July 7, 2000 -- Marshall Klavan is living his worst nightmare. Once a
prominent Philadelphia physician, today he lives in a nursing home, unable to
speak, communicate, or make decisions for himself. He spends his days in a
wheelchair, paralyzed on the right side of his body. He is, in short, the sort
of helpless, incompetent person he feared becoming when he signed a living will
years earlier, forbidding doctors to resuscitate him if he ever became
irreversibly ill. Now his lawyer is suing Klavan's former colleagues, saying
they should be punished for saving Klavan's life and required to pay the costs
of his ongoing nursing care.
Though he may never know it, Klavan's case seeks to break new ground for
patients who wish to refuse extraordinary medical care as they near death. For
years, many doctors have ignored patients' living wills, concerned they could
be sued for malpractice if they didn't try to save a life. Now Klavan's lawsuit
is part of a new wave of cases that is sending a different message: that
doctors can be sued if they don't follow their patients' wishes.
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"Physicians are beginning to understand that the only way they'll get in
trouble is if they don't do what the patient wanted -- that's why this case is
important," says George Annas, attorney and chair of the health law
department at Boston University's School of Public Health.
Klavan drew up his living will in 1993, haunted by memories of his father's
demise after a debilitating stroke. In the will, Klavan
directed doctors to "withhold or withdraw treatment that merely prolongs my
dying" if he became incurably or irreversibly ill. He appointed his wife to
act as his legal proxy if he could not speak for himself.
What makes his case so controversial and murky is the way he became so ill.
On the morning of April 30, 1997, Klavan, the chief of obstetrics and
gynecology and a member of the board of directors of the Crozer-Chester Medical
Center in Upland, Penn., was found unconscious in his office at the hospital.
Around him were several pill bottles and at least four suicide notes. He was rushed to the emergency room,
where doctors pumped his stomach, treated him with medications, and put him on a
No one, including Klavan's attorneys, is critical of the life-saving
treatment he was initially given by the emergency staff. The dispute begins a
few days later, after Klavan's family and attorneys had informed hospital
officials of his living will.
By May 4, according to the lawsuit, Klavan had deteriorated into what his
attending physicians called "a persistent vegetative state" that left
him "with little to no likelihood of meaningful recovery." At that
point, court filings indicate, his doctors agreed to reduce his level of care
and to honor his directives. But when his condition subsequently worsened, the
doctors resuscitated Klavan and put him back on a ventilator -- without
notifying his wife.
A few days later, Klavan suffered a massive stroke that left him "a
prisoner in his own body," his attorney stated in a court filing. "This
is what he always dreaded," Klavan's long-time friend and court-appointed
legal guardian, Philadelphia attorney Jerome Shestack, told The Philadelphia
Inquirer last year. (Shestack and Klavan's attorneys now decline to discuss
the case with the press.)