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Forced to Live

Marshall Klavan wanted to die. His physicians wanted him to live. Who had the right to decide?

The Stuff of Tragedy

In 1999, Shestack, acting on Klavan's behalf, sued six treating physicians, the hospital, and its president in a "wrongful life" case. The suit, filed in federal court, charged the doctors with violating Klavan's constitutional right to refuse unwanted medical treatment and asked that the hospital foot the $100,000-a-year bill for the 68-year-old physician's continuing nursing home care.

"You have the right to accept or reject medical treatment -- even if that request will compromise your health or lead to your death," attorney James Lewis Griffith, who filed the suit for Klavan and Shestack, told The Legal Intelligencer, a Philadelphia publication in 1999.

Last August, the federal case was dismissed by U.S. District Judge Stewart Dalzell, who ruled that it should be taken up in state court instead. Despite his ruling, Dalzell was clearly moved by the case. "This is a sad and novel action; the stuff of tragedy," he wrote in his opinion. "Dr. Klavan's situation cries out for prompt and definitive judicial resolution."

That resolution may be a while in coming: A companion suit filed in state court charging medical battery, emotional distress, and breach of contract has yet to be scheduled for trial.

The case is not the first to try to make doctors liable for disregarding a patient's living will. In 1996, for example, a Michigan jury awarded $16.5 million in damages to a woman left with irreversible brain damage and in severe pain after doctors refused to follow her advance directive. But the Klavan case has attracted a great deal of attention in medical and legal circles because it pits a doctor against his former colleagues and because Klavan had made his last wishes so clear.

Experts disagree, however, on the strength of Klavan's case. To some, the fact that Klavan tried to kill himself raises the question of his mental competence -- both when he signed his living will and when he reiterated his request to be allowed to die in one of his suicide notes. Paul W. Armstrong, the attorney who represented Karen Ann Quinlan's family in their landmark 1976 case that helped establish the right to die, believes the attempted suicide muddies the waters and will allow the hospital to prevail. But others say Klavan's ordeal seems likely to expand patient autonomy by giving living wills the force of law even when a patient's illness stems from a suicide attempt. "Because his wishes were clear, I think this is a very strong case," says Annas.

Doctors No Longer "Godlike"

Legally competent patients won the right to refuse medical treatment in a series of landmark court cases beginning in the 1970s. Advance directives such as living wills and health-care powers of attorney or proxies are now legally binding in every state. Federal legislation passed in 1990 also helps alert patients to their right to execute advance directives.

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