PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: The Art Of Dying

“It’s a good day to die!” It may be, but HOW does your client want to die? Does he want to die naturally or with the administration of aid-in-dying drugs? If your client has a terminal condition and is a resident of California, Montana, Oregon, Vermont, or Washington, he has a choice. However, if he is a resident of Florida, the administration of aid-in-dying drugs is illegal and he must die naturally. §765.309, F.S. The intent behind this statute is the protection of human life and the preservation of ethical standards in the medical profession.

In Florida, if a patient has a life expectancy of 6 months or less, he is typically admitted to hospice. Hospice may administer pain relieving medication and may withhold or withdraw life-prolonging procedures, such as a feeding tube and respirator, to assist the patient to die peacefully and without pain. Hospice also provides physical, psychosocial, emotional, and spiritual assistance to the patient to promote his well-being, comfort, and dignity throughout the dying process.

But how does the treating physician know whether your client wants to withhold or withdraw life-prolonging procedures? The easiest way is to have your client execute a living will. §§765.301-765.309, F.S. The purpose of a living will is to direct the withholding or withdrawal of life prolonging procedures in the event one has a terminal condition[1], an end-stage condition[2], or is in a persistent vegetative state[3]. §765.302(1), F.S. In the absence of a living will, the decision may be made by a health care surrogate. §765.305, F.S. Absent the above, the decision can be made by an individual referenced in §765.401, F.S. in order of priority.

In contrast with the expansive coverage and simplicity of a living will, a Do Not Resuscitate Order (“DNRO”) deals specifically with the refusal of cardiopulmonary resuscitation in the event of cardiac or pulmonary arrest and must be signed and dated by a physician. §401.45(3), F.S. and Fla. Adm. Code R. 64B8-9.016. DNRO’s are generally used by paramedics in pre-hospital settings such as a patient’s home, a long-term care facility, or during transport to or from a health care facility. Fla. Adm. Code R. 64J-2.018. Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So. 2d 1130 (Fla. 4th DCA 2008) is a good example of why your client should have both a DNRO and a living will.

In Scheible, Mrs. Neumann was admitted to Morse Geriatric Center (“Morse”) in 1992 at the age of 89. At the time of her admission, she was diagnosed with senile dementia and a seizure disorder. Mrs. Neumann’s granddaughter presented Morse with a living will previously signed by herself and Mrs. Neumann that stated there were to be no life-prolonging treatments or resuscitative measures taken on Mrs. Neumann’s behalf if she had a terminal condition or was in the process of dying. Mrs. Neumann did not have a DNRO.

On the evening of October 17, 1995, the nursing home staff found Mrs. Neumann unresponsive in her bed. She was breathing, but staff could not obtain her vitals. They called 911. EMS arrived, intubated her, administered dopamine, and took her to the hospital. During transport, Mrs. Neumann attempted to remove the tubing and her hands were placed in physical restraints. At the hospital, Mrs. Neumann was placed on life support for three days and died four days after life support was discontinued. The cause of death was cardiopulmonary arrest.

The estate sued Morse, in part, for breach of contract on the theory that the living will was incorporated into the contract between Mrs. Neumann and Morse for her care. A representative of Morse testified that that they were aware of the living will, but given the emergency circumstances, the patient’s history of seizures and desire for some care, such as antibiotics, and the absence of a DNRO, they determined that Mrs. Neumann should be evaluated. Apparently, Morse’s defense was not persuasive because the jury found that Morse had breached its contract with Mrs. Neumann and awarded her estate $150,000 in damages.

[1] “Terminal condition” means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death. See, §765.101(22), F.S.

[2] “End-stage condition” means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective. See, §765.101(4), F.S.

[3] “Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is: (a) The absence of voluntary action or cognitive behavior of any kind. (b) An inability to communicate or interact purposefully with the environment. See, §765.101(15), F.S.