians, not only when the status of his body as alive or dead is at stake, but throughout the whole course of medical treatment, as one for whom the concern to treat can properly operate somewhat weakly … . Among other categories of persons whose deaths will be more quickly adjudged, and whose “dying” more readily noticed and used as a rationale for palliative care, are the suicide, the dope addict, the known prostitute, the assailant in a crime of violence, the vagrant, the known wifebeater and other persons whose moral characters are considered reproachable.
Id. at 100-01.
If one anticipates having a critical heart attack, he best keep himself well-dressed and his breath clean if there is a likelihood he will be brought into the County Emergency Unit as a “possible.”
Id. at 102. See also Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213, 263 (1975)Google Scholar.
44 This expression is one which has been given wide currency within the medical literature. Thus, Professor Charles Fried has greeted as follows inchoate efforts on the part of the medical community to begin systematizing its “no code” (that is, “do not resuscitate this patient”) decisions:
The hospitals are coming out of the closet! It is an event of the first importance that responsible administrators at two great hospitals—independently I believe—should promulgate and discuss publicly explicit policies about the deliberate withdrawal or nonapplication of life-prolonging measures. That such measures are in fact regularly withheld or withdrawn is an open secret, but the course of decision and the testimony in the Quinlan case show how wary the medical profession can be when the spotlight of publicity illuminates its practices. That is why the Massachusetts General Hospital [Pontopiddan, et al., Optimum Care for Hopelessly III Patients: A Report of the Clinical Care Committee of the Massachusetts General Hospital, 295 New England J. Med. 362 (1976)Google Scholar] and Beth Israel Hospital [Rabkin, Gillerman, & Rice, Orders Not to Resuscitate, 295 New England J. Med. 364 (1976)] statements are so noteworthy. Of course, they are incomplete and troublesome in various ways. The role of the patient is rather vague in the MGH statement. In the Beth Israel statement it is much clearer (and stronger), but the scope of the policy—limited as it is to cardiopulmonary resuscitation—is so narrow as to raise questions about the practice in the wide variety of other, analogous situations, to which the MGH statement does apply. So inevitably important questions are raised, but surely we are far likelier to arrive at reasonable answers now that hospital trustees, physicians and administrators are willing to go out on a limb and admit openly what we all know is often done anyway.
Fried, Terminating Life Support: Out of the Closet! 295 New England J. Med. 390 (1976)Google Scholar. Dr. Relman himself accepts the appropriateness of the expression:
In Massachusetts the immediate disruptive consequences of the Saikewicz ruling have already appeared. In some cases physicians and next of kin probably defer urgent medical decisions, both positive and negative, pending court approval. In other cases decisions that had formerly been made expeditiously, but only after full and explicit consultation, will now be made hastily and even furtively, thus returning “to the closet” questions that need open and thorough discussion.
Relman, The Saikewicz Decision: Judges as Physicians, 298 New England J. Med. 508 (1978)Google Scholar (footnote omitted).
The number of potential Saikewicz cases is huge. That so few have reached the courts thus far simply indicates the widespread confusion following in the wake of the original decision, which has led to the avoidance of difficult decisions, or, more likely, to “closet” decisions, without discussion or legal approval.
Relman, supra note 6, at 241.
45 Id. at 238.
46 Id. at 239 (emphasis added).
47 Id. at 235-36, 238-40, 241. Dr. Relman himself, never takes an explicit stand on this issue. However, at several points he criticizes the Saikewicz court for refusing to consider “the quality of life involved in determining whether to terminate support.” Id. at 235, 241. Either he misunderstands what the court meant by the quality of life criterion it was prohibiting, or else he believes that the courts should take into consideration the degree of value to society of the life of the incompetent. The Saikewicz court made clear that it was not prohibiting consideration of “quality of life” when that is “understood as a reference to the continuing state of pain and disorientation precipitated by the chemotherapy treatment.” 1977 Mass. Adv. Sh. at 2495, 370 N.E.2d at 432 (1977). The “substituted judgment” test requires consideration of just such questions of what life will be like for the incompetent. But the court makes clear that it will not permit’ Consideration of the value of the incompetent's life to society because “the chance of a longer life carries the same weight for Saikewicz as for any other person, the value of life under the law having no relation to intelligence or social position.” Id. at 2493, 370 N.E.2d at 431.
Whatever Dr. Relman's position, my own conversations with doctors have uncovered strong feelings on the part of a number of them that intelligence or social position should play a role as a criterion in these decisions. See also Sudnow, supra note 43, at 97-107.
48 Relman, The Saikewicz Decision: Judges as Physicians, 298 New England J. Med. 508 (1978)Google Scholar.
49 J. L. v. Parham, 412 F. Supp. 112, 138 (1976).
50 Id.
51 Id. at 139 (quoting Covington v. Harris, 419 F.2d 617, 621-22 (D.C. Cir. 1969)).
52 This article of faith is not shared, of course, by those who believe that legal reasoning is an exercise in syllogism and that sophisticated computers could replace judges in interpreting laws and applying them to the facts of cases. It is not shared also by those who know only black-letter legal rules and have no sense of the larger policies of which they are applications. Holmes, whose faith in the development of common law was strong and abiding, showed both his own faith, and a concern for those who did not share it, in the following well-known passages:
The next thing which I wish to consider is what are the forces which determine [the law's] content and its growth. You may assume, with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. In every system there are such explanations and principles to be found. It is with regard to them that a second fallacy comes in, which I think it important to expose.
The fallacy to which I refer is the notion that the only force at work in the development of the law is logic… . The danger of which I speak is … the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and, if they would take more trouble, agreement inevitably would come.
This mode of thinking is entirely natural… . The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions.
Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465-66 (1897)Google Scholar.
Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant… . If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy.
Id. at 474-75.
53 Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607-08 (1958)Google Scholar.
54 Omychund v. Barker, 1 Atk. 21, 33, 26 Eng. Rep. 15, 22-23 (Ch. 1744).
55 Fuller, Human Purpose and Natural Law, 53 J. Philos. 697, 700 (1956)Google Scholar.
56 Levi, An Introduction to Legal Reasoning 5 (1948) (footnote omitted).
57 Relman, supra note 6, at 242.
58 See In re Quinlan, 70 N.J. 10, 55, 355 A.2d 647, 671 (1976).
59 See Davis, Administrative Law Text § 1.03 at 8 (1959). See also Fellmuth, The Interstate Commerce Commission: The Public Interest and the ICC (1970); Green, The Closed Enterprise System (1972); Silverman, Vanishing Air (1970); Turner, Chemical Feast (1970); Zwick, Water Wasteland (1972).
60 Jaffe, L., Judicial Control of Administrative Action 131 (1965)Google Scholar.
61 Relman, supra note 6, at 241.
62 For one thing, it seems unfair that relatives of an incompetent patient should be forced into the position of parties to the litigation and have to bear court costs and legal fees. One potential method for avoiding this unfairness is captioning each Saikewicz-type case as “In the Matter of [alleged incompetent's name]” and then guaranteeing adversary process by appointing two guardians ad litem to try the case against each other. See Baron, supra note 1, at 129.
63 For a discussion and critique of California's “living will” statute (the first in the nation), see Steinberg, The California Natural Death Act—A Failure to Provide for Adequate Patient Safeguards and Individual Autonomy, 9 Conn. L. Rev. 203 (1977)Google Scholar.
64 1977 Mass. Adv. Sh. at 2480, 370 N.E.2d at 426.
65 None of the four elements were present in t he case of In re Dinnerstein, 1978 Mass. App. Adv. Sh. 736, 380 N.E.2d 134 (1978), where a three-judge panel of the Massachusetts intermediate appeals court seemed to recognize an amorphous and possibly enormous class of exceptions to the Saikewicz requirement of advance court approval. In that case, the question was whether Mrs. Dinnerstein's doctor could lawfully “no code” his patient—that is, note on her chart that resuscitation measures should be withheld in the event of cardiac or respiratory arrest. Because Mrs. Dinnerstein was terminally ill and suffered from a growing number of complications of her illness, her doctor and her immediate family believed that a “no code” order would be in her best interests. Since she had been rendered incompetent by her illness, she could not be consulted as to her wishes. As a result, the Newton-Wellesley Hospital, where Mrs. Dinnerstein was a patient, felt constrained to follow the requirements of “the so-called ‘Saikewicz Decision,'” see note 7 supra (letter to Newton-Wellesley doctors), and seek court approval before allowing a “no code” order to be issued. But the hospital's counsel determined to use the situation also as a test case for limiting severely the scope of the Saikeuncz holding. As a result, when the hospital's counsel brought Mrs. Dinnerstein's case to the Norfolk County probate court for hearing, they asked for approval of the “no code” decision by that court only if it found that Saikewicz required such approval. Their primary request was for a ruling that “no code” orders could be issued without prior court approval where the next of kin and attending physician agree that such an order is appropriate.
Hospital counsel got what they were after. Because of the important legal questions raised in the case, the probate court reported it to the appeals court without a decision but with extensive findings of fact made upon a hearing in the matter. Ultimately, a threejudge panel of the appeals courts held:
This case does not offer a life-saving or life-prolonging treatment alternative within the meaning of the Saikewicz case. It presents a question peculiarly within the competence of the medical profession of what measures are appropriate to ease the imminent passing of an irreversibly, terminally ill patient in light of the patient's history and condition and the wishes of her family. That question is not one for judicial decision, but one for the attending physician, in keeping with the highest traditions of his profession, and subject to court review only to the extent that it may be contended that he has failed to exercise “the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession.” Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793, 798 (1968).
The case is remanded to the Probate Court, where a judgment is to enter in accordance with the prayers of the complaint for declaratory relief, declaring that on the findings made by the judge the law does not prohibit a course of medical treatment which excludes attempts at resuscitation in the event of cardiac or respiratory arrest and that the validity of an order to that effect does not depend on prior judicial approval.
1978 Mass. App. Adv. Sh. at 746-48, 380 N.E.2d at 139 (footnotes omitted). The case was never ruled on by the supreme judicial court, but hospital counsel attempted to diminish that defect in the extent of their victory by making the following surprising claim in a subsequent article:
The fact that the Dinnerstein decision was an interpretation by a lower court of the Supreme Judicial Court's decision in Saikewicz does not affect the extent to which medical personnel can rely on it. The decision reflects the considered judgment of a three-judge panel of competent jurisdiction, and since the decision was not appealed, it is final authority. The Appeals Court did not purport to reverse or modify the Supreme Judicial Court's opinion but merely to clarify its reasoning as applied to a fact situation not presented to the Court in Saikewicz.
Schram, Kane, & Roble, “No Code” Orders: Clarification in the Aftermath of Saikewicz, 299 New England J. Med. 875, 877 (1978)Google Scholar. Of course, Dinnerstein is “final authority” in Massachusetts only in the sense of being res judicata as to the parties to the case and not in the sense of being a binding precedent covering any case that may later be brought to the supreme judicial court. And its power as “persuasive authority” is likely to be much diminished by the fact that there are major deficiencies in the logic of the Dinnerstein opinion.
Perhaps the most disturbing thing about the Dinnerstein opinion is the court's admission that it interprets the Saikewicz decision as it does because of the threat of widespread disobedience of the law by the medical community in Massachusetts. Faced with the fact that Saikewicz appears to “establish a rule of law that unless [prior court approval] has been obtained, it is the duty of a doctor attending an incompetent patient to employ whatever lifesaving or life-prolonging treatments the current state of the art has put in his hands,” 1978 Mass. App. Adv. Sh. at 741-42, 380 N.E.2d at 137, the appeals court argues that the supreme judicial court couldn't really have intended such a rule because:
As it cannot be assumed that legal proceedings such as the present one will be initiated in respect of more than a small fraction of all terminally ill or dying elderly patients, the Saikewicz case, if read to apply to the natural death of a terminally ill patient by cardiac or respiratory arrest, would require attempts to resuscitate dying patients in most cases, without exercise of medical judgment, even when that course of action could aptly be characterized as a pointless, even cruel, prolongation of the act of dying.
Id. at 742, 380 N.E.2d at 137 (footnote omitted). Since the Saikewicz opinion makes clear that such cruel prolongation of the act of dying is “neither intended nor sanctioned by the Saikewicz case,” id. at 742, 380 N.E.2d at 137, the appeals court concludes that the supreme judicial court could not have intended to require court approval in cases “such as the present one.” Id. But the dilemma which the appeals court presents is phony. Instead of assuming that there would be widespread flouting of the law by the medical community, the supreme judicial court had assumed that pointless, cruel prolongation of the act of dying would be avoided by means of doctors availing themselves of the court approval procedures laid down in that decision. Therefore, the supreme judicial court might very well have intended to require approval in cases “such as the present one.”
Because the real underlying principle of its decision—that court approval is not required in any case where the medical community will refuse to seek court approval—is obviously in conflict with Saikewicz, the appeals court attempts to carve out a more narrow principle on which to base its decision. However, there are obvious problems with each of these attempts. For example, the court argues at one point:
It is apparent as well from the factual situation to which the principles of law announced in [Saikewicz] were addressed, from the precedents cited in support of those principles, and from the inherent sense of the case read as a whole, that, when the court spoke of life-saving or life-prolonging treatments, it referred to treatments administered for the purpose, and with some reasonable expectation, of effecting a permanent or temporary cure of or relief from the illness or condition being treated. “Prolongation of life,” as used in the Saikewicz case, does not mean a suspension of the act of dying, but contemplates, at the very least, a remission of symptoms enabling a return towards a normal, functioning, integrated existence.
Id. at 743-44, 380 N.E.2d at 137-38. It is hard to know precisely what distinction is being offered by the appeals court here. If it is between, on the one hand, efforts to treat some underlying chronic condition, and, on the other hand, efforts to treat unrelated complications that may arise, the distinction is probably unworkable and, in any event, does not distinguish Dinnerstein from Saikewicz. In light of the fact that the supreme judicial court believed that a hearing was necessary to decide whether it was proper to refuse to Joseph Saikewicz chemotherapy which would prolong his life for only a year, it is hard to believe that the court would be any less concerned with the question, for example, of whether he should be refused life-prolonging treatment for appendicitis simply because he was going to die of cancer anyway.
The only prima facie compelling argument made by the court is one based on the fact that, in light of the hopeless condition of Mrs. Dinnerstein, no competent patient would opt for resuscitative efforts:
The judge's findings make it clear that the case is hopeless and that death must come soon, probably in the form of cardiac or respiratory arrest. Attempts to apply resuscitation, if successful, will do nothing to cure or relieve the illnesses which will have brought the patient to the threshold of death. The case does not, therefore, present the type of significant treatment choice or election which, in light of sound medical advice, is to be made by the patient, if competent to do so. The latter is the type of lay decision which the court in the Saikewicz case had in mind when it required judicial approval of a negative decision … by the physician in attendance and by the family or guardian of a patient unable to make the choice for himself.
Id. at 746, 380 N.E.2d at 138-39. Presumably, there is no point in requiring a court hearing to decide what is in the best interests of an incompetent where it is clear that all competent persons would choose to refuse treatment. But, first, the probate court's findings in Dinnerstein were only that “[t]he vast majority of competent terminally ill patients decline to request that extraordinary means of treatment be provided them in the event of cardiac or respiratory failure.” In re Dinnerstein, No. 78F0941, Findings of Fact (Mass. Probate Court, Norfolk County Div. June 1, 1978). Second, this argument does not meet the four criteria I suggest in the text. Among other things, it does not seem to me that the principle that “a no code may issue without court approval in any situation where no competent person would request resuscitative efforts” can be easily and accurately applied by doctors to the specific facts of the cases which may come before them.
66 See New Guardian List Set, 7 Mass. L. Weekly 21 (1978).
67 Lane v. Candura, 1978 Mass. App. Adv. Sh. 588, 376 N.E.2d 1232 (1978).
68 1977 Mass. Adv. Sh. at 2477-78, 370 N.E.2d at 425-26.
69 1978 Mass. App. Adv. Sh. at 589-90, 376 N.E.2d at 1233 (footnote omitted; emphasis added).