DEATH AND DYING

DEATH AND DYING

Death is the end of life. Dying is the process of approaching death, including the choices and
actions involved in that process.

Death has always been a central concern of
the law. The many legal issues related to death
include laws that determine whether a death has
actually occurred, as well as when and how it
occurred, and whether or not another individual
will be charged for having caused it.With the
development of increasingly complex and powerful
medical procedures and devices in the
middle and late twentieth century, the U.S. legal
system has had to establish rules and standards
for the removal of life-sustaining medical care.
This would include, for example, withdrawing
an artificial respirator or a feeding tube from a
comatose person, or withholding chemotherapy
from a terminally ill cancer patient. Such laws
and judicial decisions involve the right of individuals
to refuse medical treatment—sometimes
called the right to die—as well as the
boundaries of that right, particularly in regard
to the state’s interest in protecting life and the
medical profession’s right to protect its standards.
The issues involved in death and dying
have often pitted PATIENTS’ RIGHTS groups
against physicians’ professional organizations as
each vies for control over the decision of how
and when people die.

Defining Death in the Law
The law recognizes different forms of death,
not all of them meaning the end of physical life.
The term civil death is used in some states to
describe the circumstance of an individual who has been convicted of a serious crime or sentenced to life imprisonment. Such an individual
forfeits his or her CIVIL RIGHTS, including the
ability to marry, the capacity to own property,
and the right to contract. Legal death is a presumption
by law that a person has died. It arises
following a prolonged absence, generally for a
prescribed number of years, during which no
one has seen or heard from the person and there
is no known reason for the person’s disappearance
that would be incompatible with a finding
that the individual is dead (e.g., the individual
had not planned to move to another place). Natural
death is death by action of natural causes
without the aid or inducement of any intervening
instrumentality. Violent death is death
caused or accelerated by the application of
extreme or excessive force. Brain death, a medical
term first used in the late 1960s, is the cessation
of all functions of the whole brain.
Wrongful death is the end of life through a willful
or negligent act.

In the eyes of the law, death is not a continuing
event but something that takes place at a
precise moment in time. The courts will not
wield authority concerning a death. The determination
of whether an individual has died, and
the way in which this is proved by the person’s
vital signs, is not a legal decision but rather a
medical judgment. The opinion of qualified
medical personnel will be taken into consideration
by judges when a controversy exists as to
whether an individual is still alive or has died.

Legal Death and Missing Persons
There is a legal presumption that an individual
is alive until proved dead. In attempting to
determine whether a person has died after having
been missing for a certain period of time, the
law assumes that the person is alive until a reason
exists to believe otherwise.

The common-law rule is that where evidence
indicates that the absent person was subject
to a particular peril, he or she will be legally
presumed dead after seven years unless the disappearance
can be otherwise explained. The
seven-year interval may be shortened if the state
decides to enact legislation to change it. Some
states may permit the dissolution of a marriage
or the administration of an estate based on a
mysterious disappearance that endures for less
than seven years. A majority of states will not
make the assumption that a missing person is
dead unless it is reasonable to assume that the
person would return if still alive.

A special problem emerges in a situation
where a person disappears following a threat
made on his or her life. Such an individual
would have a valid reason for voluntarily leaving
and concealing his or her identity. Conversely,
however, the person would in fact be dead if the
plot succeeded. A court would have to examine
carefully the facts of a particular case of this
nature.

In some states, the court will not hold that
an individual has died without proof that an
earnest search was made for him or her. During
such a search, public records must be consulted,
wherever the person might have resided, for
information regarding marriage, death, payment
of taxes, or application for government
benefits. The investigation must also include
questioning of the missing person’s friends or
relatives as to his or her whereabouts.

Death Certificates
The laws of each state require that the manner
in which an individual has died be determined
and recorded on a death certificate.
Coroners or medical examiners must deal with
issues establishing whether someone can be
legally blamed for causing the death. Such issues
are subsequently determined by CRIMINAL LAW
in the event that someone is charged with
HOMICIDE, and by TORT LAW in the event of a
civil suit for WRONGFUL DEATH.

The Nature of Dying
Because of the many advances in modern
medicine, the nature of death and dying has
changed greatly in the past several centuries. A
majority of people in industrial societies such as
the United States no longer perish, as they once
did, from infectious or parasitic diseases.
Instead, life expectancies range above 70 years
and the major causes of mortality are illnesses
such as cancer and heart disease. Medicine is
able to prolong life by many means, including
artificial circulatory and respiratory systems,
intravenous feeding and hydration, chemotherapy,
and antibiotics.

The cultural circumstances of death have
changed as well. A study published by the American
Lung Association in the late 1990s, indicated
that 90 percent of patients who are in
intensive care units of hospitals die as a result of
surrogates and physicians deciding together to
withhold life-sustaining medical care. This rate
doubled from earlier in the decade.

Brain Death
In traditional Western medical practice,
death was defined as the cessation of the body’s
circulatory and respiratory (blood pumping and
breathing) functions. With the invention of
machines that provide artificial circulation and
respiration that definition has ceased to be practical
and has been modified to include another
category of death called brain death. People can
now be kept alive using such machines even
when their brains have effectively died and are
no longer able to control their bodily functions.
Moreover, in certain medical procedures, such as
open-heart surgery, individuals do not breathe
or pump blood on their own. Since it would be
wrong to declare as dead all persons whose circulatory
or respiratory systems are temporarily
maintained by artificial means (a category that
includes many patients undergoing surgery), the
medical community has determined that an
individual may be declared dead if brain death
has occurred—that is, if the whole brain has
ceased to function, or has entered what is sometimes
called a persistent vegetative state. An
individual whose brain stem (lower brain) has
died is not able to maintain the vegetative functions
of life, including respiration, circulation,
and swallowing. According to the Uniform
Determination of Death Act (§ 1, U.L.A.
[1980]), from which most states have developed
their brain death statutes, “An individual who
has sustained either (1) irreversible cessation of
circulatory and respiratory function, or (2) irreversible
cessation of all functions of the entire
brain, including the brain stem, is dead.”
Brain death becomes a crucial issue in part
because of the importance of organ transplants.
A brain-dead person may have organs—a heart,
a liver, and lungs, for example—that could save
other people’s lives. And for an individual to be
an acceptable organ donor, he or she must be
dead but still breathing and circulating blood. If
a brain-dead person is maintained on artificial
respiration until his or her heart fails, then these
usable organs would perish. Thus, the medical
category of brain death makes it possible to
accomplish another goal: saving lives with organ
transplants.

The Right to Die: Individual Autonomy and State Interests
The first significant legal case to deal with
the issue of termination of life-sustaining medical
care was IN RE QUINLAN, 70 N.J. 10, 355
A.2d 647. This 1976 case helped resolve the
question of whether a person could be held
liable for withdrawing a life-support system
even if the patient’s condition is irreversible. In
1975, Karen Ann Quinlan inexplainably became
comatose and was put on a mechanical respirator.
Her parents authorized physicians to use
every possible means to revive her, but no treatment
improved her condition. Although doctors
agreed that the possibility of her recovering consciousness
was remote, they would not pronounce
her case hopeless. When her parents
themselves lost all hope of Quinlan’s recovery,
they presented the hospital with an authorization
for the removal of the respirator and an
exemption of the hospital and doctors from
responsibility for the result. However, the
attending doctor refused to turn off the respirator
on the grounds that doing so would violate
his professional oath. Quinlan’s parents then initiated
a lawsuit asking the court to keep the doctors
and the hospital from interfering with their
decision to remove Quinlan’s respirator.
In a unanimous decision, the New Jersey
Supreme Court ruled that Quinlan had a constitutional
right of privacy that could be safeguarded
by her legal guardian; that the private
decision of Quinlan’s guardian and family
should be honored; and that the hospital could
be exempted from criminal liability for turning
off a respirator if a hospital ethics committee
agreed that the chance for recovery is remote.
Quinlan was removed from the respirator, and
she continued to live in a coma for ten years,
nourished through a nasal feeding tube.
In cases following Quinlan, courts have
ruled that life-sustaining procedures such as
artificial feeding and hydration are the legal
equivalent of mechanical respirators and may be
removed using the same standards (Gray v.
Romeo, 697 F. Supp. 580 [D.R.I. 1988]). Courts
have also defined the right to die according to
standards other than that of a constitutional
right to privacy. The patient’s legal right to
refuse medical treatment has been grounded as
well on the common-law right of bodily
integrity, also called bodily self-determination,
and on the liberty interest under the DUE
PROCESS CLAUSE of the FOURTEENTH AMENDMENT.
These concepts are often collected under
the term individual autonomy, or patient autonomy.
Subsequent cases have also defined the limits
of the right to die, particularly the state’s
interest in those limits. The state’s interests in cases concerning the termination of medical
care are the preservation of life (including the
prevention of suicide), the protection of
dependent third parties such as children, and
the protection of the standards of the medical
profession. The interests of the state may, in
some cases, outweigh those of the patient.
In 1990, the U.S. Supreme Court issued its
first decision on the right-to-die issue, Cruzan v.
Director of Missouri Department of Health, 497
U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224.
Cruzan illustrates the way in which individual
and state interests are construed on this issue,
but leaves many of the legal questions on the
issue still unresolved. Nancy Cruzan was in a
persistent vegetative state as a result of severe
brain injuries suffered in an automobile accident
in 1983. She had no chance of recovery,
although with artificial nutrition and hydration
could have lived another 30 years. Her parents’
attempts to authorize removal of Cruzan’s medical
support were first approved by a trial court
and then denied by the Missouri Supreme
Court. Her parents then appealed the case to the
U.S. Supreme Court.

The Court held that the guarantee of liberty
contained in the Fourteenth Amendment to the Constitution does not prohibit Missouri from insisting that “evidence of the incompetent
[patient’s] wishes as to the withdrawal of treatment
be proved by clear and convincing evidence.”
The Court left other states free to adopt
this “clear-and-convincing evidence” standard
but did not compel them to do so. Thus, existing
state laws remained the same after the Cruzan
decision. Although the Court affirmed that a
competent patient has a constitutionally protected
freedom to refuse unwanted medical
treatment, it emphasized that an incompetent
person is unable to make an informed choice to
exercise that freedom.

The Court explained that the state has an interest in the preservation of human life and in safeguarding against potential abuses by surrogates and is therefore not required to accept the “substituted judgment” of the patient’s family.
The Court agreed with the Missouri Supreme Court ruling that statements made by Cruzan to a housemate a year before her accident did not amount to clear-and-convincing proof that she
desired to have hydration and nutrition withdrawn.
Cruzan had allegedly made statements to
the effect that she would not want to live should
she face life as a “vegetable.” There was no testimony that she had actually discussed withdrawal of medical treatment, hydration, or
nutrition.

After the Court’s decision, Cruzan’s parents
went back to the Missouri probate court with
new evidence regarding their daughter’s wishes.
On December 14, 1990, a Missouri judge ruled
that clear evidence of Cruzan’s wishes existed,
and permitted her parents to authorize withdrawing
artificial nutrition and hydration.
Cruzan died on December 27, 12 days after feeding
tubes were removed.

Advance Directives
A court must consider many factors and
standards in right-to-die cases. It must determine,
for example, whether a patient is competent
or incompetent. A competent patient is
deemed by the court to be able to give informed
consent or refusal relative to the treatment
under consideration, whereas an incompetent
patient (e.g., a patient in a coma) lacks the decision-
making capacity to do so. According to the
principle of individual autonomy, the court
must honor the informed consent of competent
patients regarding their medical care.
For incompetent patients who cannot make
informed decisions regarding their care, an
advance directive may provide a means of decision
making for the termination of life-supporting
treatment. An advance directive is a
document, prepared in advance of incompetence,
which gives patients some control over
their HEALTH CARE after they have lost the ability
to make decisions owing to a medical condition.
It may consist of detailed instructions
about medical treatment, as in a LIVING WILL; or
the appointment of a proxy, or substitute, who
will make the difficult choices regarding medical
care with the patient’s earlier directions in mind.
The appointment of a proxy is sometimes called
a proxy directive or durable power of attorney.
The patient names a proxy decision maker when
he or she is competent. In other cases, the physician
may appoint a proxy, or the court may
appoint a legal guardian who acts on behalf of
an incompetent person. Usually, a relative such
as a spouse, adult child, or sibling is chosen as a
proxy. If an advance directive provides adequate
evidence of a patient’s wishes, a decision about
the termination of life support can often be
made without involving a court of law.
For an incompetent patient whose preferences
regarding medical care are known from
prior oral statements, the patient’s proxy may
make a substituted judgment—that is, a judgment
consistent with what the patient would
have chosen for himself. If no preference regarding
medical treatment is known, the standard
for the proxy’s decision is the “best interests of
the patient.” According to that standard, the
proxy’s decision should approximate what most
reasonable individuals in the same circumstances
as the patient would choose. Individual
states have statutes governing the requirements
for living wills and advance directives.

FURTHER READINGS
Callahan, Daniel. 1990. “Current Trends in Biomedical
Ethics in the United States.” Bioethics: Issues and Perspectives.
Washington, D.C.: Pan American Health
Organization.
Cohen-Almagor, Raphael. 2001. The Right to Die With Dignity:
An Argument in Ethics, Medicine, and Law. New
Brunswick, N.J.: Rutgers Univ. Press.
Council on Ethical and Judicial Affairs, American Medical
Association. 1994. Code of Medical Ethics. Chicago:
American Medical Association.
Ditto, Peter H., Joseph H. Danks,William D. Smucker, et al.
2001. “Advanced Directives as Acts of Communication.”
Archives of Internal Medicine 161.
Howarth, Glennys, and Oliver Leaman, eds. 2001. Encyclopedia
of Death and Dying. New York: Routledge.
Humphry, Derek. 1993. Lawful Exit: The Limits of Freedom for
Help in Dying. Junction City, Ore.: Norris Lane Press.
—. 1991. Final Exit. Eugene, Ore.: Hemlock Society.
Monagle, John F., and David C. Thomasma. 1994. Health
Care Ethics: Critical Issues. Gaithersburg, Md.: Aspen.
Schneider, Carl E., ed. 2000. Law at the End of Life: The
Supreme Court and Assisted Suicide. Ann Arbor: Univ. of
Michigan Press.
Urofsky, Melvin. 1994. Letting Go: Death, Dying, and the
Law. Norman: Univ. of Oklahoma Press.

CROSS-REFERENCES
Euthanasia; Physicians and Surgeons; Power of Attorney.