Death, ethics, and the state.

• Author: Kalt, Brian C.

[T]his case presents novel issues of fundamental importance that should not be resolved by mechanical reliance on legal doctrine.

--Superintendent v. Saikewicz(1)

The state has an interest in "maintaining the ethical integrity of the medical profession."(2) The U.S. Supreme Court recognized this proposition in its recent landmark "assisted suicide" decision, Washington v. Glucksberg.(3) Unfortunately, the Court did so in a way that could undermine the ethical integrity of the medical profession in this country, in cases ranging from the right to refuse treatment to assisted suicide, abortion, and the death penalty.

As discussed in this Article, the interest in the ethical integrity of the medical profession (EIMP for short) has been widely recognized by courts. These courts typically have done so in difficult cases at the margins of medical practice, where the powerful themes of death, ethics, and the powers of the state intersect. EIMP is a reasonable goal, and most citizens would probably agree that there is a state interest in ensuring that doctors maintain high standards of ethical conduct. Stated in that form (as what I will call the Societal Goal), EIMP is vitally important, and this Article discusses ways in which our courts and society at large can take steps to ensure it. But is this what the courts mean by EIMP? And how are states and courts supposed to maintain EIMP? Surprisingly, there are no clear answers to these questions; none of the dozens of jurisdictions that have asserted a state interest in EIMP have ever really explained what EIMP means or what would protect it.

What makes this ironic is that, as a result, EIMP--in the sense defined in the last paragraph--has not been maintained but rather has been threatened by these court decisions, regardless of their outcome. Instead of explaining what EIMP means, courts simply have cited earlier cases asserting a state interest in EIMP. The cited cases themselves do the same thing. The trail ultimately leads back to the landmark right-to-die case of Superintendent of Belchertown State School v. Saikewicz. However, the court in that case (whose self-conscious judicial activism was quoted above) simply made EIMP up out of whole cloth.

And so it goes. Judges make things up and their successors cite them blindly, even in cases involving the most serious matters of life and death. With EIMP, this combination of improvisation and mimicry has the effect of twisting courts' words until they achieve the opposite of what they say. The result--degrading doctors' standards of ethical conduct--is very dangerous indeed. This Article is an attempt to shine a light on this line of case law, and to suggest new and more effective ways to ensure that we as a society maintain high standards of medical ethics.

1. INTRODUCTION

   The story of EIMP begins in 1977 with Superintendent v. Saikewicz,(4) the Massachusetts `right to refuse treatment' case that introduced EIMP as part of a state-interest calculus. Despite the Massachusetts Supreme Judicial Court's warning, quoted above, against "mechanical reliance on legal doctrine," many courts facing treatment-refusal and other life-and-death issues have blindly adopted the Saikewicz state-interest formula, including EIMP. Eventually, EIMP's path led to the Supreme Court in Glucksberg.

   This Article has three themes. I first examine the origins, application, and consequences of the EIMP standard. Ironically, I contend, the articulation of a state interest in maintaining the "ethical integrity of the medical profession" has served to undermine the medical profession's ethical integrity.(5)

   The second theme of this Article, subtler but just as important, is the tendency of courts to `mechanically rely on legal doctrine' rather than carefully scrutinize sources and their applicability.(6) As this Article traces the spread of EIMP into other jurisdictions as well as into other areas of law, the background of the analysis reveals how a single act of judicial activism (or judicial creativity, depending on one's point of view) can mushroom, distorting (or informing) an entire area of case law for decades.

   The third theme, also subtle but significant, concerns courts' use of multi-factor balancing tests. When a factor like EIMP is part of a balancing test that includes weighty interests such as privacy and life, EIMP can easily get lost in the shuffle. Also, factors placed on the losing side of the balance are often ignored in making policy determinations when courts conceptualize justice as "scales." A better solution, I argue, is to attempt to maximize the sum of all relevant interests, what we might call "Justice as Optimizer."

   Part II is a brief prologue, examining the Saikewicz case at its origins--the probate court--and highlighting the ironically questionable ethics of the doctors, lawyers, and judge in the case. This examination provides the background for Part III, where I take a detailed look at the murky origins of the ethical integrity standard in the Massachusetts Supreme Judicial Court's Saikewicz decision. In Part IV, I chronicle EIMP's application in dozens of death cases(7) in the two decades since Saikewicz. In Part V, I examine the use of the standard and its analogues in the areas of abortion, assisted suicide, and the death penalty. Part VI is devoted to analyzing the Supreme Court's decision in Glucksberg, in the context of the rest of this Article. In Part VII, I conclude with some proposed solutions to the outlined problems with EIMP and the judicial decision-making process. I will argue that EIMP should embody what I call the "Societal Goal," meaning it is important that we, as a society, guarantee that our doctors maintain high standards of ethical conduct, in part by ensuring broader societal input into defining what "ethical conduct" entails.

2. SAIKEWICZ IN THE PROBATE COURT--ETHICAL INTEGRITY PROLOGUE

   On April 19, 1976, Joseph Saikewicz was diagnosed with acute myeloblastic monocytic leukemia.(8) Saikewicz's prognosis was for a relatively painless death, in a few months at the most. An alternative was for Saikewicz to undergo difficult and uncomfortable treatments of chemotherapy, which had a 30 to 50 percent chance of success (probably closer to the lower bound, given Saikewicz's age of sixty-seven). "Success" meant remission, which could last two to thirteen months, after which Saikewicz's leukemia would likely return. However, as the probate judge in Saikewicz's case found, the majority of people in Saikewicz's situation would have elected to receive chemotherapy. Nonetheless, on the urging of medical experts and Saikewicz's guardian ad litem, the probate court ordered that no treatment be administered to Saikewicz for his leukemia.

   It was left to a probate judge to make this treatment determination because Saikewicz had an I.Q. of 10. He was unable to communicate, and he most likely did not understand his condition well enough to give anything resembling informed consent.

   1. Why Mr. Saikewicz's Life Was Not Prolonged

      The decision apparently turned on Mr. Saikewicz's mental deficiency. Two excerpts from the probate court transcript show that the decision was a close one:

      THE COURT: .... I feel that if I had a serious disease and with treatment I could live another five or eight years or ten years, whatever, I'd rather take the treatment than just take the chance of dying tomorrow or next week. MR. MELNICK [the guardian ad litem]: Let me say this, that that was my opinion, but ... I was informed that the toxic effects from the treatment would be so great and with his inability to understand the pain, the chances of success are small to begin with, and he'd die comfortably if he didn't have any treatment. Your judgment is yours and mine is mine, but the toxic effects of the drugs would be very great in my mind. That is how I made my judgment, but I agree that a person that could make an informed consent would consent to it.(9) Regardless of the fact that "a person that could make an informed consent would consent to it," the fact that chemotherapy would be painful and confusing to Mr. Saikewicz convinced the guardian ad litem that it was better to let him die painlessly.

      The judge was not so sure:

      THE COURT: That is the choice I have to make. DR. DAVIS: That is it. I don't know. I don't have that deep knowledge. THE COURT: I am inclined to give treatment. DR. JONES: One thing that concerns me is the question about his ability to cooperate. I think it's been made clear that he doesn't have the capability to understand the treatment and he may or may not be cooperative, therefore greatly complicating the treatment process.... THE COURT: Dr. Davis, do you agree? DR. DAVIS: I think it's going to be virtually impossible to carry out the treatment in the proper way without having problems. You have to see him. When you approach him in the hospital, he flails at you and there is no way of communicating with him and he is quite strong; so he will have to be restrained and that increases the chances of pneumonia, to restrain him if he can't be up and around. .... THE COURT: Maybe I should change my judgment.(10) The judge did change his judgment, and agreed to let the doctors withhold treatment from Mr. Saikewicz:

      THE COURT: Do I have to form a written judgment? MR. ROGERS: Yes, I will draft it. THE COURT: After a full hearing with medical specialists and doctors being present and their testimony being taken, the Court determines and adjudges that chemotherapy treatment should not be given at this time.(11) The court's findings, apparently written by Mr. Rogers, the staff attorney at the hospital, are worth quoting here at length:

      ....

      2. That said JOSEPH SAIKEWICZ is 67 years of age and is currently suffering from acute myeloblastic monocetic [sic] leukemia.

      3. That the only available medical treatment therefor is the administration of various drugs, known as "chemotherapy".

      4. That said JOSEPH...