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Forced to Live

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

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.

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