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48 Cards in this Set

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In Re AC

Fetal Maternal Decisionmaking
trial court used balancing of interests and ruled in favor of having the c-section to save the baby

court of appeals said trial court should have used substituted judgment

*Substituted judgment would clearly seem to protect AC from bodily intrusion that would only benefit the baby. It seems to protect her right of privacy more.
AC the pregnant woman is on the verge of death (prob 2 days). If they do a C-section, there’s a 50 maybe 60% chance of saving the baby. The woman at this point seems unwilling through C-section to give birth to the child. The mother of the woman is certain that the woman would be unwilling to do this.

Traumatic environment.

not an environment for her to make a rational decision

not an environment where you can have informed consent
McFall vs. Shimp

side case
The right of privacy is so great here that you have to consider the personal autonomy of the person. You don’t have to use substituted judgment here because Shimp is capable of making the decision on his own. Personal autonomy has to outweigh the interest of McFall in getting the bone marrow for his transplant.

The court is saying that above all else, you have to respect personal autonomy.
McFall has a bone marrow disease: aplastic anemia (inability of bone marrow to produce blood cells). His only chance of surviving is to find a bone marrow match and get a bone marrow transplant. In bone marrow transplants sometimes an unrelated person can give you a match, but your best chance of getting a bone marrow transplant/match is from a relative. All of his relatives tested for bone marrow transplant/match and only ONE cousin matched named Shimp. The cousin is a match, and he says he will do the bone marrow transplant & donate his bone marrow. It would be a somewhat painful process to be a bone-marrow donor. The day he set up to do the donation, he doesn’t show up for his appointment. McFall sues Shimp to force Shimp to give him the bone marrow.
Guardianship of JDS

Fetal Maternal Decisionmaking
The court decides that the fetus cannot have a guardian because you have to be a person to have a guardian and nowhere in the law does it say that a fetus is a person, because the fetus is not capable of independent life.
J.D.S. is an adult with multiple disabilities, who is currently housed at a Department of Children and Families approved home. As the result of an apparent rape, which occurred while she was housed in a different facility, J.D.S. is over six months pregnant.
J.D.S. was found to be INCOMPETENT.

The Court heard petitions for the appointment of a guardian for J.D.S. and appointed Patti Riley Jarrell as J.D.S.’s legal guardian.

Should there be someone appoint a guardian to argue the right of the fetus?

Brain Death and Organ Donation
The court is worried about criminal liability, if they remove the organs, especially before the baby is dead. What does it mean to be dead? How do you define death?

Definitions of Death
Common law or judge made law
Brain death
Exception for babies with only brain stem functioning?

What the parents are basically saying is that you have to make an exception for babies like this, because the best chance of getting usable organs is when there is minimal viability in the baby.
The court does not make an exception.
A baby is born with a disorder, her skull is deformed, and the babies like this, don’t live for very long, if they’re even born. Meanwhile, there is a great need for organs of babies for the purpose of transplants, and the parents want to donate it’s organs. In this case, there is really nothing that can come from this baby’s birth that is good, except you might be able to use this baby’s organs to give life to other babies. That is the argument of the parents in this case.
In the Matter of BABY K

Brain Death & Organ Donation
One thing that is legally forcing the treatment of this baby is the EMTALA.
Emergency Medical Treatment and Active Labor Act
Designed to stabilize those needing Emergency Care and Prevent Patient Dumping

The law is telling them that they don’t care about their ethical or medical standards. They have to intervene and stabilize the baby. Against the doctors’ wishes, the law forces them to treat this baby until it dies.
Before Baby K dies, she goes from the nursing home to the hospital 6 times. She lived for 2 years. Her medical bills come to $500,000. The baby can be stabilized and kept in the process of dying longer. The doctors say “why”? They don’t want to treat the baby.

Doctors are making a quality of life judgment. When a doctor looks at baby K, they are saying that this is such a poor quality of life, that they should stand back and do nothing. They want to let the dying die.
In Re Quinlan

side case:
Death & Right to Die
Mr. Quinlan is trying to go to court and get permission of her, so he will have authority to refuse treatment on her behalf. If he is her guardian and he makes medical decision on her behalf in a way he thinks she would decide if she could decide = substituted judgment.
The court allows this concept of substituted judgment.

**First really publicized right to die case. It became a very important foundation (precedent) case to be used after that in other right to die cases.
Karen Ann Quinlan, at a party, took alcohol and valium.She quit breathing and her heart stopped beating for several minutes. She was declared to be in a persistent vegetative state, meaning she had suffered major brain damage and she would never be conscious again.

Her father asked to be guardian over her. If he is appointed guardian, his intentions are to deny her the extraordinary treatments. His goal was to remove her from the ventilator, because he wants to exercise in her behalf her right to die.
Quinlan Standard

and it's problems
The Interest of the State in Preserving Life lessens as the Degree of Bodily Intrusion Increases and as the Prognosis Dims.

problems: sliding scale
Just when does the bodily intrusion get great enough and the prognosis get dim enough to exercise the right to die.

EX: Alzheimer’s disease. The prognosis for them is very dim, but there is no bodily intrusion.
EX: The Bouvia case. She has heavily bodily intrusion, but her prognosis is not dim. She has another 15-20 years to live.

The idea is that
there is no bright line, each case is different and
you have to consider all factors.
What committee came about as a result of In Re Quinlan?
Hospital Ethics Committees (to help make these decisions)

Every hospital ought to have a hospital ethics committee, where when you get these cases about the right to die, if there is some troubling info, the committee will offer their opinion about whether the patient has the right to die.
Quinlan expressed the concern that courts were not the best institutions to deal with these “right to die” decisions.
What 3 states require clear and convincing evidence?
Missouri, New York, Michigan
Cruzan v. Director Missouri Department of Health

Right to Die

The state of Missouri is requiring clear and convincing evidence. There is some evidence (a statement made by Nancy to a housemate), but not enough for Missouri.

The Supreme Court of Missouri held that because there was no clear and convincing evidence of Nancy's desires, her parents lacked authority to make this request.
Nancy Cruzan was in an accident that left her INCOMPETENT. She is in constant vegetative state. She is in the same situation as Karen Ann. The difference is Susan's parents/co-guardians are wanting to remove Susan’s feeding tube, not ventilator.
Bouvia v. Superior Court

Right to Die


Essentially, this California court is saying, “let the individual who is suffering make the quality of life decision”

The court in this case says that she has the right to die, but once the court said that she had the right to die, she decided that she wants to live.
Since birth, Bouvia has been afflicted with and suffered from severe cerebral palsy. She’s physically helpless and can’t take care of herself. Elizabeth seeks the removal from her body of a nasogastric tube inserted and maintained against her will and without her consent by physicians who so placed it for the purpose of keeping her alive through involuntary forced feeding.

Bouvia is COMPETENT; she is able to make decisions about her personal autonomy.

Bouvia is not a dying patient. She can live for another 15-20 years.
Application of the President and Directors of Georgetown College, Inc.

Right to Die

LIKE A CHILD unable to make a decision

Husband can’t order her death
Physicians have an obligation to treat
Religion respected – she does not consent
Life Hangs in the Balance – minimizes error

The judge decides to “impose” the transfusion on her, so that she won’t be seen as a sinner.
Mrs. Jones was brought to the hospital by her husband for emergency care, having lost 2/3 of her body’s blood supply from a ruptured ulcer.
Her and her husband were both Jehovah’s Witnesses, the teachings of which sect, according to their interpretation, prohibited the injection of blood into the body.
Public Health Trust of Dade County v. Wons

Right to Die

The lower court (trial court) says: I order the transfusion because of protecting innocent third parties (her children). It’s better for them to have a living mother.

The higher court (district court) held that Mrs. Won’s constitutional rights of religion and privacy could not be overridden by the state’s purported interests.
Wons entered a medical facility operated by the Public Health Trust of Dade Country with dysfunctional uterine bleeding. She needs a blood transfusion or she'll die.

She is conscious; As a Jehovah’s Witness she refuses a blood transfusion.
In Re Eichner

Right to Die

He carefully reflected on the subject (especially after the Karen Ann Quinlan case) and concluded not to have his life prolonged by medical means if there were no hope of recovery.

Also, there was evidence that before the operation rendered him incompetent he had made it known that under these circumstances he would want a respirator removed.

The evidence clearly and convincingly (New York) shows that Brother Fox did not want to be maintained in a vegetative state by use of a respirator.
While an operation was being performed on Brother Joseph Fox he suffered cardiac arrest, with resulting loss of oxygen to the brain and substantial brain damage. He was placed on a respirator, which maintained him in a vegetative state.

Father Eichner requested the hospital to remove the respirator because Brother Foxx is INCOMPETENT.
Right to Die STANDARDS
Subjective - it is clear that the particular patient would have refused the treatment particular patient would have refused the treatment under the circumstances involved

Limited objective test - some sense of the patient’s wishes; cost-benefit analysis: pain markedly outweighs the pleasures of life

Pure Objective Standard - you don’t have any sense of the person’s wishes; the burdens of life outweigh the benefits of life and do so markedly and further treatment would be inhumane
there are 3 of them
In Re Conroy

Right to Die
PURE OBJECTIVE STANDARD (b/c you don’t have any evidence of her wishes)

The court says that they don’t have enough evidence of her suffering enough for her to exercise her right to die.
Conroy is not in a persistent vegetative state. She is awake, she’s conscious, but she is senile. She isn’t really competent(INCOMPETENT). She suffers from numerous ulcers on her body. She’s bedridden & urinates on herself; she is fed through a feeding tube.

The doctors say that she is not in danger of imminent death.

Her nephew asserts that he is the closest person to Conroy and he thinks it is time to allow her to exercise her right to die.
In Re Conroy is important because
it is introducing a new standard: a best interest standard

a lot of our cases so far have really focused on the exercise of substituted judgment.

With the pure objective standard, we’re talking about something completely different. A best interest standard… we don’t know how this person would decide if they could so we’ll just make a judgment about whether we think if this person should continue to be treated or if this person should be allowed to die.
This court is saying that if you make that judgment, you have to be able to say that pain markedly outweighs the benefits of life and that further treatment would be inhumane.
Conservatorship of Robert Wendland

Right to Die

If Robert had chosen her, he would be saying that she could exercise subst. judg. on his behalf because he trusts her. Problem is: he did not appoint her; we’re not so sure that she can make decisions in his behalf.

Clear and convincing evidence an appropriate standard for a conservator (rather than an agent) in terms of substituted judgment.

The court found the conservatory "has not met her duty and burden to show by clear and convincing evidence that Wendland would under the circumstances want to die.
Wendland rolled his truck while DUI, which left him conscious but severely disabled, both mentally and physically, and dependent on artificial nutrition and hydration. However, he is not terminally ill, comatose, or in a pvs.

His wife and conservator proposed to remove the feeding tube. His daughter, brother, and 20member ethics committee agree. His mother and sister objected.

Wendland is INCOMPETENT.
Guardianship of Schiavo

Right to Die

Trial court: ruled to remove life support.
Decision supported by competent, substantial evidence.

The fact of the matter is that every court (trial court and Court of Appeal of FL) is saying that there is clear and convincing evidence that was presented of her wishes and that she is in a persistent vegetative state.

Schiavo ultimately was allowed to die. But it clearly is the biggest right to die case of all times.
Schiavo had a heart attack because of a potassium imbalance, which left her INCOMPETENT.

Another lawsuit: Terri gets lots of money. Parents/husband after money?!

Her husband, and guardian wants to discontinue the artificial life support. Her parents object.
Superintendent of Belchertown State School vs. Saikewicz

Right to Die

the court appointed a guardian ad litem (a lawyer appointed by the court to represent the interests of an incompetent person for the purposes of this litigation only) to make decisions on his behalf

Somehow, best interests is stuck owing to substituted judgment in this case.

The court is saying Joseph would decline chemotherapy and it would be in his best interest to do so because it’s a painful process to go through and he wouldn’t understand what was happening to him. This would be nothing but frustration for him, not offering him a long-term success.

He would have to go through this process he wont understand, that would cause all the vomiting and pain associated with chemotherapy.
67 years old; mental age of 2 years 8 months
institutionalized since 1923
Family (2 sisters) not involved
Has AML – a form of leukemia

We can never know Joseph’s wishes because he's always been INCOMPETENT. There is no one who has a close relationship with him.
In Re Storar

Right to Die
mother tries to use SUBSTITUTED JUDGMENT

the court denies Storar's right to die:
Mentally, John was an infant and that is the only realistic way to assess his rights in this litigation.
A parent or guardian has a right to consent to medical treatment on behalf of an infant. The parent, however, may not deprive a child of life saving treatment, however well intentioned.
The incurable cancer and the related loss of blood are all threats to his life.
In addition, the transfusions were analogous to food…they would not cure the cancer, but they could eliminate the risk of death from another treatable cause.
52 years old mental age of 18 months
Institutionalized since age of 5
77 year old mother remains close and visits almost daily
Storar needs a transfusion in order to regain the blood that he has lost as a result of this cancer in his bladder.
Mother doesn’t want transfusion for son who dislikes them intently
Newmark vs. Williams

Right to Die
Court used the BEST INTEREST STANDARD, and tried to determine what the child’s best interest would be.

The parent’s right to make the decision automatically outweighs everything, unless the State can prove clearly and convincingly that the parents’ decision is wrong.

do we force this child to undergo treatment for this cancer, where the child’s chance of survival is 40% or do we leave this child with parents who are loving, caring parents who quite honestly are going to wind up caring for a dying child

Colin's best interests were served by permitting parents to retain custody of the child.
Newmark, a 3 yr old child, faces death from a type of pediatric cancer.

DCPS petitioned to treat Colin's condition with chemo. His parents prefer a course of spiritual aid and prayer (Christian Scientists)

Normally, medical treatment cannot be withheld from children on religious grounds, but the law has a Christian Science exemption
Miller vs. HCA

Right to Die
(Children and Newborn)
The trial court concluded that HCA was grossly negligent and the hospital acted with malice.

The court of appeals said parents have no right to refuse urgently-needed life-sustaining medical treatment for their child unless the child's condition is "certifiably terminal".

The Texas Supreme Court confirms the decision of the court of appeals, but with different reasoning.
Child is being born after only 23 weeks of gestation. Both parents said to not do anything to the child to save it; let nature take its course. When the child is born, the neonatologist in the room makes a decision to try to save the child. The parents say that they did not give permission for neonatologist to try to save the child. This doctor is acting on the instructions and policies of the hospital. The parents sue the hospital.
What are the State's interests that would justify forcing treatment on someone?
1. preserving life
2. preventing suicide
3. innocent 3rd parties
4. protecting ethics of medical profession
Which case established the Hospital Ethics Committee?
When was "clear and convincing standards" first brought up in class?
What are the three standards for right to die?
1. subjective
2. limited objective
3. pure objective
you have a clear idea of what the patient wants
limited ojbjective
some idea of what patient wants;
burdens of life outweigh benefits of life
pure objective
no evidence of patients wishes;
burdens of life markedly outweigh benefits of life and any further treatment would be inhumane
Quinlan's Standard
state's interest in preserving life decreases as prognosis dims and bodily intrusions increases
Where is the right of privacy found?
penumbra in the Bill of Rights
9th amendment
word liberty in the due process clause of the 14th amendment
How did Casey significantly modify Roe v Wade?
eliminated the trimester division (increasing medical technologies)
eliminated the requirement that women have to get informed consent from their husbands
What are the three states that require clear and convincing evidence?
Michigan, Missouri, New York
What is federalism?
Different answers to the same problem
What is the difference between preponderance of evidence and clear and convincing evidence?
preponderance of evidence: one side outweighs the other side (can be by the weight of a feather)

clear and convincing evidence - requires compelling evidence.
What is an implied right?
A right that is not specifically mentioned in the Constitution, but you can infer that it is there and it is recognized in law
Wrongful conception
that they conceived due to negligence by pharmacist?
they weren't supposed to get pregnant!

o Doctor does a sterilization procedure on a woman, which doesn’t work and she gets pregnant anyway.
o The doctor had a duty to the woman (to sterilize that woman)
o That duty was violated because the doctor violated the standard procedure of care
o A harm was done
o An unwanted baby was brought into this world
Wrongful birth
Had it not been for something else, the woman would have chose to have an abortion
The physician did not inform the woman of the baby's potential health risks; if she had known, she would have chosen to have an abortion


o A suit brought on by the parent of the child saying “but for something that happened, she would have had an abortion.” The doctor screwed up and she didn’t have the chance to exercise her right to abortion. The baby was born with a defect and the doctor should pay for having this baby and for the mental anguish associated with caring for this baby with defects.
Wrongful life
it would have been better for the baby to not have been born

o The argument of the child is that nonexistence is preferable to existence. You have to pay for my existence, because I would have preferred to not exist. “But for you, I would have not existed; I would have been aborted.”
What are the 2 ways of dealing with wrongful conception?
Blessings doctrine - baby is a blessing

Contract violation - the doctor contracted to sterilize this woman and didn’t so the doctor should pay for that.
Parens patraie
The state intervenes to protect a child by acting as parents for the child because the parents are not able to (or wont because of religious convictions or whatever)
requires hospitals to stabilize emergency care needing patients and prevents patient dumping
Texas futile law
TX futile treatment law says that the hospital/doctors can essentially refuse continued treatment. They will tell you you have 10 days to find another hospital that might continue the treatment; if you don’t find another hospital within 10 days, they will discontinue the treatment
Ordinary vs. Extraordinary
normal vs. more than normal

in Quinlan's case, her dad thought her being on the respirator was extraordinary treatment

problems with this:
the definition of what is ordinary and what is extraordinary changes due to techonological/medical advances

for example: today an extremely obese/overweight person will be put on a respirator to help them breathe and it's perfectly normal
The TX Supreme Court

doctor/hospital vs. plaintiff
The TX Supreme court since the 90s has been ruling in favor of doctors/hospitals 87% of the time
guardian ad litem
a court appointed guardian to represent the best interests of the patient for the purposes of this litigation only
What is the difference between guardian ad litem and parens patraie
"Guardian ad litem" is a person, and "parens patriae"
is an idea. A G.A.L. is an attorney appointed to
represent someone who can't make decisions (i.e. a
child, an incompetent person, etc.). "p.p." refers to
the interest the state has in the lives and well-being
of its citizens.