Life and Death in Washington State After Cruzan v. Director, Missouri Department of Health

Publication year1992



Life and Death In Washington State After Cruzan v. Director, Missouri Department of Health

Nancy Watkins Anderson(fn*)

I. Introduction

There she met sleep, the brother of death(fn1)

Picture a young woman sitting cross-legged in her apartment discussing with her roommate the somber topics of life and death on a rainy day over a cup of coffee. During that "somewhat serious conversation,"(fn2) the woman states that if she were sick or injured, "she would not want to continue her life unless she could live 'halfway normally.' "(fn3) Next, picture that young woman lying face down in a ditch after being violently thrown from her car in an accident, without detectable respiratory or cardiac function. Finally, picture that woman seven years later lying in a hospital bed. She is in a persistent vegetative state,(fn4) with no hope of returning to cognitive life. Nevertheless, her body could conceivably survive for another thirty years. Should a court give effect to that woman's somewhat serious statement? Should a court allow her family to withhold all artificial nutrition and hydration, thereby letting her die naturally in the culmination of a process that began seven years previously on the night that her car crashed?

This thumbnail sketch is in fact the real-life scenario that confronted a young woman, Nancy Beth Cruzan, her family, and the courts. In her case, the Missouri Supreme Court answered the above questions: no. Subsequently, in a decision that may have raised more questions than it answered, the United States Supreme Court begrudgingly admitted that the Constitution would grant a constitutionally protected liberty interest to refuse lifesaving nutrition and hydration.(fn5) Nevertheless, the Court affirmed the Missouri Supreme Court's decision and delegated the task of crafting appropriate procedures for safeguarding an incompetent's liberty interest to the "laboratory of the States."(fn6) In Missouri, the procedure for safeguarding Nancy Cruzan's liberty interest required that evidence of her intent about treatment withdrawal must be proved by clear and convincing evidence.(fn7) Because that standard was not met in her case, the Supreme Court agreed that Missouri could refuse to allow removal of the artificial hydration and nutrition equipment.

Thus, in Cruzan, the United States Supreme Court allowed individual states to establish their own procedures for protecting patients' liberty interests in so-called right-to-die cases.(fn8) Although the Court upheld Missouri's highly restrictive procedure, the Court did not advocate that as the only possible procedure.(fn9) As a result, each of the fifty states, including Washington, is free to follow its own course within the confines of Cruzan.

Washington's most recent statement of right-to-die law is in the 1992 statutory revisions to the Natural Death Act,(fn10) passed by the legislature in response to a statewide referendum proposing numerous changes to the Act.(fn11) Although the revisions clarify Washington's policy on using artificial nutrition and hydration for people in a persistent vegetative state, the Act only applies to people who have executed a written directive, or living will, indicating their preferred course of medical treatment. Thus, the Act does not directly apply to people like Nancy Cruzan who have not executed a living will.

Washington's most recent common law statement of right-to-die law is the case of In re Grant.(fn12) The Grant decision allowed a guardian or family, in conjunction with the patient's physicians, to act as a surrogate decisionmaker,(fn13) exercising the rights of an incompetent patient who is in a persistent vegetative state. These rights included the right to removal of artificial nutrition and hydration.(fn14) The Grant court later amended its decision,(fn15) however, casting doubt on whether Washington law still allows the withdrawal of artificial nutrition and hydration. In addition, this modified procedure for withdrawing life-sustaining treatment conflicts with the Washington Informed Consent Law,(fn16) making it uncertain which controls. As a result, Washington law needs clarification.

The legislature should amend Washington law to allow the removal of life-support measures, including artificial nutrition and hydration, from an incompetent patient in a persistent vegetative state. Rather than following the ambiguous Informed Consent Law, the legislature should adopt the procedure outlined in the first, unmodified Grant decision. That procedure allows decisions about withholding artificial nutrition and hydration to be made by a surrogate decisionmaker, either the patient's family or guardian. Treatment can be withdrawn only if the patient has no reasonable possibility of return to cognitive and sapient life, and the surrogate has determined that the patient, if competent, would choose to refuse treatment. Alternatively, if that intent cannot be determined, treatment can be withheld if it would be in the patient's best interests.(fn17) Unlike the Washington Informed Consent Law, the original Grant procedure provides safeguards against possible abuses, yet allows a patient's family to make these private life and death decisions without interference by the courts.

In Part II, this Comment examines the Cruzan decision by the United States Supreme Court, including the facts of the case, holding of the court, aftermath of the decision, and long-term effects of the case. Part II also includes an extensive analysis and critique of Cruzan. Part III examines the status of Washington law both before and after Cruzan, including the Colyer, Hamlin, and Grant cases, which have resulted in confusion over the legal status of withholding artificial nutrition and hydration from incompetent patients in Washington. In Part IV, this Comment compares Cruzan to the Washington cases, analyzing the two major impacts of Cruzan and pointing out why Washington state needs to clarify its law in light of Cruzan. Finally, this Comment proposes that Washington adopt the original Grant procedure. Under that procedure, a family or guardian may decide, based on the patient's medical prognosis and the patient's intent or best interests, that artificial life support, including artificial nutrition and hydration, should be withdrawn and the patient permitted a natural death.

II. The Status of Federal Law: Cruzan v. Director, Missouri Department of Health

A. Facts of the Case

On Tuesday, January 11, 1983, at approximately 12:50 a.m., Nancy Beth Cruzan was driving her 1963 Rambler Classic Sedan east on Elm Road in Jasper County, Missouri, on her way home from work at a Carthage cheese plant. It was a clear, cool, dry January night.(fn18) For unknown reasons, Nancy lost control of her Rambler. The car ran off the north side of the road, hit a mailbox and some small trees, swerved back across the road to the south side, ran through a fence, overturned several times, and came to rest upside down in a ditch some 210 feet from the mailbox.(fn19) During the collision, Nancy was thrown about thirty-five feet from her car and landed face down in the ditch. At 12:54 a.m., the Missouri Highway Patrol dispatched Trooper Dale Penn to the scene. He arrived at 1:00 a.m. and found Nancy without detectable respiratory or cardiac function. "She had apparently expired."(fn20) Paramedics Robert Williams and Rick Maynard arrived at 1:09 a.m., diagnosed Nancy as code blue, and immediately began cardiopulmonary resuscitation at 1:11 a.m. Although cardiac function and spontaneous respiration recommenced by 1:12 a.m., Nancy had suffered significant anoxia, or deprivation of oxygen, for a minimum of twelve to fourteen minutes.(fn21)

Nancy was transported to Freeman Hospital where she was diagnosed with a laceration to the liver and a probable cerebral contusion compounded by the significant anoxia, with the prognosis hinging on the unknown duration of her oxygen deprivation.(fn22) Nancy remained in a coma(fn23) for three weeks and then progressed to an unconscious state.(fn24) To assist recovery and ease feeding, a gastrostomy feeding tube was surgically implanted in Nancy's stomach on February 5, 1983, with her then-husband's consent.(fn25) Over time, however, efforts to rehabilitate Nancy proved to no avail. After her family attempted home care at her grandmother's house and at a nursing home following a bout with 107 degree fever, Nancy was eventually placed in Mount Vernon State Hospital.(fn26) She remained unconscious, with muscular atrophy and contracture of her four extremities, causing her fingernails to cut into her wrists. Her condition was described as follows:(1) [H]er respiration and circulation are not artificially maintained and are within the normal limits of a thirty-year-old female; (2) she is "oblivious to her environment except for reflexive responses to sound and perhaps painful stimuli"; (3) she suffered anoxia of the brain resulting in severe brain damage. "A recent CAT [sic] scan of her head reveals abnormalities suggesting severe irreversible upper hemisphere brain damage with massive enlargement of ventricles filling with cerebrospinal fluid because the brain is degenerating." The degeneration is called "cerebral cortical atrophy, which is progressive from her initial condition reflected on...

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