Admissibility and weighing evidence of intent in right to die cases.

• Author: Gorby, John D.

This article is about evidence that a court may receive and consider in right to die cases. More specifically, it is about the admissibility of facts offered to prove other facts that the law makes of ultimate importance in determining whether life prolonging medical procedures, treatment, nutrition, or hydration are to be withheld or withdrawn.(1) It is also about the problem of making judgments about the probative importance of this evidence.

This article is not about what the law ought to be. It takes no position in the great legal and constitutional debate(2) about right to die issues, about living wills, substituted judgment, or refusal or withdrawal of nutrition or hydration.(3)

On the other hand, in making judgments about the admissibility of evidence, it is first necessary to determine exactly what facts the substantive law makes of ultimate importance. Thus, the article begins with a discussion about the factual circumstances under which substantive law permits the discontinuance of medical procedures. The concerns of this article, then, are: (1) what those factual circumstances are, (2) what party has the burden of proving the existence of those circumstances, (3) what evidence the court may receive to determine if those circumstances exist in the specific case before it, and (4) what degree of probative value the court may reasonably assign to the evidence. Regarding the third concern, the idea of relevancy and certain exclusionary rules, such as hearsay and the opinion rule, will be discussed.

Analyzing Evidence Problems

Identifying the Ultimate Facts Upon Which the Court's Judgment Will Be Determined

It is impossible to make sound judgments about the admissibility of evidence (i.e., whether the court may receive and consider certain information in reaching its verdict) without first deciding what facts are of consequence to the determination of the case. These facts, called "determinative facts" here, are determined by the substantive law applicable to each case. To illustrate: if under the substantive right to die law the intention of a patient in a vegetative state about the withholding of medical treatment is determinative of the outcome, the court may receive evidence of the patient's thoughts about surviving in such a state. This evidence may help the court decide the patient's intent concerning the discontinuance of medical procedures. On the other hand, if the "meaningfulness" of the patient's life in an objective sense is determinative, the patient's comments and thoughts about living on a respirator in a vegetative state may be of no importance or relevance to the court in making its judgment.(4) In other words, the beginning point in the analysis of any problem about the admissibility of evidence is the substantive law.

This important principle is expressed in the definition of relevance in the Federal Rules of Evidence.(5) Rule 401 provides: "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."(6)

What facts does the substantive law in right to die cases make "of consequence to the determination of the action"? Expressed differently, about what facts does the substantive law require the court to be persuaded before making its judgment? Unfortunately, in spite of the considerable attention given to right to die matters, the substantive law is not very clear. The cases suggest considerable confusion about what the ultimate factual issues are in right to die litigation.(7) Most courts suggest that the crucial factual question is the intention of the patient.(8) Other courts, though, have suggested that, in the absence of a clear expression of intent about discontinuance of medical procedures, "the best interests of the patient" are the determinative factor.(9) More specifically the issue has been whether "the net burdens of the patient's life with the treatment . . . outweigh the benefits that the patient derives from life."(10) In the Quinlan case, the court suggested that the life support system could be discontinued if there were no reasonable possibility of the patient's emerging from the comatose condition to a cognitive, sapient state.(11) In another New Jersey case, the court stated that the patient's feeding system may be removed if the patient is in a persistent vegetative state and has no possibility of returning to the cognitive, sapient state.(12) If the substantive law focuses on facts other than intent, the evidence relevant to those facts will naturally be very different.

Let us assume that the substantive law on right to die matters makes intent the dispositive issue. If the patient is competent, the patient, of course, is capable of appraising the circumstances and either acting upon or expressing his intent about the utilization of life prolonging medical treatment under the circumstances, and the court need not fret about the matter. On the other hand, if the patient is comatose, the substantive issue about intent becomes much more complicated. Questions arise: the patient's intention at what point in time? At the time of expressing the intent? At the time of becoming comatose or incompetent? At the time of the contemplated withholding of medical procedures?

A study of right to die legislation and the cases reveals uncertainty here. For example:

(1) Intention at the time of executing a living will. The Illinois Living Will Act(13) appears to treat the declaration of intention about discontinuing medical procedures as set forth in the living will to be dispositive unless formally revoked pursuant to the statute's revocation provision. This suggests that the important point in time is the time of executing the living will. On the other hand, as pointed out in note 22, infra, courts in typical property disposing will cases often engage in a legal fiction to permit the inference that the intention expressed in the will is also the deceased's intention at death.

(2) "Firm commitment" while competent. In In re Matter of Westchester County Med. Ctr. ex rel. O'Connor(14) the issue was whether "the patient had made a firm and settled commitment, while competent, to decline this type of medical assistance under circumstances such as these."(15) The emphasis here is on the time of "commitment, while competent," not on intention at the time of contemplated discontinuance of medical procedures.(16)

(3) Intention at the time of the contemplated discontinuance of medical procedures. In In re Conroy, the court was concerned with intentions at the time of the contemplated discontinuance of medical procedures: "[W]hat would [the patient] have done if able to choose for himself?"(17) In Cruzan v. Harmon,(18) the court said that the dispositive question was whether the patient would want to continue living, even though her present condition is hopeless. In Gray v. Romeo,(19) the court suggested that the issue was whether the patient, "if competent, would exercise her right to refuse the life-sustaining medical treatment."(20)

This is not an insignificant problem for trial lawyers. Perhaps a brief comparison of a living will situation with a typical property disposing will case will help illustrate the problem. If, for example, right to die cases involving living wills are like property disposing cases involving typical wills in probate court, the factual question for the court to resolve would be: What intent did the patient express in his "last living will"? This question would be resolved by studying the document itself. No evidence would be received by the court, except that relating to the document and the mental state of the testator at the time of making the will. The question would not be: What was the patient's intent at the time of becoming comatose or what is his intent now at the moment that discontinuance of medical procedures is contemplated?(21) Thus, any evidence which may suggest that the patient may have changed his mind after executing the living will would be irrelevant and not admissible.(22)

On the other hand, if a living will in a right to die case is unlike a will in a typical property disposing probate case after death, it is because the living will is a very different type of document with little or none of a typical will's legal characteristics and significance. The living will, then, would have to be regarded only as important evidence of the patient's intent.(23) It would thus follow that the court should receive as relevant any evidence that the patient may have changed his mind or that the patient has a contrary intent.(24) Hopefully this comparison between living wills and typical wills illustrates the main point here: the admissibility of evidence of the patient's intent turns primarily upon the substantive law about living wills in right to die cases, not upon rules of evidence.

To summarize, the admissibility of evidence depends primarily on the facts that the substantive law on right to die makes "of consequence to the determination of the action," to use the exact language of Federal Rule of Evidence 401. If the patient's intent is not a determinative fact under the substantive law of the court, evidence of that intent in whatever form (i.e., in the form of a living will or otherwise) would not be admissible. If the substantive law on the right to die determines intent at the time of executing the living will, evidence about intent at later times would be irrelevant and inadmissible. On the other hand, if the important time of intent is the time of contemplated withdrawal of medical treatment, the court must treat legal instruments such as living wills as evidence suggesting intent at the time of making the will. From that point, the court must infer that the patient's intent has remained unchanged until the time of contemplated withdrawal of life prolonging medical procedures...