By: Barry E. Haimo, Esq.
January 24, 2014
Living Will: Hospital Keeps Brain Dead Pregnant Woman Alive Against Her and Her Family’s Wishes
In Texas, paramedic Marlise Munoz has been unresponsive since November when her husband found her on the kitchen floor of their home. While she is currently being kept alive on life support, her family knows that she would not want that treatment, because she executed a living will. The issues are two-fold: 1) she didn’t provide for pregnancy in her living will. Should she have done so? 2) Texas state law states that “life-sustaining treatment” cannot be withheld from a pregnant patient, regardless of her wishes or the age of the fetus. The family is fighting to have her life support removed while the hospital refuses, arguing that she is still a pregnant patient and cannot violate the statute. Some commentators have speculated that this Texas statute is circuitously legislating abortion rights. The hospital argues that her living will does not provide for the contingency if she is pregnant. There is an emergency hearing scheduled for today, January 24, 2014, to resolve this issue.
Click here to read the full article on CNN.
Health Care Surrogate and Living Will
A health care surrogate is similar to a power of attorney, but different than a living will. It appoints someone to act on your behalf, but is limited to health care decisions rather than financial and administrative affairs. This is an important document because it empowers you to determine who will make your health care decisions in the event that you are unable to do so yourself. Too often people fail to execute this relatively simple document. Consequently, someone with whom you may not approve may be charged with making important decisions on your behalf. Note, again, this document is different from a living will, which expresses your wishes as to whether to be artificially prolonged on life support in the event that you are in a terminally ill or in a persistent vegetative state. The unfortunate case of Terri Schiavo depicts the need for that document. In that case which received national exposure, a woman’s parents fought her husband for four many years in court over the decision to keep her alive artificially on life support. Schiavo did not have a living will and her family paid the ultimate price.
Definition of Brain Death
In nearly every state, if not all states, a person is deemed dead if their brain does not function at all. If taken off life support, their body will pass away on its own fairly quickly. This is often referred to as “Brain Death”. When someone is Brain Dead, medically, there is no hope for a recovery. Therefore, you would assume that a person who is Brain Dead is no longer a patient and should not be kept alive artificially. However, in addition to Munoz, unfortunately, another case gained national attention recently for similar reasons.
The Case of Jahi McMath
Sadly, in California, Jahi McMath, suffered complications following what normally is routine surgery, and she is currently “brain dead” as was ruled by the court. Her family fought to have her moved to another facility, which would require the performance of additional medical procedures. Like Munoz’s case, Jahi’s case gained national attention because the hospital refused to continue treating her and wanted to remove her life support, thus ending her life. The family fought to have her moved to a new facility in the hopes of a recovery. The court became involved and ultimately ordered her moved. Unlike Munoz, Jahi (a teenager) did not have a living will expressing her wishes.
Why It’s So Controversial
Obviously, these cases are extremely tragic and sad. Few people in the world can truly empathize with their families’ pain and suffering relating to the loss and the struggle. The case involving Munoz in particular is controversial for at least three reasons: 1) it involves a woman who in fact did execute a living will expressing her wishes not to be artificially prolonged on life support, and yet here she is almost two months later being kept artificially alive on life support against her wishes. Importantly, she was a paramedic and therefore familiar with medical consequences of her actions; 2) The hospital is relying on Texas state statute to keep her alive in violation of her wishes, which is tantamount to an unconstitutional abortion statute; and 3) Upholding the statute would ensure the baby — which is said to have severe defects resulting from the trauma – to be carried to term in a deceased person’s body and raised by the father against his and her [Munoz’s] wishes.
Living Will as a Frame Work for End-Stage Life Decision Making
Obviously you cannot predict the future or we’d all be very wealthy and safe. Executing a living will is part of most estate plans and represents an important step in planning for you and your family’s futures. It provides a framework for handling your end-stage life in the event that you enter a persistent vegetative state or have a terminal illness. It’s important to realize that this Texas statute is not common place in other states, and that it’s nevertheless still very important to execute this document if you feel strongly about these issues. You cannot plan for every contingency, but you can establish a framework for most situations. Most of our clients execute a living will as part of their basic estate plan.
Estate plans include appointing fiduciaries for probate, as well as guardianship of minor children. They designate the beneficiaries of assets and, if necessary and done right, usually have some asset protection benefits too. Part of every estate plan should include a power of attorney, health care surrogate and a living will. As shown above, there are unforeseeable contingencies, but a living will represents an excellent framework for handling end-stage situations. Coupled with a power of attorney and other estate planning documents, you can ensure your family has a plan for whatever life brings, both good and bad.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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