The case of Mr. Stevens.

• Author: Cranford, Ronald E.
• Position: Persistent vegetative state - Symposium: Current Controversies in the Right to Live, the Right to Die

If I were requested to testify at trial as a "bioethical expert" my services would generally be contingent on two conditions. First, under ideal circumstances, I would prefer to be retained by the trial court judge him or herself and not by the individual parties. Thus, I would hope to act as an impartial, disinterested expert whose role would be nonadversarial. Such an expert would not represent the views of individual parties but would act more as a true "friend of the court."

Second, I would testify not as a bioethical expert (which I am not) but as a clinical ethicist or a bedside etics consultant. These two types of experts should be carefully distinguished. Some professionals have great expertise in the theories and principles of bioethics--Robert Veatch, Richard McCormick, and Joseph Fletcher. Other professionals have more expertise and experience in the practical side of bioethics--Fred Abrams, Stuart Youngner, and myself. Some individuals, such as Joh Fletcher, have extensive knowledge and experience in both spheres. I do not mean to say that clinical ethicists lack knowledge of the theoretical side of bioethics nor that experts in theory are not aware of the practical aspects. But some of us are more qualified on the more pragmatic issues, while others are more skilled in theory.

As an expert then in clinical ethics rather than in theoretical ethics, my comments and guiding principles follow that are relevant to this case from an ethical perspective.

Accurate Facts

In any bioethical dilemma, it is important to get the fact straight. (1) Wrong facts, or a misunderstanding of the facts, will invariably lead to bad decisions.

To say that Mr. Stevens will live "indefinitely" is simply not true. A completely healthy, normally mentating forty-nine year old person will not live indefinitely. Patients in a persistent vegetative state, even if otherwise completely "healthy" (except for their noncognitive condition), will usually live about five to ten years, although some may live longer. Even with maximal treatment, the life expectancy of Mr. Stevens would be considerably decreased from a normal life expectancy. A normal life expectancy for a forty-nine year old in good health, both physical and mentally, would be into the late seventies or early eighties. In that context the life expectancy for Mr. Stevens will be considerably shortened. It is more likely than not that Mr. Stevens will not be alive in ten years and much more likely than not that will not be alive in twenty years.

Another important fact to get straight is that Mr. Stevens will not die of starvation if artificial nutrition and hydration are stopped. The American Academy of Neurology, in its amicus curiae brief to the U.S. Supreme Court in Cruzan, (2) stated unequivocally: "Nancy Cruzan . . . will not starve to death. Due to the nature of the PVS condition, she will not experience pain or suffer in any way, nor will she manifest significant physical indications of the dying process." (3) Mr. Stevens will die of acute dehydration, which would occur usually within one to two weeks, although it could take as little as three days or as long as thirty days. Starvation, on the other hand, usually takes six to ten weeks. (4)

Another important issue is whether the patient is truly in a persistent vegetative state (PVS) without signs of awareness or the capacity to experience pain or suffering. With respect to the issue of whether PVS patients experience suffering after treatment is stopped, the Council on Scientific Affairs and the Council on Ethical and Judicial Affairs of the American Medical Association concluded:

The most obvious contradiction to this projection [that PVS patients will suffer] is that, by definition, in PVS both the peron's capacity to perceive a wide range of stimuli and the neocortical or higher brain functions that are needed to generate a self-perceived affective response to any such stimuli are destroyed. Pain cannot be experienced by brains that no longer retain the neural apparatus for suffering. (5)

In case of prolonged existence in this condition, it is not uncommon, in fact it is usually the norm, for some nursing staff and some family members (as in this case) to believe that the patient does show signs of consciousness and to be greatly concerned that the patient may experience thirst and hunger during the dying process of withdrawing artificial nutrition and hydration. Health care professionals should make every effort, both as physicians dealing with individual patients and through organized medicine, to dispel these myths.

If neurological experts presented conflicting testimony as to the actual clinical condition of the patient, I would urge the trial court judge to seek independent, disinterested neurological experts--retained by the court and not the opposing parties--to examine the patient and render their medical opinions.

I would further encourage the trial court judge to go to the bedside of the patient to see for him or herself the actual clinical condition. If there was serious disagreement among the neurological experts as to the actual medical condition, this would give the disagreeing parties the opportunity to show the judge their observations at the bedside.

In the case of Nancy Jobes (6) in New Jersey, for example, two national experts in neurology, Drs. Fred Plum and David Levy, testified that Mrs. Jobes was in a persistent vegetative state, shile two other nationally distinguished neurologists said she was not. (7) After listening to the testimony of these neurologists and visiting the bedside of Mrs. Jobes, Judge Stein reached this conclusion:

It must be noted that all of the witnesses who claim to have elicited command responses from Ms. Jobes, certain nursing home staff members as well as Dr. Ropper and Dr. Victor--believe that it is a violation of professional ethics and personal morality to withhold or withdraw tube feeding of nutrition and hydration from any patient, whatever that patient's state of health and regardless of that patient's previously expressed wishes.

I find that all of the movements of Nancy Ellen Jobes described by the various witnesses are startle responses and reflex reactions to external stimuli....

These witnesses who stated that Ms. Jobes was able to respond to requests or commands were not giving false testimony under oath. Their sincere opposition to the withholding of nutrition from any patient...has caused them to see signs of intelligence where no such intelligence exists. (8)

Some raise legitimate concerns about why judges should not visit the bedside. Some fear that judges will no longer be acting in their judicial role, but pretending to be medical experts. Or they may be unduly influenced by the emotional nature of seeing the patient. But the weakness in this argument is that judges do act as medical experts in one sense because, in the final analysis, they do have to weigh the conflicting medical evidence and make a decision as to the credibility and expertise of the experts. So whether they do this in the courtroom or at the bedside, the judges do have to assume some role in unraveling the conflicting testimony of medical experts.

Two Fundamental Ethical Principles:

Patient Autonomy and Patient Well-Being (Best Interests)

The Hastings Center Guidelines identify four central ethical values in termination of treatment decisions. (9) Coming from "the moral traditions of medicine and nursing and from the ethical, religious, and legal traditions of our society," these primary values are patient well-being, patient autonomy, integrity of health care professionals, and justice or equity. (10)

All of these values play an...