1 There is a large and growing literature on the problems confronting dying patients in hospitals. Some of the best volumes include The Dying Patient (O. Brim ed. 1970); Ethical Issues in Death and Dying (R. Weir ed. 1977); H. Feifel, New Meanings of Death (1977); E. Kubler-Ross, On Death and Dying (1969); D. Sudnow, Passing on (1967); R. Veatch, Death, Dying and the Biological Revolution (1976); G. Williams, The Sanctity of Life and the Criminal Law (1957). See also Annas, Death and Dying, Civ. LIB. REV., July 1978, at 71 (“Round-up Book Review”).

There is also a growing consensus that the wishes of a previously competent patient, expressed in a document often termed a “living will,” should be honored. See, e.g., Bok, Personal Directions for Care at the End of Life, 295 New England J. Med. 367 (1976)Google Scholar; Raible, The Right to Refuse Treatment and Natural Death Legislation, Medicolegal News, Fall 1977, at 6; Note, Informed Consent and the Dying Patient, 83 Yale L.J. 1632 (1974)Google Scholar. Most of the law review articles written on the Quinlan case to date have suggested that many of the problems posed by that case could be alleviated by “living will” legislation. See, e.g., Note, The Legal Aspects of the Right to Die: Before and After the Quinlan Decision, 65 Ky. L.J. 823, 872-79 (1976-77)Google Scholar Note, In Re Quinlan: Defining the Basis for Terminating Life Support Under the Right of Privacy, 12 Tulsa L.J. 150, 164-66 (1976)Google Scholar.

2 In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). This case involved a young woman who, following an episode of unresolved etiology, was in a “chronic persistent vegetative state.” While not brain-dead, she had neither cognition nor sapience, and experts believed she could not survive without the aid of a mechanical ventilator. Although the ventilator was removed following the decision of the New Jersey Supreme Court, as of this writing Karen Quinlan continues to live and is being cared for in a New Jersey nursing home.

3 Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977). Joseph Saikewicz was a 67-year-old man with an I.Q. of 10 and a mental age of about three years when, on April 19, 1976, he was diagnosed as having acute myeloblastic monocytic leukemia. Chemotherapy is the treatment of choice, and while it causes many unpleasant side effects, there was evidence that it would have afforded him a 30 to 50 percent chance of remission for 2 to 13 months or more. After a hearing, a probate court judge decided, on May 13, 1976, that Mr. Saikewicz would be better off without the treatment, and the Massachusetts Supreme Judicial Court affirmed this decision on July 9, 1976. On September 4, 1976, Mr. Saikewicz died of bronchial pneumonia, a complication of leukemia, apparently without pain or discomfort The court's opinion, explaining its July 9, : 1976 action, was handed down on November 28, 1977. Mr. Saikewicz's retardation was the crucial issue in the case which was complicated by the fact that “there has been no consensus within the [medical profession] on what constitutes appropriate medical intervention in mentally retarded patients with major medical needs.” Nelson, & Crocker, The Medical Care of Mentally Retarded Persons in Public Residential Facilities, 299 New England J. Med. 1039, 1041 (1978)Google Scholar. See Glantz & Swazey, Decisions Not to Treat: The Saikewicz Case and its Aftermath, Forum on Medicine, Jan. 1979, at 22.

4 Relman, The Saikewicz Decision: Judges as Physicians, 298 New England J. Med. 508, 509 (1978)Google Scholar.

5 Relman, The Saikewicz. Decision: A Medical Viewpoint, 4 Am. J. L. & Med. 233, 234 (1978)Google Scholar.

6 Id. at 241.

7 See E. Kübler-Ross, On Death and Dying (1969).

Responding to those who think such issues are exclusively medical, Professor Norman Cantor, of Rutgers Law School has noted:

Cantor, Quinlan, Privacy, and the Handling of Incompetent Dying Patients, 30 Rutgers L. Rev. 243 n.2 (1977).

8 In the spring of 1978, the Massachusetts Medical Society and the Massachusetts Hospital Association asked the state legislature to enact a statute that would define death, “legalize” the “living will,” authorize proxy consent to the withholding of treatment for incompetents, and provide immunity for physicians from possible criminal or civil sanctions for making any decisions concerning the dying under the statutory mechanisms suggested. See Carroll, Who Speaks for Incompetent Patients? The Case of Joseph Saikewicz, Trustee, Dec. 1978, at 19, 24. The proposed statute was hastily and poorly drafted, suffering from defects that are almost inevitable in such a grab-bag approach to a complex social issue. While pieces of the proposal, like the “living will,” deserve support, the thrust of the proposal was to provide immunity to physicians in an area where it is both inappropriate and unnecessary. The bill was referred to study committee, and is likely to reappear in some form during the 1979 legislative session. As of this writing, the proposed legislation continues to be supported by the Massachusetts Hospital Association, although at a legislative forum on December 15, 1978, the President of the Massachusetts Medical Society, Dr. Russell Rowell, indicated that because of the Dinnerstein case, In re Dinnerstein, 1978 Mass. App. Adv. Sh. 736, 380 N.E.2d 134 (1978), his organization no longer believed such legislation was necessary.

9 See In re Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (Ch. Div. 1975). For example, Dr. Sidney Diamond testified that “no physician would interrupt the use of the respirator and that the continued use of the respirator does not deviate from standard medical practice.“ Id. at 247, 348 A.2d at 812. “Dr. Morse [Karen Quintan's attending physician] … refused to concur in the removal of Karen from the respirator. It is his considered position that medical tradition does not justify that act.” Id. at 259, 348 A.2d at 819.

10 70 N.J. at 44, 355 A.2d at 665.

11 Id. at 46, 355 A.2d at 666.

12 Id. at 49, 355 A.2d at 668.

13 1977 Mass. Adv. Sh. at 2471, 370 N.E.2d at 423.

14 Id. at 2473, 370 N.E.2d at 424.

Id. (quoting Lewis, Machine Medicine and Its Relation to the Fatally III, 206 J.A.M.A. 387 (1968) (latter emphases added)).

15 1977 Mass. Adv. Sh. at 2474-75, 370 N.E.2d at 424; 70 N.J. at 39, 355 A.2d at 663.

16 Id. at 41, 355 A.2d at 664.

17 John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971). While one could argue that since Heston's family did want the surgery the only added invasion was the blood transfusions, the language of the Heston court makes it clear that the court also would have approved of the surgery had consent been withheld. The post-Roe v. Wade justification would be the state's interest in preserving life under these circumstances. The pre-Roe v. Wade justification that should not survive Quinlan was the Heston court's finding that “[w]hen the hospital and staff are … involuntary hosts and their interests are pitted against the belief of the patient, we think it reasonable to resolve the problem by permitting the hospital and its staff to pursue their functions according to their professional standards.” Id. at 583, 279 A.2d at 673. See also Note, The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State, 51 N.Y.U.L. Rev. 285 (1976)Google Scholar.

18 70 N.J. at 39, 355 A.2d at 663.

19 The other two interests identified are the protection of innocent third parties, and the prevention of suicide. The first was not an issue in the case since Mr. Saikewicz had no dependent relatives. Even if he had, one can question whether the interests of third parties should be permitted to overcome an individual's interest in self-determination. The second interest, prevention of suicide, was dismissed in a footnote that ended with the following sentences:

1977 Mass. Adv. Sh. at 2480, 370 N.E.2d at 426 n.11.

An almost identical view of this question was enunciated by the Quinlan court: “We would see … a real distinction between the self-infliction of deadly harm and a selfdetermination against artificial life support or radical surgery, for instance, in the face of irreversible, painful and certain imminent death.” 70 NJ. at 43, 355 A.2d at 665.

Neither court, however, discussed the societal implications of decreeing suicide an acceptable behavior. See, e.g., Hook, The Ethics of Suicide, in BENEFICENT EUTHANASIA 57 (M. Kohl ed. 1975). Hook notes that the advocacy of suicide led a French physician, Dr. Binet-Sangle, to suggest, in his L'Art de Mourir (1919), the establishment of un institut d'euthanasie. More recently, Kurt Vonnegut has suggested that population pressures may make suicide an accepted social behavior, which a government might encourage by establishing “suicide parlors” in which people could voluntarily commit suicide with the aid of an attendant. See Vonnegut, K., Welcome to the Monkey House, in Welcome to the Monkey House 28 (1970)Google Scholar. See also Cantor, A Patient's Decision to Decline Life-saving Medical Treatment: Bodily Integrity Versus the Preservation of Life, 26 Rutgers L. Rev. 228 (1973)Google Scholar; Delgado, Euthanasia Reconsidered—The Choice of Death as an Aspect of the Right of Privacy, 17 Arizona L. Rev. 474 (1975)Google Scholar; Note, Suicide and the Compulsion of Lifesaving Medical Procedures: An Analysis of the Refusal of Treatment Cases, 44 Brooklyn L. Rev. 285 (1978)Google Scholar.

20 1977 Mass. Adv. Sh. at 2478, 370 N.E.2d at 426.

21 Id. Cf:

Delgado, supra note 19, at 483.

22 Id. at 2480, 370 N.E.2d at 426.

23 Id. at 2481, 370 N.E.2d at 427 (footnote omitted).

24 70 N.J. at 41, 355 A.2d at 664.

25 1977 Mass. Adv. Sh. at 2483, 370 N.E.2d at 427.

26 70 N.J. at 41, 355 A.2d at 664.

27 Id. at 41-42, 355 A.2d at 664. This approach has been strongly criticized by the courtappointed guardian of Karen Quinlan who, while agreeing with the outcome of the case, argued that the court had no evidence at all on which to reach this conclusion concerning what the rest of society would do in similar circumstances. Coburn, In re Quinlan: A Practical View, 31 Ark. L. Rev. 59, 67-69 (1977)Google Scholar. See also Corbett, & Raciti, Withholding Life-Prolonging Medical Treatment from the Institutionalized Person—Who Decidest 3 New England J. Prison L. 47, 72-73 (1976)Google Scholar.

28 1977 Mass. Adv. Sh. at 2492, 370 N.E.2d at 431.

29 Id. at 2494, 370 N.E.2d at 432. All this, of course, is just another way of saying that chemotherapy should not be used on retarded individuals where the probability of success is limited. The court could have avoided this result by adopting the test of judicial review used by Justice Quirico in Nathan v. Farinelli, Mass. Suffolk Eq. 74-87 (1974), who found the only logical test in a similar circumstance of proxy consent was whether the decision was “fair and reasonable” under the circumstances.

30 While an argument can be made that Karen's parents were in a position to determine what decision she would make, Paul Ramsey argues persuasively that the Saikewicz court projected “the unknowable into the unknown” and must be viewed as substituting its subjectivity for Mr. Saikewicz's. Ramsey; The Saikewicz Precedent: What's Good for an Incompetent Patient? Hastings Center Rep., Dec. 1978, at 36, 39.

That the Massachusetts Supreme Judicial Court has made no final determination on the proper standard is clear from its post-Saikewicz decision ordering (against the wishes of the parents) chemotherapy for a two-year-old boy with a reasonable chance of cure. In re Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2031-34, 379 N.E.2d 1053, 1065-66 (1978). See also Baron, Botsford, & Cole, Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U.L. Rev. 159 (1975)Google Scholar. Probably the primary reason for adopting the “substituted judgment” over the “best interests” test in both cases was that very good arguments can be mustered to demonstrate that continued treatment was actually in the best interests of both Karen Quinlan and Joseph Saikewicz. To the extent that this is true, it is another example of the old adage that “hard cases make bad law.” For a discussion of the doctrineof “substituted judgment,” see Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 Colum. L. Rev. 48 (1976)Google Scholar.

31 70 N.J. at 49, 355 A.2d at 669 (quoting Teel, The Physician's Dilemma: A Doctor's View: What the Law Should Be, 27 Baylor L. Rev. 6, 8-9 (1975)). Note that the court made no independent determination of who should sit on such a committee, how they should be appointed, or how they should proceed. Instead it relied entirely on a quotation from Dr. Teel's article, which said in relevant part: “Many hospitals have established an Ethics Committee composed of physicians, social workers, attorneys, and theologians, … which serves to review the individual circumstances of ethical dilemma and which has provided much in the way of assistance and safeguards for patients and their medical caretakers.” 70 N.J. at 49, 355 A.2d at 668 (quoting Teel, supra, at 8-9). It should also be pointed out that Dr. Teel's “article” is actually a four-page speech and her suggestions were not the result of any elaborate comparison of alternatives. The court reveals its knowledge of this by its use of ellipses in the above quotation to replace the words “(known irreverently in some circles as the ‘God Squad’).” None of my remarks are meant to reflect on Dr. Teel, who acknowledges at the beginning of her speech that she has no credentials in “medical ethics, forensic medicine, [or] theology,” but is speaking from “the perspective of a single practicing pediatrician who cares for infants and children and their families.” Id. at 6.

32 70 N.J. at 50, 355 A.2d at 9.

33 Id. at 54, 355 A.2d at 671.

34 Id. It cannot be overemphasized that the issue for the New Jersey court was one of prognosis: “The evidence in this case convinces us that the focal point of decision should be the prognosis as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the forced continuance of that biological vegetative existence to which Karen seems to be doomed.” Id. at 51, 355 A.2d at 669. The holding is precise:

Id. at 54, 355 A.2d at 671 (emphasis added; footnote omitted). In other words, the only benefit received from going to an “ethics committee” is what the physicians wanted: legal immunity. Since the only relevant legal issue is prognosis, one obtains no ethical insights, only legal comfort. It is the Massachusetts Supreme Judicial Court's refusal to permit such “rubber stamp,” nonjudicial granting of legal immunity that has so upset the Massachusetts hospital and medical community. In almost every other respect, the Quinlan decision, which Relman endorses, and the Saikewicz decision are identical. See Annas, In re Quinlan: Legal Comfort for Doctors, Hastings Center Report, June 1976, at 29.

New Jersey, however, understandably remains confused over the proper role of such a committee. At the Morris View Nursing Home, for example, where Karen Quinlan is currently a patient, an ethics committee was formed when the nursing home knew she would be coming there. It consists of a physician, an attorney, two clergymen, a social worker, and the chairman, who is also Chairman of the Morris County Welfare Board, which manages the nursing home. This committee apparently sees itself not as a “prognosis committee” but as a committee to deal with “ethical issues.” This view may account for the fact that to date the committee, while it has met, has never decided anything and has not yet even devised a method for reaching a decision. Esqueda, Hospital Ethics Committee: Four Case Studies, The Hospital Medical Staff, Nov. 1978, at 26, 26-27. Nevertheless, the ethics committee approach has not been without defenders. See, e.g., Note, In re Quinlan: One Court's Answer to the Problem of Death with Dignity, 34 Wash. & Lee L. Rev. 285, 305-07 (1977)Google Scholar.

35 Apparently in recognition of this, the New Jersey attorney general's guidelines for setting up such committees describe them as “prognosis committees.” See Hirsch, & Donovan, The Right to Die: Medico-Legal Implications of In re Quinlan, 30 Rutgers L. Rev. 267, 286 (1977)Google Scholar.

36 See Harper & James, The Law of Torts, § 17.3, at 977 (1956); Waltz & Inbau, Medical Jurisprudence, Ch. 4, at 38 (1971); Morris, Custom and Negligence, 42 Colum. L. Rev. 1147, 1163-68 (1942)Google Scholar. There are a handful of exceptions to this general rule, most based on The T. J. Hooper, 60 F.2d 737 (2d Cir. 1932), but these cases only tend to prove the general rule, and also demonstrate that ultimately courts must decide what the proper standard should be if innocent third parties are to be protected. See, e.g., Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974) (physicians liable for not performing glaucoma test on young woman who subsequently went blind, even though such testing was not standard medical treatment, because the test was accurate, simple, inexpensive, safe, and detected a serious, arrestable condition). On this case see Note, Comparative Approaches to Liability for Medical Maloccurrences, 84 Yale L.J. 1141 (1975)Google Scholar.

37 See, e.g., Robertson, Involuntary Euthanasia of Defective Neuiboms: A Legal Analysis, 27 Stan. L. Rev. 213 (1975)Google Scholar; Commonwealth v. Edelin, 1976 Mass. Adv. Sh. 2795, 359 N.E.2d 4 (1976); and the following language in the Quinlan opinion:

70 N.J. at 51-52, 355 A.2d at 669-70 (1976). See also Note, The Termination of Life-Support Measures and the Law of Murder, 41 Modern L. Rev. 423 (1978)Google Scholar.

38 Mr. Saikewicz died, apparently peacefully, within three months of the original court decision to permit the withholding of chemotherapy, but more than a year before the supreme judicial court issued its opinion justifying this action. There was never a full adjudicatory hearing on the issue of treating Mr. Saikewicz, and all lawyers and physicians who appeared before the lower court argued against treatment. If an attorney had been appointed to argue that treatment was indicated, it seems likely that treatment would have been ordered. On the lower court proceedings, see Kindregan, The Court as Forum For Life and Death Decisions: Reflections on Procedures for Substituted Consent, 11 Suffolk U. L. Rev. 919 (1977)Google Scholar.

The testimony supports such a conclusion; it was inexact and was based entirely on the opinions of the physicians involved. The same physician who testified that remissions vary from “two months to thirteen months,” for example, also testified that they occur in “forty to fifty percent of treatments,” In re Saikewicz, No. 45596, Transcript of Proceedings 15 (Mass. Probate Court, Hampshire County May 13,1976), and that “If we give him the chemotherapy, he will become very sick and if we treat him intensively, then he might live indefinitely and recover. Q. You say that he might live indefinitely? A. I am saying for a year or so.” Id. at 22 (emphasis added). Another physician, who put the probability of a remission at 30 percent, testified, “We gave a great deal of thought to whether he should be treated because it wasn't a straight forward issue. One issue certainly had to be, what was the quality of his life as we saw it and how we'd influence this one factor… .” Id. at 24-25 (emphasis added). Near the close of the testimony, the judge made this observation:

Id. at 29. Again, at the close of the testimony, the judge said: “I am inclined to give treatment.” Id. at 31. Only unanimous and vigorous objection changed his mind. Id. at 33. See Baron, Assuring “Detached but Passionate Investigation and Decision”: The Role of Guardians Ad Litem in Saikewicz-type Cases, 4 Am. J . L. & Med. 111, 120-22 (1978)Google Scholar.

39 1977 Mass. Adv. Sh. at 2499, 370 N.E.2d at 434.

40 Id. at 2501, 370 N.E.2d at 435.

41 Id.

42 Id. at 2468, 370 N.E.2d at 421.

43 An alternative way to state the issue from the physician's point of view is: “Can I discontinue treatment without fear of liability for medical malpractice or homicide?” Stated this way, the role of the courts is even clearer, since courts ultimately set and apply the standards for both negligence and criminal liability. No one would think it strange to ask a court whether doing “X” was either a negligent or a criminal act. In essence, it is this question that both courts are being asked. One is able to answer it on the basis of medical prognosis, the other is not.

An analogous differentiation has been made in the literature concerning the insanity defense. Expert witnesses are generally permitted to testify on what are termed “medical facts” (for example: Did the defendant suffer from a mental disease or disorder? Was he capable of knowing right from wrong?), but not on the ultimate issue of responsibility, which is generally characterized as a “legal standard” to be decided only by the jury. See, e.g., A. Goldstein, The Insanity Defense 97-101 (1967).

Where, as in Quinlan, the “medical facts” are determinative and uncontested, there is arguably no need for any judicial review, since the “medical facts” have been formally adopted as a “legal standard” themselves.

44 Professor Charles Baron of Boston College Law School urges the court to insist that a true adversary proceeding take place. Baron, Assuring “Detached but Passionate Investigation and Decision”: The Role of Guardians Ad Litem in Saikewicz-type Cases, 4 Am. J. L. & Med. 111 (1978)Google Scholar.

The importance of such a judicial hearing is well illustrated by Dr. Relman's assertions about Kerri Ann McNulty. He describes her as a child “born with congenital rubella (German measles) found to be blind, deaf, and seriously mentally defective.” Relman, supra note 5, at 238. Relman describes this case as “distressing” and an “unhappy example of the Saikewicz decision.” Id. at 239.

This case illustrates a type of “eugenic” abuse that may be taking place frequently in the hospitals of Massachusetts. The “medical facts” of the case turned out to be much different than initially characterized. After a full hearing, Judge Henry R. Mayo concluded: “[T]he child has serious medical problems including cataracts on both eyes and perhaps additional eye complications. She appears to be deaf… . It is highly probable that she has some degree of mental retardation, the extent of which cannot yet be determined… . [S]he can survive if properly treated. In re McNulty, No. 1960, Findings of Fact 3-4 (Mass. Probate Court, Essex County Div. Feb. 15, 1978) (emphasis added). In other words, “blind, deaf, and seriously mentally retarded” are conclusions all of which are at least premature, if not inaccurate. Under such circumstances, how can it ever be in a child's “best interests” to die rather than to live? And the idea of accurately testing the mental ability of an infant who cannot see or hear is ludicrous on its face. Even if such a measurement could be made, however, the decision whether to treat is still a societal rather than a medical one. In this regard the Saikewicz decision is clear; it calls for court review anytime one proposes to withhold a standard medical treatment that is potentially life-sustaining from an incompetent under circumstances where a competent patient might choose the treatment. In view of the potential abuses without such review, the remedy does not seem extraordinary. Since there is no crime of not going to court, the remedy is not automatic, and most physicians are likely to continue to make decisions knowing that they may someday face criminal or civil charges as a result (the probability of both being very low), rather than seek a declaratory judgment of the type approved in Saikewicz.

Some physicians and lawyers have argued that physicians are worse off if they don't go to court after Saikewicz, since the fact that they did not avail themselves of the declaratory judgment route suggested by the court may itself be used as evidence against them in a civil or criminal case. The argument, I take it, is that they must have been acting in “bad faith” or had something to hide, since if their actions were ethically sound, they would have gone to court. The answer, I think, is that so long as they fully document the reason for their decision, and call in an appropriate consultant on the medical prognosis issue, the allegation of bad faith can be easily rebutted by demonstrating that all actions were done openly and in accordance with good and accepted medical practice. In this regard, documentation of all orders, both in the patient's progress notes and in the physician's order sheet, signed by the physician and including an explanation for the order given, is recommended. Cf. Standards for Cardiopulmonary Resuscitation (CPR) and Emergency Cardiac Care (ECC), 227 J.A.M.A. (Supp.) 833, 864 (1974).

45 B. Cardozo, The Nature of the Judicial Process 135-36 (1921). See also Baron, Medical Paternalism and the Rule of Law: A Response to Dr. Relman, 4 Am. J. L. & Med. 337 (1979)Google Scholar.

46 See note 34 supra. For a more detailed discussion of the “ethics committee” and the problems it poses, see Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, 30 Rutgers L. Rev. 304, 319-21 (1977)Google Scholar; Hirsch, & Donovan, The Right to Die: Medico-Legal Implications of In re Quinlan, 30 Rutgers L. Rev. 267, 273-74, 280-86 (1977)Google Scholar.

47 See S. Law & S. Polan, Pain and Profit: The Politics of Malpractice (1978). The authors note that many states have made changes in their laws relating to medical malpractice as a result of heavy lobbying efforts by the medical profession and malpractice insurance companies. Id. at 100. They believe two reasons account for the popularity of such changes: (1) physicians and insurance companies wanted them badly and plaintiffs’ lawyers, “who had the most accurate understanding of the practical effects, knew that such changes would not make any significant difference,” id. at 119; and (2) “reforms which can be accomplished by changing the words of a law … are always easier to effect than reforms which require the expenditure of public funds or the creation of an agency to administer them.” Id. The authors conclude: “[R]evising a legal rule is easy. In this case, it is not likely to help.” Id.

48 Curran, Law-Medicine Notes: The Saikewicz Decision, 298 New England J. Med. 499 (1978)Google Scholar. Professor Curran reaffirmed his views in a reply to letters addressing his initial column:

298 New England J. Med. 1209 (1978) (emphasis added). While the distinction between removal and continuance of treatment is literally true, the decision to continue treatment is trivial insofar as potential liability goes, since the suit would not be for negligence or homicide, but would allege a battery. The physician's defense would be privilege, that is, that he was doing his best to save the patient's life, and the likelihood that he would lose such a suit, so long as he was acting in good faith, approaches zero.

It is, however, possible that some day there will be a successful battery suit by the patient's guardian or the administrator of his or her estate against a physician who continued treatment even though the patient had signed a living will and the patient's guardian had demanded that treatment be halted. A successful suit of this type might be more effective than legislation in encouraging physicians to take “living wills” seriously.

49 See Relman, supra note 4, at 508-09.

50 This happened at a major Boston hospital during a time when the patient's care was covered by Medicaid and the intensive care unit was not full. Needless to say, hospital administrators have an economic conflict of interest in such decisions, and should generally have nothing to say about maintaining “hopeless” patients against the wishes of the family and attending physician. Cf. Note, Euthanasia: The Physician's Liability, 10 J. Mar. J. Prac. & Proc. 148 (1976).

51 The Tay-Sachs case was reported to me by a nurse involved in the care of the infant; the Werdnig-Hoffmann's case was written up in the Boston Phoenix, May 23, 1978, at 6-7, and featured on the NBC Today Show on November 16, 1978; the defibrillation case was recounted at a meeting of the alumni of Boston University's Health Care Management Program on May 23, 1978; the pacemaker case was recounted by an attorney who was called in by a medical resident in the hospital for independent legal advice.

52 One such conference was sponsored by the Committee on Disabilities and Health Law of the Personal and Probate Section of the Massachusetts Bar Association at the Harvard School of Public Health on May 13, 1978.

53 While this is a harsh verdict, it is justified by the available evidence. For example, on April 10, 1978, the Newton-Wellesley Hospital adopted as policy the interpretation and suggestions concerning the Saikewicz case made by the Boston firm of Ropes & Gray. The hospital's executive director, William C. Christenson, in a cover memorandum addressed to each staff physician, wrote: “We must regretfully advise you that as of April 18, 1978, the Newton-Wellesley Hospital will comply with the law under the so-called ‘Saikewicz Decision'.” The memorandum later stated: “We deplore the Court's intrusion into an area which has always been highly private and deeply personal. Historically, the decision has been quietly and compassionately made by the patient and/or family and the physician. Now, the Court has established a cumbersome and expensive procedure which attracts notoriety.”

Attached to this memorandum was another directed to the Management Council, Nursing Supervisors, and Head Nurses, and a copy of the hospital legal counsel's interpretation of the Saikewicz opinion. Memorandum, Inability or Refusal of Patient to Consent to Life-Saving or Life-Prolonging Treatment. While granting that “the possibility of a doctor or nurse being prosecuted and convicted for withholding life-prolonging treatment, based on prior experience, seems remote,” id. at 1, the attorney's memo explained how liability could be avoided with certainty. The memorandum first discussed the competent patient: “Perhaps the clearest situation is that a competent patient cannot refuse life-prolonging treatment if she is pregnant and the refusal of treatment will adversely affect the fetus.” Id. at 2. When asked by Leonard Glantz whether the writers of this memo had considered the implications of Roe v. Wade on this issue, a member of the firm replied that they had not.

As to who can be considered a “competent patient,” the memo suggested that ability “to comprehend the English language” is a prerequisite, as is the lack of “evidence of prior institutionalization for mental problems.” No general definition of competence was suggested. Id. at 3.

The memorandum summarized the Saikewicz case as saying that “Court approval is necessary … to withhold treatment when the patient needing medical attention is ‘incompetent'.” Id. at 3. The memo then argued that “[i]t is not clear whether the Saikewicz procedures apply where a patient is incompetent because he has experienced brain death.” Id. at 4. This is, of course, the equivalent of saying it is not clear whether physicians have an obligation to treat a corpse, since, months before, the Massachusetts Supreme Judicial Court had accepted an even broader definition of brain death than the Harvard criteria. Commonwealth v. Golston, 1977 Mass. Adv. Sh. 1778, 336 N.E.2d 744 (1977), discussed at note 55 infra. (The memorandum quoted from Golston, but argued that it is not controlling since it only defined death for the purposes of criminal and not civil liability. Id. at 4. The memorandum made the incredible suggestion that if all the Harvard brain death criteria are met, “[t]he next of kin of the patient should be consulted about disconnecting the equipment, and their written consent (including a release from liability) should be obtained.” Id. at 5. Phrased another way, this policy says that physicians should continue to treat dead people until the family releases them from liability for not treating the corpse.

The hospital's physicians were further urged not to “specify any one event as the date of death” but to note three different times: “the time and date on which the last test establishing brain death was completed, the time and date on which any artificial life support equipment was disconnected and the time and date on which the heartbeat stopped.” Id. at 5. The attorney did not suggest whether one of these three, or all of them, should be entered on the death certificate.

The memorandum advised not writing an “order not to resuscitate” without a prior court order, and suggested that the Saikewicz court requires this. Id. at 5. See the discussion of the Dinnerstein case, infra note 58 and accompanying text, on this point. It is, of course, no accident that Dinnerstein was a patient at the Newton-Wellesley Hospital, and that the hospital was represented by the same firm that wrote this memorandum. The memorandum, which was signed by Ronald B. Schram for Ropes & Gray, concluded by advising that “in some cases” the attending physician and the hospital should be represented by separate legal counsel “to avoid possible conflicts of interest.” It finally noted that although legislation is being drafted, “[i]t is unlikely … that satisfactory legislation will be approved in the near future.” Id. at 7.

Similar advice was followed outside of Boston. On June 7, 1978, for example, the medical staff of the Cape Cod Hospital received a memorandum from their chief, William P. Luke, saying: “The hospital attorney has informed us that the recent Saikowicz [sic] decision requires that a patient may no longer be ‘no coded.’”

54 A similar request in 1957 has led to more than two decades of continuing, and arguably unnecessary, litigation.

In that year the president of Boston's Peter Bent Brigham Hospital asked counsel's opinion “as to the civil and criminal liability of the Hospital and its trustees, officers and employees” if the hospital permitted its physicians to transplant a kidney from a healthy 14-year-old into his dying twin. The lawyers who responded to the letter misunderstood the only case they found on point, Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941). While they are in good company in this misunderstanding, a careful reading of the case discloses that it stands for the proposition that if a child and his or her parents consent to a procedure that does not provide the minor with any benefits, and, indeed, may cause the child harm, the procedure may be performed. Accordingly, counsel could have answered simply that if the donee understood the nature and consequences of his acts, and consented to the donation, and the parents consented, the procedure could lawfully be performed. Instead, counsel advised that the parents had no authority to consent to the kidney transplant. Counsel concluded, without case citation, that there was also “a serious danger that the procedure would involve criminal liability.” The memorandum is reprinted in Katz, Experimentation with Human Beings 964-67 (1972). Since Bonner was not a Massachusetts case, and was decided before the Nuremberg Code (which set international standards for human experimentation) had been enunciated, it could be argued that counsel correctly decided not to rely on it. But these were not the reasons counsel gave for not relying on the case, nor do they explain his misreading of it. Counsel relied on two Massachusetts cases, Banks v. Conant, 96 Mass. (14 Allen) 497 (1867), and Taylor v. Mechanics’ Savings Bank, 97 Mass. 345 (1867), holding that a parent cannot recover money paid to a child upon his voluntary enlistment in the Armed Forces. In dicta, one court said that parents had no authority to force their son to enlist against his wishes, and that the money was paid as an inducement “to undertake a service of an arduous and hazardous nature.” 96 Mass. (14 Allen) at 498. None of this contradicts the holding of the Bonner case, nor is it inconsistent with the view that the consent of both the minor and the parents is sufficient to avoid liability.

At any rate, the Peter Bent Brigham Hospital had a number of options. It could perform the procedure anyway, relying upon the consent of the minor and his parents; it could refuse to perform the procedure; or it could go to court and seek a declaratory judgment that what it was doing was legal and that the court should so declare and further guarantee that it would be free from civil or criminal liability. The hospital opted for the latter course, and thus began a series of Massachusetts cases which now have covered more than 21 years, in which hospitals and physicians routinely seek immunity for performing surgery on minor donees involved in both kidney transplants and bone marrow transplants.

On children's consent to transplants, see Annas, Glantz, & Katz, Informed Consent to Human Experimentation: The Subject's Dilemma 75-87 (1977); on the bone marrow cases, see Baron, Botsford, & Cole, Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U.L. Rev. 159 (1975)Google Scholar.

55 Months before the Saikewicz opinion, the supreme judicial court had accepted the following definition of death in a homicide case:

Commonwealth v. Golston, 1977 Mass. Adv. Sh. at 1780-81, 366 N.E.2d 747-48. Thus, when a physician says you're dead under the above criteria, which, as the court noted in Saikewicz include the Harvard brain-death criteria, you are dead beyond a reasonable doubt. Therefore, no criminal sanctions can be applied for not treating a brain-dead individual. However, since Golston left open the issue of when death occurs for civil purposes, some lawyers thought that civil immunity required a probate court order. The reason why the court left this issue open, however, is that other considerations, such as a fair distribution of an inheritance, might govern—for example, in a will contest involving simultaneous death, where one spouse had been maintained an additional day on a ventilator and declared braindead only thereafter. But none of these considerations would affect the physician's duty to treat, since when you're dead beyond a reasonable doubt, you're obviously dead by a preponderance of the evidence. In either event, there is no criminal or civil duty to treat a dead person, and taking such cases to court demonstrates great confusion on the part of the lawyers involved and an incredible fear of potential liability on the part of physicians and hospitals. In my opinion, the courts rightfully refuse to hear these cases. Two such cases are described briefly in Annas, After Saikeu'kz: No Fault Death, Hastings Center Rep., June 1978, at 16, 17.

Nineteen states have adopted new statutory definitions of death, and in August, 1978, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment in all the states the Uniform Brain Death Act, with the following provision:

The comment to the Act notes that it “does not preclude a determination of death under other legal or medical criteria,” and that the word “functioning” “expresses the idea of purposeful activity.” National Conference of Commissioners on Uniform State Laws, Uniform Brain Death Act (July 28-Aug. 4, 1978).

See generally R. Veatch, Death, Dying and the Biological Revolution 21-72 (1976); Capron, & Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. Pa. L. Rev. 87 (1972)Google Scholar; Kennedy, The Kansas Statute on Death—An Appraisal, 285 New England J. Med. 946 (1971)Google Scholar; Veith, et al, Brain Death—II. A Status Report of Legal Considerations, 238 J.A.M.A. 1744 (1977).

56 Most physicians, unfortunately for them and their patients, don't even learn enough law in medical school to do this. The 89th Annual Meeting of the Association of American Medical Colleges included a panel on “legal medicine” on October 26, 1978, in New Orleans. This was the first time anyone attending this session could recall time being given to this topic at the annual meeting. At the session, Barbara Grumet, of the Albany Medical School's Center for Health Law, reported on the results of her questionnaire survey of 118 medical schools. Of the 99 respondents, 39 claimed at least one such elective. Nevertheless, the coverage and quality of these courses were extremely uneven, with the number of hours ranging from 2 to 80.

At Boston University School of Medicine for the past four years we in the Department of Socio-Medical Sciences and Community Medicine have had a required 16-hour seminar, given near the end of the first year, in “Law and Medicine: The Rights of Patients and Their Providers.” The objectives of this seminar are (1) to introduce medical students to basic legal concepts and procedures; (2) to change students’ attitudes so that they will view the law as an important tool in their work, rather than as an obstruction; (3) to encourage students to develop patterns of self-education so that they will continue to explore legal issues; and (4) to provide students with enough information so that they will have an idea of how lawyers think and will be able both to spot a legal problem and to determine whom to approach for help in resolving it. See generally Annas, Law and Medicine: Mytlis and Realities in the Medical School Classroom, 1 Am. J. L. & Med. 149 (1975)Google Scholar, and articles cited therein.

57 Even though the quest for professional immunity seems almost unending (but see Relman, supra note 5), it is primarily founded on ignorance and fear rather than knowledge and acceptance of professional responsibility. For example, while no physician has ever been successfully sued for stopping and rendering aid to a person experiencing a medical emergency, nervous medical societies have gotten all 50 states to pass statutes immunizing physicians against suit for negligence if they do stop. Even after some of these statutes were passed, the Am. reported that only half of the physicians surveyed in 1963 said they would stop, and the response rate was unaffected by whether the state had adopted a Good Samaritan statute. Report of the Secretary's Commission on Medical Malpractice, Hew Pub. No. (OS)73-88, at 16 (1973). Similarly, in cases of medical staff discipline and reporting incompetent physicians to state licensing boards, physicians have demanded immunity from defamation suits, although almost no lawsuits have been filed in such cases. Further, the passage of these immunity statutes has not had a noticeable effect on physician disciplinary proceedings or on physicians’ reporting of their colleagues to licensing authorities, recent Am. assertions to the contrary notwithstanding. See, e.g., Ama Impaired Physician Newsletter, Dec. 1978, at 3.

Granting physicians immunity for the performance of their professional duties should almost always be seen as against public policy. Either physicians are acting as physicians— that is, treating and diagnosing patients according to their own professional ethics and “accepted medical practice”—or they are acting as nonphysicians and making decisions on some social policy grounds. If they are acting as physicians, they should be held accountable for their actions as physicians. Granting immunity in such cases is completely inappropriate, since it denies innocent potential victims compensation and encourages negligence. On the other hand, if physicians are engaged in making social policy decisions, it is even more counterproductive to grant them immunity, because with immunity they will be free to act without either knowledge or responsibility. See Annas, After Saikewicz: No Fault Death, Hastings Center Rep., June 1978, at 16.

Professor Robert Burt argues analogously that courts should not consider granting declaratory judgment in cases involving nontreatment of defective newborns, because only by putting both parents and physicians in some personal jeopardy can we insure that their actions are likely to be fair to the child involved:

Burt, Authorizing Death for Anomalous Newborns, in Genetics and the Law 435, 444 (A. Milunsky and G. Annas eds. 1976) (emphasis added). Accord, In re Nemser, 51 Misc. 2d 616, 273 N.Y.S.2d 624 (Sup. Ct. 1966) (petition for guardian to consent to treatment denied on basis that decision was a medical one for which immunity was inappropriate). See also Spencer, “Code” or “No Code”: A Nonlegal Opinion, 300 New England J. Med. 138 (1979)Google Scholar (“Sounding Board”), which argues, “As physicians we have an obligation to keep our priorities straight; to do always what we consider to be in the best interests of our patients and in keeping with our moral and ethical precepts.” Id. at 140.

58 In re Dinnerstein, 1978 Mass. App. Adv. Sh. 736, 380 N.E.2d 134 (1978). In the court's words:

Id. at 746, 380 N.E.2d at 138-39. The Executive Director of the hospital involved—Newton- Wellesley—described the role of his hospital in the Dinnerstein case: “We took leadership in resolving the ambiguities surrounding the state Supreme Court's decision in the Sakewicz [sir] case and obtained a ruling that restored the right of patients to die in peace.” Christenson, 1977-78: A Special Year, Newton-Wellesley Quarterly, Dec. 1978, at 18 (emphasis added). See also note 53 supra.

59 Law & Polan, supra note 47, at 116.

60 See note 53 supra.

61 Schram, Kane, & Roble, ‘No Code” Orders: Clarification in the Aftermath of Saikewicz, 299 New England J. Med. 875, 877 (1978)Google Scholar (“Law-Medicine Notes”). One reason the Dinnerstein case even merited mention in The New England Journal of Medicine is because of the confusion generated by previous articles and letters in the Journal itself. As the Dinnerstein court noted, citing two such pieces, its opinion was seen to be necessary by the plaintiffs because Saikewicz

1978 Mass. App. Adv. Sh. at 740-41, 380 N.E.2d at 136 (emphasis added). At one point Schram, Kane, and Roble argue that the consent of the ‘“immediate family’ should be sufficient” in “no code” situations, and cite two cases, Belger v. Arnot, 344 Mass. 679, 183 N.E.2d 866 (1962), and Reddington v. dayman, 334 Mass. 244, 134 N.E.2d 920 (1956), for that proposition. Schram, et al., supra, at 876. Neither of these cases has anything to do with a terminally ill patient; Reddington involved the consent of a father to have his daughter's tonsils removed, and Belger involved the involuntary commitment of a wife to a mental institution under a procedure that has since been changed by statute. At another point in the article the authors string together three cases, In re Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 379 N.E.2d 1053 (1978), Commonwealth v. Golston, 1977 Mass. Adv. Sh. 1778, 336 N.E.2d 744 (1977), and In re Dinnerstein, 1978 Mass. App. Adv. Sh. 736, 380 N.E.2d 134 (1978), which they assert stand for the proposition that it might be permissible for “a competent patient who is not irreversibly, terminally ill … to refuse resuscitation measures whenever his decision would, in the judgment of a competent and reasonable physician, be consistent with ‘good medical practice’.” Schram, et al., supra, at 876. None of the three cases cited involved a competent patient (Golston was a murder case, Custody of a Minor involved a two-year-old child, and the other case was Dinnerstein itself). It is, of course, not competent patients, but competent physicians who are legally required to make decisions consistent with “good medical practice.”

62 Sanders, Medical Technology: Who's to Say When We've Had Enough, Hospitals, Nov. 16, 1978, at 66, 68. It is, of course, Saikewicz which continues to be the only “final authority” in Massachusetts, any reading of Dinnerstein to the contrary notwithstanding.

63 See, e.g., R. Dworkin, Taking Rights Seriously 205 (1978):

64 Solzhenitsyn, The Exhausted West, Harvard Magazine, July/Aug. 1978, at 22.

65 This is not to say that society will soon, or ever, agree on a way to make all treatment decisions for the incompetent terminally ill patient. Indeed, since it is often a choice between death and continued suffering, the choice can be characterized as a “tragic choice,” and as such one that can be made only by sacrificing, or seeming to sacrifice, one or more societal values for others (for example, the universal sanctity of human life versus self-determination). In such situations one often sees a transfer of decision-making authority from one group to another or from one forum to another, as specific societal values are threatened. An “aresponsible” agency such as a jury or an ethics committee, for example, will be chosen to apply societal standards but not required to articulate them either because such an articulation would destroy their effectiveness (as when a decision not to treat is based on the fact that the patient is mentally retarded), or because the values on which the decision seems to be based do not exist (for example, all persons must be treated equally). The attractiveness of “parajuries” has led to their adoption in such settings as human experimentation (Institutional Review Boards) and kidney dialysis. However, when a para-jury sits on more than one case, a pattern of decision making either develops or it does not. If it does, the pattern can be articulated and applied without using the para-jury. If it does not, the para-jury is open to the challenge of arbitrariness, and a lottery, or first-come-first-served method, may prove a fairer and more efficient method of allocating scarce medical resources.

These problems were illustrated in Furman v. Georgia, 408 U.S. 238 (1972), in which the majority's attack on the discretionary power of juries in capital punishment cases was based both on the perception of the intolerable discrimination on the one hand, and the notion that the almost random manner in which the death sentence was being imposed constituted cruel and unusual punishment on the other. A judge may be a better decision maker than a para-jury concerning whether to treat a terminally ill incompetent patient, because the elements of process in a judicial proceeding—for example, representation of the patient, required articulation of the reasons for the decision, and the opportunity to appeal— are superior to those in a para-jury proceeding. Nevertheless, it may be that when treatment is advocated, judges will always require it, and this method might have to be abandoned for another, if society determines that the financial expenditures for these patients cannot be justified. The point is that decisions must be made, and each method of making a “tragic choice” will necessarily involve major problems which will bring societal values into conflict. Recognizing this, our task is to develop that method of conflict resolution which reaches fair and just decisions as often as possible without destroying important societal values. See G. Calabresi & P. Bobbitt, Tragic Choices (1978). See also Havighurst, Blumstein, & Bovbjerg, Strategies in Undewriting the Costs of Catastrophic Disease, 40 L. & Contemp. Prob., Autumn 1976, at 122, 178-95, in which the authors suggest ways in which structuring financing mechanisms for catastrophic diseases may aid in private decision making. See also, on the issue of public policy and decision making for the catastrophically ill, J. Katz & A. Capron, Catastrophic Diseases: Who Decides What? (1975); Annas, Allocation of Artificial Hearts in the Year 2002: Minerva v. National Health Agency, 3 Am. J. L. & Med. 59 (1977)Google Scholar.