Voluntarily Stopping Eating and Drinking as a Viable End-of-Life Option in Ohio

AuthorSara Valentine
Position2019 Graduate of Capital University Law School; 2014 Graduate of The Ohio State University
Pages139-178
VOLUNTARILY STOPPING EATING AND DRINKING AS A
VIABLE END-OF-LIFE OPTION IN OHIO
SARA VALENTINE*
I. INTRODUCTION
The option of voluntarily stopping eating and drinking (VSED) is a
necessary and welcome end-of-life option. VSED refers to a conscious
and deliberate decision, by a capacitated patient suffering from advanced
illness or a debilitating medical condition, to intentionally refrain from
receiving food or fluids by mouth.
1
Although no state, including Ohio,
has determined whether VSED is legal or illegal, the necessity of such care
is obvious when balancing the option between a long, painful death and an
autonomous, shorter way to end the suffering. VSED is a relatively
common option, especially when consulting with palliative care physicians
and nurses who have seen the benefits of using VSED, as opposed to
prolonging the life of someone who is in agony.
2
Although most physicians and caregivers overwhelmingly support
VSED as an end-of-life option,
3
the legal field, historically and currently,
provides no roadmap for physicians or palliative caregivers, which leaves
these professionals to make subjective decisions and policies on a case-by-
Copyright © 2019, Sara Valentine.
* 2019 Graduate of Capital University Law School; 2014 Graduate of The Ohio State
University. I want to thank Thaddeus Mason Pope, Director of the Health Law Institute and
Professor of Law at Mitchell Hamline School of Law, for introducing me to this significant
issue. I would also like to thank Professor James R. Beattie, Jr. for his unwavering support
and legal insight throughout the process of writing this Comment. Lastly, I would like to
thank my mother, Cindy Valentine, for instilling in me a passion for the medical field and
my best friend, Co urtney Short, whose untimely death exposed me to the lack of end-of-life
options in Ohio.
1
Thaddeus Mason Pope & Amanda West, Legal Briefing: Voluntarily Stopping Eating
and Drinking, 25 THE J. OF CLINICAL ETHICS 68, 68 (Spring 2014); see also Thaddeus
Mason Pope & Lindsey E. Anderson, Voluntarily Stopping Eating and Drinking: A Legal
Treatment Option at the End of Life, 17 WIDENER L. REV. 363, 38687 (2011) (VSED is
distinct from two similar mechanisms: (1) VSED applies only to patients who choose to
stop eating and drinking orally. It does not apply to patients who are unable to take nutrition
or hydration by mouth. (2) VSED applies to pati ents who deliberately choose to refuse food
or fluid in order to hasten death. VSED does not apply to patients who are unable to eat or
drink due to a condition that interferes with their appetite or swallowing.).
2
Paula Span, The VSED Exit: A Way to Speed Up Dying, Without Asking Permission,
THE NEW YORK TIMES (Oct. 21, 2016), https://www.nytimes.com/2016/10/25/health/volunt
arily-stopping-eating-drinking.html [https://perma.cc/HE4M-AD8Q].
3
Id.
818 CAPITAL UNIVERSITY LAW REVIEW [47:817
case basis. Consequently, this lack of legal guidance has led to numerous
lawsuits on both sides of the VSED debate:
4
whether the physicians and
caregivers subjected the patient to undue pain and suffering by continuing
to provide nutrition and hydration for an extended period of time; or if the
physicians and caregivers failed to provide the adequate amount of
nutrition and hydration to the patient so that the patient died sooner than
they should have.
In this article, I will be reviewing the following: the historical,
common law right to refuse medical treatment; the advances that the law
and medicine have made to ensure the right to refuse medical treatment is
protected; the striking difference between the option of VSED versus
Medical Aid in Dying (MAID”); and the proposal to help physicians and
palliative caregivers navigate the fine line of recognizing VSED as a viable
end-of-life option.
II. THE HISTORICAL, COMMON LAW RIGHT TO REFUSE MEDICAL
TREATMENT VERSUS A RIGHT TO DIE
A. Battery, Informed Consent, and Ohios Recognition of Letting You
Die
The cause of action for battery developed out of a basic judicial
regard for the principle of individual autonomy, reflecting the belief that
the individual has the right to be free from non-consensual interference
with his or her person.’”
5
In a legal sense, forcing treatment on an unwilling patient is no
different than physically attacking that person.
6
Any method of harmful,
offensive touching without permission constitutes an assault.
7
In Ohio, the
common law definitions of battery and assault fall under one statute, R.C.
§ 2903.13.
8
Under this statute, no person shall knowingly or recklessly
cause, or attempt to cause, physical harm to another.
9
Violating the statute
can constitute a criminal offense and can also be the basis of a civil
4
See Section IV, Part II.
5
Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery, 10 J.L. &
HEALTH 287, 289 (1995-1996) (citing JAY KATZ, THE SILENT WORLD OF DOCTOR AND
PATIENT 4884 (1984)).
6
See Ohio Rev. Code Ann. § 290 3.13 (West 2013) (The Ohio Revised Code makes no
distinction between forcing treatment on an unwilling individual and a physical attack.
Both acts constitute an assault as defined under the Ohio Revised Code.).
7
Id.
8
Id.
9
Id.
2019] VOLUNTARILY STOPPING EATING AND DRINKING 819
lawsuit.
10
Moreover, the person inflicting the assault must have knowingly
or recklessly caused physical harm to another without their consent.
11
Thus, forcing medical treatment on a patient who has declined such
treatment would be a cause of action for assault against the medical
provider in Ohio.
12
The historical right to refuse medical treatment in the United States is
often traced back to two judicial opinions: Union Pacific Railway Co. v.
Botsford
13
and Schloendorff v. Society of New York Hospital.
14
In
Botsford, Ms. Botsford sued Union Pacific Railroad Company for a
concussion, which resulted from the alleged negligence of the railroad.
15
To determine if Ms. Botsford did suffer from a concussion, Union Pacific
Railway Company requested a surgical examination of her injuries.
16
The
Court denied Union Pacific Railway Companys request, stating that: [n]o
right is held more sacred, or is more carefully guarded by the common law,
than the right of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law.
17
In the 1914 Schloendorff decision, Justice Cardozo penned the classic
statement of a physicians duty to retrieve the patients consent: Every
human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation
without his patients consent commits an assault, for which he is liable in
damages.
18
In the years after Schloendorff, courts refined the right for a patient to
refuse medical treatment, holding that the right to refuse medical treatment
is a corollary to the doctrine of informed consent.
19
Most notably, the
Court in the 1990 decision of Cruzan v. Director, Missouri Dept. of
Health, found[t]he logical corollary of the doctrine of informed consent
10
Id.
11
Id.
12
Id.
13
Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891).
14
Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).
15
Union, 141 U.S. at 250.
16
Id.
17
Id. at 251.
18
Schloendorff, 105 N.E. at 93 (the Court went on to say, [t]his is true except in cases
of emergency, where the patient is unconscious and where it is necessary to operate before
consent can be obtained.However, this statement fails to distinguish informed consent
from implied consent. In most circumstances, where a patient voluntarily seeks treatment,
the patient will be found to have implied their consent to the treatment.).
19
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 270 (1990).

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