Fleming & Curti, P.L.C. - New York Woman's Living Will Honored Seven Years Later

MAY 26, 1997 VOLUME 4, NUMBER 47

New York Woman's Living Will Honored Seven Years Later

New York resident Margaret May signed a living will in 1989. At the time, living wills commonly provided for withholding of "artificial means" or "heroic measures" from terminally ill patients, and that is what Ms. May's document directed.

New York adopted a much broader advance directive law in the intervening years. Notable among the changes was a provision for designating a surrogate to make medical decisions, including the decision to withdraw life-sustaining treatment. Ms. May, however, did not have time to update her living will.

Just one year after she executed the living will, Ms. May suffered a massive stroke. She was placed on a feeding tube at the direction of her husband, who hoped against hope that she would recover from the stroke. She did not recover, and in fact developed dementia in addition to the after-effects of the stroke. She was transferred to the Wartburg Home in Mt. Vernon, New York, where she continued to receive tube feedings.

Finally, after nearly seven years of treatment, Mr. May decided he should direct the nursing home to honor his wife's wishes and disconnect the feeding tube. Unfortunately, by this time the nursing home had developed serious reservations about the meaning of Mrs. May's prohibition of "artificial means" or "'heroic' types of measures". The nursing home refused to permit the withdrawal of the feeding tube, with the home's administrator saying: "We felt there was not clear and convincing evidence of what she wanted."

Early this month, a New York judge directed the nursing home to comply with Mrs. May's wishes and remove the feeding tube. The tube was removed, and last week Mrs. May died.

Mrs. May's case illustrates several points about the validity and enforcement of advance directives:

•	Family members hoping for a cure can frustrate the patient's wishes by directing care despite careful planning and signed documents. It is critically important that patients convey their wishes to family members and insist that those wishes be carried out.
•	Ambiguous, imprecise language in advance directives can make it difficult to determine, much less enforce, a patient's wishes.
•	Appointment of an agent to make health care decisions is as important, in most cases, as directing the withholding of treatment.

Regular readers of Elder Law Issues may recognize Mrs. May's story as similar to that of "W.L.," a Tucson woman whose living will was also determined to be ambiguous (see Elder Law Issues Vol. 4, Issue 24, December 16, 1996). In that case, the Arizona court determined that W.L.'s living will was ambiguous (it required that W.L. be in "an incurable or irreversible condition" and directed that the decision to withdraw treatment be made in consultation with her health care agent, who opposed withdrawal of the feeding tube) and refused to direct termination of treatment.

It is interesting that both patients executed their living wills in New York, and that both suffered from strokes within a year of signing the documents. The principal difference: in W.L.'s case, family vigorously opposed removing the feeding tube, while Mrs. May's husband was seeking to have her treatment stopped.

Kevorkian Composes

For the music lover who has everything: look for the jazz CD "A Very Still Life: The Kevorkian Suite," to be released Tuesday, May 27, by Lucid Label/Resist Records. The famous (some would say infamous) "patholysist" wrote or arranged all but one of the tracks, and plays flute and organ on most of them. Kevorkian's liner notes indicate that he is a fan of Benny Goodman and Artie Shaw.

The first 5000 copies of the CD will carry a list price of $18.95, with $4.00 going toward construction of a clinic for physician-assisted suicide.

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