Only the patient and family And in Maryland . . .

Diane Hoffmann & Karen Rothenberg

December 21, 1992|By Diane Hoffmann & Karen Rothenberg

MARY N. had taken care of her husband's mother for a year following a stroke. When Mary and her husband were no longer able to care for her, she entered a nursing home, where she had a second stroke and could no longer speak or recognize her family.

The mother had said on numerous occasions that she would never want to "be a burden to the family or be kept alive with tubes." She wrote a "living will" but did not leave instructions about artificial nutrition and hydration.

A few days ago the nursing home advised that because the patient was not terminally ill, state law required the insertion of a feeding tube. The family pleaded, and the mother's physician agreed but had no influence at the home. The feeding tube was inserted. The burden is now on Mary and her husband to go to court if they want the tube removed.

This isn't right, and it isn't fair. It is also a situation that could be repeated under proposed legislation drafted by a committee headed by Baltimore Circuit Court Judge John Carroll Byrnes.

The proposed bill gives considerable power to health-care providers -- power that most providers neither want nor deem appropriate. It allows a doctor or a nurse to override an incompetent patient's wishes, as expressed by family members, if the provider believes that the decision would be against the religious or moral beliefs of the patient. It even allows providers to override a family member's decision regarding the termination of life support, if the provider feels the relative is not acting in a "reasonable and prudent manner."

The tone of the draft is one of distrust and cynicism of families and their ability to speak for close relatives. Even when all family members and the provider are in agreement, there will be times when a family must go to court to terminate life-sustaining treatment. This unnecessary legal burden robs families of their need to continue to function in a caring role and work through the dying process of a loved one. The drafters seem to think that without such burdens, abuses will occur regularly. This view is truly misguided. Most families struggle during these difficult times to do what they think the seriously ill patient would have wanted or what would be in the patient's best interests.

Those concerned with the issue agree that Maryland's current law is inadequate, but the alternative proposed by the Byrnes committee does not fix what is wrong.

The Law and Health Care Program at the University of Maryland School of Law and the attorney general's office recently held a conference to discuss the proposed bill. Judge John Fader of the Baltimore County Circuit Court described it as an effort to reduce patient autonomy. Rev. Harry Cole, a Lochearn Presbyterian minister whose comatose wife Jackie was at the center of a highly publicized "right-to-die" case -- a case heard by Judge Byrnes -- made an emotional presentation against it.

Maryland's needs "right-to-die" legislation that is concise, clear and easily understood by the people it affects. The bill should amend the current statute so that a patient is treated according to his or her wishes, as those wishes have been made known to a family member. The legislation should never allow anyone to impose medical treatment that is in conflict with those wishes.

Diane Hoffmann is associate professor and Karen Rothenberg is professor in the Law and Health Care Program at the University of Maryland School of Law.

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