The Three Faces Of Eve Elder Law Driven By Infamous Cases, Lack Of Legal Documents By Miles Tager Editor’s Note; The Mountain Times presents the third in the series on Elder Law and end-of-life issues, examining the most notorious cases that have driven those issues into the law books and the public’s eye. The irony most often mentioned by those deeply involved in the issues surrounding end-of-life care is that although they are commonly associated with the infirm and elderly, some of the most tragic and landmark cases all involved young people. Specifically, three cases involving young women, all struck down in their prime, have over the course of the past thirty years defined the legal and ethical quagmires confronted by families, medical and legal professionals. Karen Anne Quinlan, a 21 year-old from New Jersey, was admitted unconscious to the hospital after drinking and taking tranquilizers at a party in 1976. Doctors saved her life, but she suffered brain damage and lapsed into a persistent vegetative state. Breathing through a respirator, she remained unresponsive, and after three and a half months of no change her parents decided to authorize discontinuing its use. The physician, citing moral reasons, refused, and told the parents that since their daughter had turned 21 they were no longer automatically her legal guardians. In a New Jersey courtroom, the first time a right-to-die case came through the legal system for resolution, the Quinlans cited the constitutional right to privacy and the Eighth Amendment clause of “cruel and unusual punishment.” Losing their case, the Quinlans appealed to the New Jersey Supreme Court; who accepted the right to privacy argument and overturned the lower court decision. In an equally landmark ruling, the top court set aside criminal liability and held that removal of the respirator did not constitute homicide. Doctors were ordered to remove the breathing device as per the parents instructions, but in a final twist Karen kept breathing without help, and was removed to a chronic care facility, then a nursing home, where she finally died at age 31. The Quinlan case set the precedent for a patient’s – or their advocate’s - right to decline life-sustaining treatment. That such a contentious idea still depended on a doctor’s or judge’s interpretation became very evident during the Nancy Cruzan case only two years later. Cruzan, also in her twenties, crashed her car, and while EMT’s restored heart and breathing function, she never regained consciousness from her extensive injuries, including severe brain damage. It was estimated she had remained without oxygen to the brain for up to fourteen minutes, with permanent brain damage resulting from a span of less than half that time. Like Quinlan, she ‘progressed’ from a coma to persistent vegetative state, and was given a feeding and hydration tube with her husband’s consent. But as Nancy showed no sign of response or improvement over time, her parents, who had been appointed legal co-guardians, decided to terminate the care. The hospital refused to do so without a court order, That case brought into account the patient’s stated wish that she would not want to be kept alive under such conditions, and that a person had a fundamental right under both state and federal law to refuse or direct the withdrawal of “death prolonging procedures.” Representing the state hospital, Missouri appealed, and got the Missouri Supreme Court to overturn that order. The High Court found that although admittedly in a persistent vegetative state, Cruzan was neither dead nor terminally ill by Missouri’s statutory definitions, and her right to die secondary to the hospital’s commitment to preserve life. The justices further ruled that a casual conversation with a roommate about end-of-life issues did not reliably constitute her intent to have treatment removed. The U.S. Supreme Court, in a first-ever ruling on a end-of-life case, upheld (by one vote) that decision, but an additional witness, who came forward as the case generated national publicity, would testify in a new state trial that Cruzan had in no uncertain terms stated she would not wish to be kept alive in such a state. Cruzan died in 1990, two weeks after nutrition and hydration devices were removed. The third case, that of Terri Schiavo in Florida, is still being bitterly pursued by both sides, with a husband and parents of the forty year-old woman fighting over her right to live or die. Unlike Quinlan and Cruzan, the family of Terri Schiavo, who suffered severe brain damage fourteen years ago in a reaction to an eating disorder, have been fighting each other, not the system, in how to respond to her condition. As with Cruzan, debate has also raged over what constitutes a persistent vegetative state, and in line with both previous cases, no determining paper work - Advance Directive or Health Care Power of Attorney - had been prepared beforehand to give clear direction of the patient’s will. On October, 2003, after a lower court and Appeals court ruled in favor of husband Michael Schiavo that Terri would have wanted her condition ended, the feeding tube was removed, but only two days later Florida Governor Jeb Bush and the Florida legislature passed a Special Law granting the governor authority to issue a stay on orders to withhold nutrition or hydration. That move looks to be headed to the Florida Supreme Court, with a circuit court judge ruling the so-called ‘Terri’s Law’ unconstitutional. One commentary on the Schiavo case, written by Russell E. Carlisle for (but not reflecting any stance of) the National Academy of Elder Law Attorneys, said that “Everyone preparing advance directives should heed lessons learned from the Schiavo case. The absence of a written advance directive stating your wishes for the application or withholding of nutrition and/or hydration is an invitation to disaster, notwithstanding current statutes or how diligently the courts follow them. Statutes can change, and governors and legislators will follow their own beliefs or political opportunities…”