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Legal Advice, Moral Paralysis and the Death of Samuel Linares

Published online by Cambridge University Press:  29 April 2021

Lawrence J. Nelson  and
Ronald E. Cranford
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Extract

Legal advice lies close to the death of Samuel Linares, closer than it usually does to the deaths of the many who die every day in American hospitals. Samuel's parents wanted the attending physician to disconnect the ventilator of their permanently unconscious son and allow him to die, something they saw as right for their son and their family. But this never happened. Samuel was not allowed to meet the death he had so narrowly avoided in August of 1988 when he accidentally swallowed a balloon and choked. He did not die uneventfully after his parents and the clinicians caring for him had carefully deliberated about the personal, ethical and professional propriety of stopping the ventilator and made a responsible decision about his fate.

Instead, Rudy Linares had to ward off nurses and security guards with a handgun until he disconnected his son's ventilator and held him in his arms until he died. According to the attending physician, Dr. Goldman, “There was no ethical difference of opinion here. The physicians agreed that the child was in an irreversible coma and would not recover. There was no medical opposition to removing the ventilator. What we faced was a legal obstacle.” (Emphasis added.)

Type
Article
Information
Law, Medicine and Healthcare , Volume 17 , Issue 4 , Winter 1989 , pp. 316 - 324
Copyright
Copyright © American Society of Law, Medicine and Ethics 1989

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References

Johnson, Dirk, “Father Speeds Baby's Death as Question of Law Linger,” New York Times, May 7, 1989, p. A26.Google Scholar
“Could an Ethics Committee Have Prevented the Linares Tragedy?” Medical Ethics Advisor 69, 70 (June 19 , 1989).Google Scholar
Chambers, Marcia, “Did Lawyers for Hospital Act Properly?” National Law Journal (June 19, 1989), 13.Google Scholar
Somerville, Janice, “Hospital Blamed for Failing to Aid Parents,” American Medical News (May 12, 1989), 12.Google Scholar
Griffin, Jean and Grady, William, “Hospital in Center of Storm,” Chicago Tribune (April 28, 1989), p.1.Google Scholar
Tragedy, note 2, supra, at 71.Google Scholar
Dr. Goldman has been quoted as stating, “I kept telling the dad, ‘I know it's terrible, but it won't last much longer.’” “Leniency Urged for the Father of the Comatose Boy,” New York Times, May 1, 1989, p. A6. Carolyn Reed, Rush's director of public relations, has been quoted as stating: “They expected this child to die at any time.” Eric Harrison and Tracy Shriver, “Weeping Father Pulls Gun, Stops Infant's Life Support,” Los Angeles Times, April 27, 1989, p. A1., 44.Google Scholar
Id.Google Scholar
Somerville, note 4 supra, at 12.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
Mr. Brown has been quoted as saying, “I have yet to hear from an attorney who strongly disagrees” that it is illegal in Illinois to disconnect a child like Samuel from the ventilator. Tragedy, note 2 supra, at 69. We believe that there are many lawyers who strongly disagree with Mr. Brown.Google Scholar
Smith-Hurd Illinois Annotated Statutes Ch. 38 Para. 9–1(a) (Supp. 1989).Google Scholar
LeFave, W. & Scott, (1972), Handbook on Criminal Law 408.Google Scholar
32 Ill.2d 361, 205 N.E.2d 361 (1965).Google Scholar
In re Storar, 52 N.Y.2d 363, 377, 420 N.E.2d 64, 71, cert. denied, 454 U.S. 858 (1981); Bartling v. Superior Court, 163 Cal. App.3d 186, 199, 209 Cal. Rptr. 220, 226 (1984); In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1242 (1986); Bouvia v. Superior Court, 179 Cal.App.3d 1127, 1145 (1986).Google Scholar
“The problem is not to preserve life under all circumstances but to make the right decisions.” Conservatorship of Drabick, 200 Cal.App.3d 185, 209 (1988).Google Scholar
In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).Google Scholar
John F. Kennedy Memorial Hospital v. Bludworth, 452 So.2d 921 (Fla. 1984); In re Eischner, 52 N.Y.2d 363, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981); Barber v. Superior Court, 147 Cal.App.3d 1006, 195 Cal. Rptr. 484 (1983); Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 482 A.2d 713 (Super. Ct 1984) (semicomatose patient); Severns v. Wilmington Medical Center, 421 A.2d 1334 (Del. 1980); In re Torres, 357 N.W.2d 332 (Minn. 1984); Leach v. Akron Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (Com Pl. 1980); In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983); In re L.H.R., 321 S.E.2d 716 (Ga. 19840; In re Guardianship of Barry, 445 So.2d 365 (Ct. App. Fla. 1984); In re P.V.W., 424So.2d 1015 (La. 1982).Google Scholar
321 S.E.2d 716 (Ga. 1984).Google Scholar
Id. at 723.Google Scholar
Id. at 722.Google Scholar
Id at 723.Google Scholar
Id.Google Scholar
445 So.2d 365 (CApp t. Fla. 1984).Google Scholar
Id. at 370 (emphasis added).Google Scholar
Id. at 371.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
424 So.2d 1015 (La. 1982).Google Scholar
La.R.S. 40:1299.36.1 (A) and (B).Google Scholar
La.R.S. 40:1299.36.1 (C).Google Scholar
La.R.S. 40:1299.36.3 (B). Interestingly, the Louisiana state constitution contains a provision stating that “No law shall subject any person to euthanasia.” La. Const. Art. 1, Sec. 20.Google Scholar
380 Mass. 629, 405 N.E.2d 115 (1980).Google Scholar
147 Cal.App.3d 1006 (1983).Google Scholar
Tragedy, note 2 supra, at 71.Google Scholar
American Academy of Neurology, “Position of the American Academy of Neurology on Certain Aspects of the Care and the Management of the Persistent Vegetative State Patient,” 39 Neurology 125–126 (1989); Theodore Munsat, William Stuart, and Ronald Cranford, “Guidelines on the Vegetative State: Commentary on the American Academy of Neurology Statement,” 39 Neurology 123–124 (1989)Google Scholar
American Medical Association Council on Ethical and Judicial Affairs, “Withholding Or Withdrawing Life Prolonging Treatment,” March 15, 1986, cited in In re Estate of Prange, 520 N.E.2d 946 (App.Ct.Ill. 1988), vacated, 527 N.E.2d 303 (Ill. 1988), cert. denied sub nom. Murphy v. Benson, 109 S.Ct. 229 (1988).Google Scholar
The Hastings Center, “Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying,” 1987; Jonsen, A. Siegler, M. Winslade, W. (1986), Clinical Ethics (2d ed.), New York, Macmillan, 134; President's Commission for the Study of Ethical Problems in Medicine (1983), Deciding to Forego Life-Sustaining Treatment, Washington DC, U.S. Govt. Printing, 171–196.Google Scholar
115 Ill.App.3d 349, 450 N.E.2d 940 (1983).Google Scholar
450 N.E. 2d at 944.Google Scholar
“Our supreme court has held that the proper relationship between the legislature and the judiciary is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community …When there is a gap in the common law that manifestly should be bridged and the legislature has failed to take remedial action, it is the imperative duty of the judiciary to reform the law to be responsive to the demands of society…” Id. (citations omitted).Google Scholar
Id. at 944–945 (citations and footnotes omitted).Google Scholar
Id. at 943.Google Scholar
Tragedy, note 2, supra, at 71.Google Scholar
In re Estate of Prange, 520 N.E.2d 946 (App.Ct.Ill. 1988), vacated, 527 N.E. 2d 303 (Ill. 1988), cert. denied sub nom. Murphy v. Benson, 109 S.Ct. 229 (1988). This opinion, like that in Haymer, plainly demonstrates that Illinois courts are heavily influenced by rulings in similar cases from other jurisdictions. “We are aware that no Illinois case has previously addressed the question of whether artificial-feeding devices, such as the nasogastric tube in the instant cause [sic], are included among life-sustaining procedures which a patient may decline. However, the jurisdictions which have considered the issue have uniformly held that a patient's constitutional right to privacy includes the right to have such artifical-feeding devices removed…We are in agreement with [these] jurisdictions…” Id. at 952. Prange was decided before Cruzan.Google Scholar
In re Estate of Longeway, No. 67318 (Ill. Su. Ct., argued Nov. 15, 1988) and In re Greenspan, No. 67903 (Ill. Su. Ct., argued January 25, 1989). Both patients are permanently unconscious and are still being maintained on artificial feedings pending a decision by the Illinois Supreme Court. Neither patient had executed a “living will” in accordance with Illinois law, but both had provided oral evidence of their treatment preferences.Google Scholar
Cruzan v., 760 S.W.2d 408 (Mo. 1988); In re Guardianship of Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987) (as modified by a later change in vote of the court). On its own terms (although we would not necessarily invest these terms with the same significance), Cruzan can be readily distinguished from Linares. First, the Cruzan court made much of the point that Nancy Cruzan was not terminally ill; according to Dr. Goldman, Samuel was. Second, the court refused to characterize continuation of the tube feedings as invasive. It is quite difficult to claim that an endotracheal tube and the ventilator tubes are not invasive. Third, while there is considerable controversy as to whether tube feeding is medical treatment, there is no argument that mechanical ventilation is. Fourth, neither existing judicial precedent nor the bioethical literature contains much, if any, authority calling for continued use of a ventilator in a permanently unconscious patient.Google Scholar
42 U.S.C.A. Sections 5102–5106, 5111–5113 (West Supp. 1989).Google Scholar
Johnson, , note 1, supra.Google Scholar
Somerville, note 4, supra, at 12.Google Scholar
Cranford, Ronald E., “The Persistent Vegetative State: The Medical Reality,” The Hastings Center Report, February/March 1988; 18: 27–32. Conservatorship of Drabick, 200 Cal.App.3d 185, 189 (1988) (“…Drabick, who has been comatose in a persistent vegetative state since 1983…”).Google Scholar
Nelson, Lawrence J., “Perinatology/Neonatology and the Law: Looking Beyond Baby Doe,” 1988 Year Book of Perinatal/Neonatal Medicine (Chicago: Year Book Medical Publishers, 1988), 6; Smith, Steven R., “Disabled Newborns and the Federal Child Abuse Amendments: Tenuous Protection,” Hastings Law Journal 37 (1986), 765–825.Google Scholar
“New ‘Baby Doe’ Rules Tested” American Medical News, October 10, 1986, 1, 45.Google Scholar
Smith-Hurd Illinois Annotated Statutes Ch. 23, Para. 2053, Sec. 3 (Supp. 1989).Google Scholar
Johnson, note 1, supra.Google Scholar
In a sense, Samuel was maximally handicapped because he was permanently unconscious. The only greater handicap would be death itself. On the other hand, it really does not make much sense to call either death or permanent unconsciousness a “handicap.”Google Scholar
Tragedy, note 2, supra, at 72.Google Scholar
Smith-Hurd Illinois Annotated Statutes Ch. 23, Para. 2054, Sec. 4 (Supp. 1989).Google Scholar
Id. at Sec. 3.Google Scholar
See text accompanying notes 6–10, supra.Google Scholar
“The legislature finds that persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have death delaying procedures withheld or withdrawn in instances of a terminal condition.” Smith-Hurd Illinois Annotated Statutes Ch. 110 1/2, Para. 701, Sec. 1 (Supp. 1989).Google Scholar
“The General Assembly recognizes the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to decline medical treatment or to direct that it be withdrawn, even if death ensues.” Smith-Hurd Illinois Annotated Statutes Ch. 110 1/2, Para. 804–1, Sec. 4–1 (Supp 1989).Google Scholar
E.g., In re Conroy, note 16, supra; Barber v. Superior Court, note 18, supra.Google Scholar
See note 39, supra.Google Scholar
Johnson, note 1, supra.Google Scholar
Annas, George, “Reconciling Quinlan and Saikewicz: Decision Making for the Terminally Ill Incompetent,” 4 American Journal of Law & Medicine 367, 387, (1979).Google Scholar
Id. at 389–391.Google Scholar
Barber v. Superior Court, 147 Cal.App.3d 1006, 195 Cal. Rptr. 484 (1983).Google Scholar
Matter of Quinlan, 355 A.2d 647, at 688 (1976). This passage has been quoted by many other courts addressing the termination of treatment. Eg Barber v. Superior Court, 147 Cal.App.3d 1006, 1018–1019 (1983); Barling v. Superior Court, 163 Cal.App.3d 186, 197 (1984).Google Scholar
See text accompanying note 12, supra.Google Scholar