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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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The Stuff of Tragedy continued...

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.

It's one thing for patients to gain the right to pull the plug; it's quite another to hold doctors personally liable if they don't comply with a patient's wishes. And up to now, courts have been reluctant to "impose liability on a caregiver for not following directives," says attorney Robyn Shapiro, director of the Center for the Study of Bioethics at the Medical College of Wisconsin.

Now that may be changing. "Jurors in the past were unwilling to fault physicians, especially in [taking actions] that prolong life," says Carol Sieger, staff attorney with New York-based Partnership for Caring, a counseling and advocacy group that invented the living will in 1967. "Now jurors no longer view doctors as godlike, parental figures. They're more willing to hold them accountable."

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