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.
"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 ventilator.
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.
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."
The Right to Die Is Not Absolute
Doctors say the conflict between patient autonomy and a physician's obligation to do no harm places them in a difficult ethical bind.
"The right to die is not absolute," wrote Crozer-Chester attorneys in their motion to dismiss Klavan's federal suit. "The right is balanced against the state's interest in protection of third parties, prevention of suicide, and protection of the ethical integrity of the medical community and preservation of life. Society has not yet reached the point where medical caregivers' well-meaning efforts to save a professional colleague's life are regarded as indecent, atrocious, and intolerable."
Loren Stein, a journalist based in Palo Alto, Calif., specializes in health and legal issues. Her work has appeared in California Lawyer, Hippocrates, L.A. Weekly, and The Christian Science Monitor, among other publications.