Compulsory Lifesaving Treatment for the Competent Adult
Compulsor y Lifesaving Treatment for the Competent Adult
Robert M. Byrn 0
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Recommended Citation Robert M. Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L. Rev. 1 (1975). Available at: http://ir.lawnet.fordham.edu/flr/vol44/iss1/1
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TABLE OF LEADING ARTICLES-AUTHORS
AN ANALYSIS AND REVIEW OF SCHOOL FINANCING REFORM ......................
APPEALABILITY OF CLASS ACTION DETERMINATIONS ...............................
COMMITMENT OF SEXUAL PSYCHOPATHS AND THE REQUIREMENTS OF PROCEDURAL
D UE PROCESS ..............................................................
CONFLICT BETWEEN THE JUDICIARY AND THE LEGISLATURE IN SCHOOL
THE DWINDLING RIGHTS OF TEACHERS AND THE CLOSING COURTHOUSE DOOR ....
THE EIGHTH AMENDMENT AND PRISON CONDITIONS: SHOCKING STANDARDS AND GOOD
EMPLOYERS' MUTUAL AID: No ANTITRUST LAWS NEED APPLY AND ALMOST ALL'S
FAIR IN INDUSTRIAL WAR ..................................................
FOREIGN ACQUISITIONS IN THE UNITED STATES: A CHALLENGE TO THE POTENTIAL
COMPETITION DOCTRINE ...................................................
SECURITIES ACTIONS: EQUITABLE DEFENSES AND THE GOOD FAITH DEFENSE FOR
THE STATE ADVISORY OPINION IN PERSPECTIVE .................................
LEVET: AMBROSE L. (AQUA FORTIs) JORDAN, LAWYER. John D. Feerick ...........
UNGER: KNOWLEDGE AND PoLITIcs. David A. J. Richards .......................
Abortion cases not determinative of right to refuse medical treatment 4-6
Charter organizers and tour operators: air
carriers or ticket agents 153-69
Federal Aviation Act of 1958 156-58
Characteristics of air carriers -158-66
Agency rulemaking must conform strictly
with requirements of Administrative
Procedure Act 402-12
Threefold requirement for "informal
Registered physicians and the Controlled
Substances Act 179-91
Dismissal of action on forum non
conveniens grounds 413-21
Enforceability of judgment 414
Jurisdiction absent special
Characteristics and practices
Challenge to the potential competition
doctrine by foreign acquisitions in the United
Product definition 303-06
Geographic market definition 306-14
Barriers to entry 314-29
Employers' mutual aid-no antitrust laws
need apply 1145-72
Applicability of the antitrust laws to the
labor market 1148-54
An employers' antitrust exemption
child without father's consent is not
violative of equal protection 646-57
Requirement of fitness hearing 647-48
Rational basis test in New York
Zoning ordinance which classifies and
regulates adult movie theatres and bookstores
solely on the basis of the content of the
materials which they purvey held
violative of equal protection clause 657-65
Absent fundamental- rights, rational
relationship test applied 660-61
Balancing test applied regarding
fundamental rights 662-63
Foreign corporations: what constitutes
"doing business" under New York's
qualification statute 1042-61
General guidelines 1045-49
Specific activities 1049-60
Constitutional limitations on the use of
canines to detect evidence of crime 973-90
De jure power not required as element of
extortion under color of official right
Discretion of a trial judge to declare a
mistrial on the basis of a hung jury 389-401
1M1anifest necessity concept 390
Effect of increasing review 392
Effect of previous prosecution 395
Federal equitable relief in matters collateral
to state criminal proceedings 597-616
Differing circuit court views 600-08
Supreme Court view 608-15
Future implications 615-16
Intent not required for conviction of
carrying concealed deadly weapon aboard
Standards of judicial interpretation 863
Definition of deadly weapon 866-68
Revised Federal Criminal Rule 11: tighter
guidelines for pleas in criminal case
Severe penalties under Controlled
Substances Act inapplicable to registered
Standards for doctors under Controlled
Substances Act 186-87
Electronic intelligence gathering and federal
Dispute over applicability of federal law
Federal safeguards and national security
intelligence gathering 339-51
Federal common law created to allow
survival of section 1983 action to decedent's
State substantive law 668-69
Federal common law 669-74
Affected by compelling state interest 10-12
Establishment clause and validity of
reasonable accommodation rule 442-52
Free exercise clause protects houses of
worship from restrictive zoning ordinances
Civilian review of military habeas corpus
Military justice system 1228-33
Civilian review 1234-44
Over school boards for alleged denial of
teachers' rights 539-41
State interest limits competent adult's
rejecting lifesaving treatment for minor 33-35
Union's duty of fair representation held to
be breached by negligent failure to act on
behalf of members 1062-67
Eighth amendment and prison conditions:
shocking standards and good faith 950-72
Death penalty 955-57
Prison conditions 957-66
Defense of good faith to a § 1983 action
for damages 966-72
Timely revocation hearings for criminal
violations of parole 373-88
No zone of privacy involved in refusal of
medical treatment 36
Teachers' rights 524-529
Consolidation order appealable under
collateral order doctrine 433-42
Reasons for accepting appeal 435-36
Refusal of precertification notice to
potential plaintiffs 421-33
Revised Federal Criminal Rule 11: tighter
guidelines for pleas in criminal cases
As a means of defeating the Statute of
Development of § 217A 114-119
Use to defeat statute of frauds 119-128
For denial of teachers' rights
Conflict between the judiciary and the
legislature in school desegregation 1206-27
Federal courts 1207-12
Congress 1212-2 1
Interaction between the legislature and
the judiciary 1221-25
Dwindling rights of teachers 511-47
History of teachers' rights 512-15
Freedom of association 515-18
Freedom of speech 518-24
Right to privacy 524-29
Equal protection 529-34
Due process rights of non-tenured teachers
School financing reform 773-95
Search for applicable standard 774-79
Major school financing plans 779-81
Constitutional issues 781-84
Reform through state courts 784-87
Litigation through state education clause
Limitations on the use of canines to detect
evidence of crime 973-90
Rights of parolees and probationers 617-36
Attorney-client relationship and the Code of
Professional Responsibility: suggested
attorney liability for breach of duty to
disclose fraud to the SEC 1113-44
Clarification regarding extraterritorial
application of American securities laws 674-87
Governing principles 675-80
Statute of Frauds defeated through use of
promissory estoppel 114-29
Free exercise clause of first amendment pro
tects houses of worship from restrictive
Zoning ordinance which classifies and reg
ulates adult movie theatres and
bookstores solely on the basis of the content
of the materials which they purvey held
violative of equal protection clause
Long after Rome had eclipsed, Edward Gibbon sought to isolate the
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impress. He could have been describing George Bacon:
I first met Professor Bacon when I was privileged to study the law of
sales under him. No one would pretend that the Professor was a
colorful man; but then neither was the classical Roman. Rather, he
was a consummate craftsman, a meticulous scholar.
Having fought in the Rainbow Division during World War I,
George returned to the Law School in 1926. His scholarly writing and
conscientious teaching ability quickly made him a recognized authority
in contract and sales law. His staunch New England character, his
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Ave atque vale!
Ten years ago when George Bacon was vacationing at his cousin's
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When Bowdoin honored the President of Fordham, George's "cup
Then would follow stories of Fordham Law School, "uptown," the
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Everyone whom I have ever known at Fordham Law School
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realized. All of us at Fordham Law School loved George Bacon as
deeply as: "He loved Fordham Law School."
JOHN E. MCANIFF
Adjunct Professor of Law
GEORGE W. BACON
7ith a genuine sense of sadness, the Editors of the FORDHAM LAW
REVIEW dedicate this issue to a man who was renowned and
)ected as a lawyer, a legal scholar and a gentleman.
or over thirty years, he instructed future lawyers, judges, law professors
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rmw dedicate this issue in memoriam to Professor George W. Bacon.
COMPULSORY LIFESAVING TREATMENT
FOR THE COMPETENT ADULT
ROBERT M. BYRN*
A SIGNIFICANT problem in any discussion of sensitive
medicallegal issues is the marked, perhaps unconscious, tendency of
many to distort what the law is in pursuit of an exposition of what
they would like the law to be. Nowhere is this barrier to the intelligent
resolution of legal controversies more obstructive than in the debate
over patient rights at the end of life. Judicial refusals to order
lifesaving treatment in the face of contrary claims of bodily
selfdetermination or free religious exercise are too often cited in support of
a preconceived "right to die," even though the patients, wanting to
live, have claimed no such right. Conversely, the assertion of a
religious or other objection to lifesaving treatment is at times
condemned as attempted suicide, even though suicide means something
quite different in the law.
The purpose of this Article is to elucidate the present law and the
current trends concerning the question of whether a competent,
unwilling adult may be required to undergo lifesaving medical treatment. I
begin with a consideration of five cases typical of the situations
wherein courts, deferring to rights implicit in the American concept of
personal liberty, have given priority to patient choice. In discussing
these cases, I have not attempted in this first section of the Article to
carry them beyond their facts and the exact language of the courts.
Quite the contrary, my goal has been to provide a detailed, rigorous,
and conservative critique for it is impossible to project the full sweep
of the patient's right to forego lifesaving treatment without a close
scrutiny of the situations in which courts have ordered the treatment.
The second section of the Article examines five decisions in which
various governmental and private interests have been found
sufficiently compelling to overbalance patient choice. Obviously, to the
extent that these limiting decisions are valid, they define the extent of
* Professor of Law, Fordham University School of Law.
1. Since the matterathand always involves patients who are indisputably alive, the problem of
defining death is irrelevant. See Friloux, Death, When Does it Occur?, 27 Baylor L. Rev. 10 (1975);
Note, The Time of Death-A Legal, Ethical and Medical Dilemma, 18 Catholic Law. 243 (1972).
Also beyond the scope of this Article is the established right of a court of equity to order lifesaving
treatmentfora minor over parental objection. See People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104
N.E.2d 769, cert. denied, 344 U.S. 824 (1952); State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert.
denied, 371 U.S. 890 (1962); In re Vasko, 238 App. Div. 128, 263 N.Y.S. 552 (2d Dep't 1933).
THE PARAMOUNTCY OF PATIENT CHOICE: FIVE MODELS
The Right of Bodily Control in a Non-emergency-Prognosis:
Poor Without the Treatment
In Erickson v. Dilgard,2 a competent, conscious adult patient was
admitted to a county hospital, suffering from intestinal bleeding. An
operation was suggested, including a transfusion to replace lost blood.
The transfusion was deemed necessary "to offer the best chance of
recovery," in that "there was a very great chance that the patient would
have little opportunity to recover without the blood."'3 The patient
consented to the operation but refused the transfusion. The
superintendent of the hospital, in seeking an order to compel the transfusion,
stated that the refusal "represented the patient's calculated decision. ' 4
Although the patient's refusal was based on religious grounds, s the court
chose another avenue for its decision:
The County argues that it is in violation of the Penal Law to take one's own life and
that as a practical matter the patient's decision not to accept blood is just about the
taking of his own life. The court [does not] agree... because it is always a question of
judgment whether the medical decision is correct .... [I]t is the individual who is the
subject of a medical decision who has the final say .... [T]his must necessarily be so
in a system of government which gives the greatest possible protection to the
individual in the furtherance of his own desires. 6
Erickson has certain distinguishing characteristics. While the odds
for surviving the operation were good with a transfusion and poor
without it, there is no clear indication in the case of a present threat to
life. There was testimony that "an operation was necessary to tie off
the bleeding site," but no testimony-at least, the court referred to
none-of imminent danger of death. 7 Implicit in the court's opinion is
a conclusion that the patient was not in extremis, and conceivably
might not become so even without the treatment.8 Furthermore,
though the odds for survival were poor, the operation might have
proceeded successfully without the transfusion. Whether these
concluMandated medical treatment for mental incompetents will be discussed only in so far as it is necessary
to distinguish the competent from the incompetent adult patient.
2. 44 Misc. 2d 27, 252 N.Y.S.2d 705 (Sup. Ct. 1962).
3. Id. at 28, 252 N.Y.S.2d at 706.
5. See 33 Fordham L. Rev. 513 (1965).
6. 44 Misc. 2d at 28, 252 N.Y.S.2d at 706.
7. Some have advocated limiting the term "terminal illness" to imminent death because of
unexpected remissions. Note, Informed Consent and the Dying Patient, 83 Yale L.J. 1632 n.1
8. See also United States v. George, 239 F. Supp. 752
(D. Conn. 1965)
where the court
contrasted a "precarious" condition with a "critical" one. Id. at 752-53.
sions of the court were medically correct is irrelevant. They are the
premises of the opinion.
In the absence of an emergency, the suicide analogy was inapposite.
The court was guided by the settled principle that a competent,
conscious adult patient has "the final say" on whether to submit to
medical treatment. Courts have long and uniformly held that "[e]very
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 patient's consent, commits an assault . . ..
The Erickson court obviously regarded this right as fundamental-as
"necessarily so" in a system of government oriented toward personal
A natural corollary to Erickson is In re Nemser, wherein the court
refused to order the amputation of the leg of an elderly woman when
there was conflicting medical opinion as to whether the amputation
would kill, cure, or merely lead to further surgery. Mrs. Nemser's
competency was in doubt, but it is clear that if a court will not
override patient choice to order relatively minor treatment, such as a
blood transfusion, in the face of a poor prognosis, it will not order
radical surgery in the face of conflicting prognoses, especially where
there is evidence of substantial hazard to the patient.' 2
The Right of Privacy in a Non-emergency-Prognosis:
Death Without the Treatment
In re Yetter 13 presents a case where death was perhaps inevitable,
but not imminent. Mrs. Yetter, a sixty year old inmate of a state
mental institution, was discovered to have a breast discharge,
indicating the possible presence of a carcinoma. A biopsy with corrective
surgery, if necessary, was recommended. Mrs. Yetter refused, because
she felt that the death of her aunt had been caused by such surgery. "ilt
was her own body and she did not desire the operation."' 4 Her brother
petitioned for appointment as her guardian so as to consent to the
surgery. At the hearing Mrs. Yetter stated that she was afraid of surgery,
refused. 62 Unanimous consent was finally obtained after the hospital
sought court permission for the procedure. 6 3 It is difficult to
understand why the consent of the spouse is necessary in such situations. 6
The relationship of husband and wife, without more, does not confer
authority to make a binding decision on the administration of
emergency lifesaving treatment. 65
A different question arises when the spouse's refusal to consent
expresses the wishes of the unconscious patient. If there is a barrier to
treatment, it is the patient's nonconsent, not the refusal of his
spouse. 6 6 Mr. Murray presumably wanted to live and desired the
treatment that would heal the condition which threatened him. No
third party had a right to interfere.
The Five Models: In Sum
The five models are not exhaustive of all situations where the
validity of compulsory lifesaving medical treatment for a competent
adult may come into issue. They do typify the five situations in which
the issue has been raised and in which courts, in the absence of an
overbalancing state interest, have given priority to patient choice. The
relevant fundamental patient rights-all concomitants of the American
62. N.Y. Post, Nov. 19, 1974, at 13, col. 1.
64. There is a universally accepted principle that a present emergency justifies treatment of
an unconscious, but previously competent adult, under a theory of implied consent, at least when
there is no evidence that the adult would have refused the treatment if conscious and aware of
impending death. See W. Prosser, Torts § 18, at 103 (4th ed. 1971); Restatement (Second) of
Torts § 62, Illustration 3 (1965); N.Y. Pub. Health Law § 2504(3) (McKinney Supp. 1974).
65. Karp v. Cooley, 493 F.2d 408, 421 (5th Cir.), cert. denied, 419 U.S. 845 (1974);
Application of Pres. & Dirs. of Georgetown College, Inc., 331 F.2d 1000, 1008 (D.C. Cir.), cert.
denied, 377 U.S. 978 (1964).
66. In Collins v. Davis, 44 Misc. 2d 622, 254 N.Y.S.2d 666
(Sup. Ct. 1964)
, a wife refused to
consent to an operation deemed immediately necessary to save her comatose husband's life. There
were no religious objections to the procedure nor was there any indication that the wife's decision
was evidentiary of the patient's choice, although the court did distinguish Erickson on the ground
that the patient there was at all times conscious. The Collins court, in ordering treatment, made
no comment on the efficacy of the wife's refusal but instead stressed the hospital's legal dilemma.
See notes 145-61 infra and accompanying text.
N.Y. Pub. Health Law § 2504(3) (McKinney Supp. 1974) provides: "Medical, dental, health
and hospital services may be rendered to persons of any age without the consent of a parent or
legal guardian when, in the physician's judgment an emergency ex-ists and the person is in
immediate need of medical attention and an attempt to secure consent would result in delay of
treatment which would increase the risk to the person's life or health." The clear inference is that
consent of a third person is required for lifesaving treatment only if the patient is a minor or has a
"legal guardian," and even then, only if there is time. No mention is made of a spouse. Unless a
spouse's refusal to consent is based on the unconscious patient's own previously expressed desires,
it would seem to be irrelevant in emergency situations.
concept of personal liberty-are: (1) the right to determine what shall
be done with one's body in Erickson, Yetter and Murray, and its
corollary, the right to acquiesce in imminent and inevitable death, as in
Martinez; and (2) the right of free exercise of religion, in Brooks. As we
have seen, it is misleading to characterize any of these as a right to die.
As a general rule the exercise of any right may be limited if it
conflicts with compelling state interests, at least where there are no less
drastic means available to accomplish the state purpose. A
consideration of the cases in which a state interest has been held to overbalance
the competent adult's decision to forego medical treatment will
facilitate a projection, beyond the five models presented, of a more
comprehensive set of situations wherein patient choice should be paramount.
THE SUBORDINATION OF PATIENT CHOICE: FIVE MODELS
The State Interest in Preventing Suicide
Since ignominious burial and forfeiture of goods have been
abolished as forms of punishment in the United States, suicide, not
being punishable, is not strictly speaking a crime. In some American
jurisdictions attempted suicide remains criminal. 67 Even in those
states that no longer punish attempted suicide, there is a recognized
privilege to use reasonable force to prevent another from committing
suicide or inflicting serious harm upon himself. 68 Is it possible to
analogize the refusal of lifesaving treatment to an attempt at suicide or
self-inflicted injury so that saving action by another is justified?
The answer requires some examination of the common law. From the
earliest times, the law of suicide dealt with cases in which an
individual (fe/o de se) purposefully set in motion a death-producing agent
with the specific intent of effecting his own destruction or, at least,
serious injury. Suicide was malum in se, the equivalent of murder. 6 9
Thus, "in legal acceptation and in popular use, the word suicide is
employed to characterize . . . . 'the act of designedly destroying one's
own life, committed by a person of years of discretion and of sound
When an individual actively inflicts injuries upon himself in an
attempt to take his own life, a justification for coerced medical
treatment may be that the patient's refusal is an extension of the
suicide attempt, and the medical procedures a privileged interference
with the attempt. 7 1 Otherwise, given its elements of active causation and
specific intent to end life, suicide would seem to have little application to a
competent adult's refusal of lifesaving medical treatment. The confusion
of the two probably had its genesis in Emile Durkheim's nineteenth
century non-legal definition of suicide, which was predicated on the
assumption that an "objective" analysis of ethical and social phenomena
could take no account of so "intimate a thing" as specific intent. 72
Durkheim defined suicide as "all cases of death resulting directly or
indirectly from a positive or negative act of the victim himself, which he
knows will produce this result. '73 Obviously this is not the common law
definition. Yet it was the one unwittingly adopted by the court in John
F. Kennedy Memorial Hospital v. Heston. 74
Delores Heston, aged 22 and unmarried, was severely injured in an
automobile accident. She was taken to the plaintiff hospital where it
was determined that surgery and a blood transfusion would be
necessary to save her life. She was disoriented and incoherent, but her
mother informed the hospital that the patient and the family, as
Jehovah's Witnesses, were opposed to the transfusion, but not to the
surgery. Upon petition of the hospital, a guardian was appointed to
consent to the transfusion. Surgery was performed and the patient
As in Brooks, 75 the highest court of the state rendered its opinion
after the transfusion had been administered. In affirming the denial of
a motion to vacate the guardianship order, the court observed:
[T]here is no constitutional right to choose to die. Attempted suicide was a crime at
common law . . . . It is now denounced [in New Jersey] as a disorderly persons
Nor is constitutional right established by adding that one's religious faith ordains his
70. Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa. 92, 97 (1878). See also 83 C.J.S. Suicide
§ 1 (1953).
71. Cf. Myer v. Supreme Lodge, 178 N.Y. 63, 70 N.E. 111 (1904), aff'd, 198 U.S. 508 (1905).
72. E. Durkheim, Suicide 42-43 (1951).
73. Id. at 44 (emphasis omitted).
74. 58 N.J. 576, 279 A.2d 670 (1971).
75. See notes 42-47 supra and accompanying text.
76. 58 N.J. at 580, 279 A.2d at 672.
The answer, of course, is that suicide at common law required a
specific intent to die. Miss Heston did not want to die; she did not
''claim a right to choose to die," nor did her religious faith "ordain" her
death. Had the court resorted to the genuine common law test of
specific intent, rather than unwittingly espousing Durkheim's theory, it
would have perceived that an indispensable element of common law
suicide was lacking.
Having set up the strawman of a "right to die," the court proceeded
to knock it down: "Appellant suggests there is a difference between
passively submitting to death and actively seeking it. The distinction
may be merely verbal, as it would be if an adult sought death by
ssetalfr-vdaetsitorunctiionnst,eaidt moafya wdirtuhg.eqIufalthaeutShtoartietymianyterifnetreerrwuiptht othnee omthoedre. o7f7
Not only did the court impute a purpose to Miss Heston which
she did not have ("an adult sought death"), it also failed to appreciate
the second component of common law suicide-that the individual
has purposefully set in motion the death-producing agent. Whether in
other areas of law his conduct be called misfeasance or nonfeasance,
the person who starts out to starve himself to death has no doubt
deliberately set in motion the agency of his own destruction. Miss
Heston had not. For this reason too her conduct cannot be called
attempted suicide. 7 8
The court in Application of President & Directors of Georgetown
College, Inc., 79 made a mistake similar to that of the Heston court. In
Georgetown College it was said that in states where attempted suicide
is not unlawful by statute, the refusal of necessary medical aid is
lawful; whereas in states where attempted suicide is unlawful,
lifesaving medical assistance may be compelled. "Only quibbles about the
distinction between misfeasance and nonfeasance, or the specific intent
necessary to be guilty of attempted suicide, could be raised against this
latter conclusion." '80 As to the first proposition, the failure to outlaw
attempted suicide does not make it lawful in the sense that a right has
been conferred. The existence of a privilege to prevent the suicide
attempt is conclusive on that point. As to the second proposition, the
well-established elements of attempted suicide should not be dismissed
by pejoratives like "quibbles" in order to accommodate a non-legal
Both Heston and Georgetown College are contra to Brooks, but
77. Id. at 581-82, 279 A.2d at 672-73.
78. See generally Ford, Refusal of Blood Transfusions by Jehovah's Witnesses, 10 Catholic
Law. 212, 214-16 (1964).
79. 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964).
80. Id. at 1009.
Brooks represents the trend in the law. In all three cases, the patient
undoubtedly wanted to live, and the distinction from
suicideespecially considering the patient's religious motivation-is clear.
Suicide was also not a problem in either Erickson,8 1 where the patient
wanted to live and the prognosis, though poor, was not of death, or in
Yetter,8 2 where the patient refused treatment because she believed it
would cause her death. The active causation and specific intent
components of suicide were absent in each case. In Murray8 3 the
patient presumably wanted the treatment. And in Martinez,s4 the
patient, though willing to acquiesce in the inevitability of early death,
did not set in motion the death-producing agency with the specific
intent of causing her own death, nor could she have prevented her
death by submitting to treatment.
More complex problems arise when one combines and permutes the
facts of the five models. Consider the following hypothetical examples:
Patient A, an otherwise healthy athlete, requires a leg amputation.
Without it he will die, perhaps immediately or at some later time,
distinguishing the merely poor prognosis in Erickson. The amputation
will cure completely the condition that threatens to cause his death,
distinguishing Martinez. A does not fear the surgery itself,
distinguishing Yetter, nor does he have religious objections, distinguishing
Brooks. Nevertheless, he refuses, distinguishing Murray, because "I
came into life with two legs and I'm going out with two legs."
Patient B is paralyzed or otherwise seriously incapacitated by a
disease or injury which threatens to cause B's death at some time
unless he consents to medical treatment. The treatment will neutralize
the condition but will not restore B to health. He refuses for no other
reason than "I would rather die than live like this."
Patient C has a chronic and ultimately fatal disease. Medical
treatment will enable him to live and function normally for an
unpredictable period of time, but death from the existing condition is inevitable.
Knowing that he is doomed by the disease, C refuses the treatment
solely because, "I would rather go now than live in dread."
Patient D is elderly and in a debilitated condition. He suffers from a
disease or injury which will cause death sooner or later unless cured or
controlled by arduous medical treatment. Although he is a "good risk,"
D refuses treatment because, "I'm too old for all that trouble and it's too
expensive for my family."
It may be argued that A, B, C and D all have chosen to die and
See notes 2-10 supra and accompanying text.
See notes 13-21 supra and accompanying text.
See notes 62-66 supra and accompanying text.
See notes 57-61 supra and accompanying text.
that in rejecting treatment, they have, by analogy to the doctrine of
avoidable consequences in tort law, become intervening active causes
of their own prospective deaths; hence they are attempting suicide. 85 It
is submitted that an examination of the rationale of the common law
crime of suicide rebuts the argument.
InHalesv. Petit,86 Justice Dyer listed four objections to suicide. First,
suicide is "[a]gainst nature, because it is contrary to the rules of
selfpreservation... and then to destroy one's self is contrary to nature, and a
thing most horrible." 8 7 In a modern, right-oriented society, the
"unnatural" quality of suicide is translatable into the apparent contradiction
inherent in a claim of right to destroy the life from which all rights flow. 88
But it must be apparent that A, B, C andD have not set out to "destroy"
or "extinguish" their lives or to "execute" themselves. They do not claim a
right of affirmative self-destruction but a right, in a sense, to allow
"nature" to take its course. It is not they, but the natural progress of their
ills, which will destroy their lives. Their conduct manifests a kind of
pacifism, a fatalistic attitude far removed from the "extreme forms of
aggression" 89 of the suicidal person who makes war on his own life.
Where there is no claim of a right positively to extinguish that from which
all rights flow, nor a right to kill contra to nature, their conduct is
essentially different from suicide.
Secondly, suicide is "[a]gainst God, in that it is a breach of His
commandment, thou shalt not kill." 90 In modern law, the commandment
finds a modified, secular counterpart in the value placed upon the life of a
human being, qua human, no matter how burdensome or burdened that
life may be. 9' It may be argued, with at least some validity, that actively
killing oneself disvalues human life, qua human, because it constitutes
aggression against life. Suicide treats human life as property which may
be destroyed or alienated at the will of the "owner," contrary to the
principle that since life is unalienable, one may not be allowed to cause or
consent to his own destruction. 92
Some would argue that refusal of lifesaving treatment cheapens life
in the same way, and is indistinguishable from suicide. 9 3 But A, B, C
and D are not engaged in aggression against life; they are not treating
their lives as private property which may be alienated or destroyed at
will. Quite the contrary, their claim is to passivity so that life may run
its own course. They defer to the vagaries of life. We may disagree
with the morality or wisdom of what they choose to do (or more
accurately, not do), but it is wrong to say that their conduct
undermines society's concept of the inalienability of life. A court, in ordering
a lifesaving amputation for an eighty-four year old incompetent, may
wisely opine that the concern we express for human life affects the
very structure of society. At the same time it can consistently assert
that the operation could not have been performed had the patient been
competent and unwilling to undergo it.94
Thirdly, suicide is "[a]gainst the King in that hereby he has lost a
subject... one of his mystical members. "9 5 The common law prerogative
of the King has been transformed in American law into an inherent
function of goverment. "[T]he care of human life and happiness, and not
their destruction, is the first and only legitimate object of good
government."'9 6 As a result, "[t]he life of every human being is under the
protection of the law, and cannot be lawfully taken by himself, or by
another with his consent, except by legal authority. ' 97 However, as so
expressed, the governmental function of caring for life, and the corollary
obligation of protecting it, extend only so far as preventing the active
destruction of life. 98 A, B, C andD are not engaged in actively destroying
or taking their own lives.
Finally, suicide is also an offense against the King, in that "the King,
who has the government of the people, [takes] care that no evil example
be given them . . . ."99 Certainly it remains within the power of
government to bar conduct which will encourage suicide.' 0 0 To the
extent that any killing invites imitation, active self-destruction may
serve as an "evil example" to other susceptible members of society. But
it is difficult to conceive how the individual judgments of A, B, C and
D to let their lives run their courses will persuade others to seek death.
In the experience of one surgeon, a seriously ill patient typically "clings
to life." ° One person's refusal of treatment will not spur others to do
Neither the actual patients in the models in Part II, above, nor the
hypothetical patients A, B, C and D were attempting suicide as that term
should be properly understood. Nor can interference in the competent
adult's decision to forego lifesaving treatment be justified as a
paternalistic exercise of the police power. Paternalism, in this respect, should be
limited to preventing hazardous or fatal acts. 102
Because the prevention of suicide and the paternalistic exercise of
the police power do not, in general, appear to provide bases for
compelling a competent adult to undergo lifesaving medical treatment,
we are required to re-examine the breadth and application of the rights
which underpin the models in Part II, above. Various questions may be
asked. Which right has the patient asserted? Does he want to live or
would he rather accept death? Is the risk of death immediate? Is the
proposed treatment simple or arduous, hazardous or non-hazardous?
Will the treatment merely postpone inevitable death? Will the patient
be, or remain incapacitated or mutilated after treatment? Despite the
numerous possibilities, the principle is easily stated: Assuming no other
external, compelling state interest, a patient's decision to reject
treatment ought to prevail in every case, including: (a) where the prognosis
is poor although life is not immediately threatened (Erickson); (b)
where the patient wants to live, although his reasons for rejecting
treatment are unreasonable (Yetter and Brooks); (c) where death is
inevitable despite treatment (Martinez and patient C); and (d) where the
treatment is particularly hazardous or arduous, or where the patient
99. 75 Eng. Rep. at 400.
100. See Ritter v. Mutual Life Ins. Co., 169 U.S. 139, 154 (1898) (against public policy to
include suicide within life insurance coverage).
101. W. Nolen, The Making of a Surgeon 215 (1972). "Resigning oneself to fate is not the same as
seeking death. No one I've ever cared for has actually sought death, at least not openly." W. Nolen, A
Surgeon's World 280 (1972).
102. See notes 13-56 supra and accompanying text.
will remain seriously incapacitated or mutilated after treatment
(patient D, patients A and B).
What then is left? The one situation not covered involves the patient
who can be treated relatively easily and inexpensively, without
discomfort or hazard, in such a way that the threat of death from his
condition will be eliminated, and the patient will not be incapacitated
or mutilated. This patient rejects treatment only because he wants to
die. Given all the factors, one might argue that the individual has
technically become the active cause of his own impending death-like
the person who sets out to starve himself to death. It has been said, for
example, that the diabetic who refuses to take insulin is attempting
suicide. 10 3 The assertion may be technically correct, but there are
substantial practical problems in so labelling the conduct. How do we
determine the patient's real motives? Does he truly want to die or is his
conduct traceable to some other, albeit unreasonable, motivation like
that of Mrs. Yetter? Is he old, debilitated and resigned to an early
death, or young, healthy and seeking death? Should we distinguish the
two? At what point may the law properly intervene-early or when
the situation becomes critical?
Perhaps it is the difficulty of resolving these questions, or the rarity
of the case, or both, that have persuaded some judges to make
sweeping statements like, "[a]s to an adult (except possibly in the case of a
contagious disease which would affect the health of others) I think there is
no power to prescribe what medical treatment he shall receive, and ...he
is entitled to follow his own election, whether that election be dictated by
religious belief or other considerations."' 0 4
It is impossible to predict how a court would deal with the last
situation. It might never come to judicial attention. Because of the
rarity of the case and the overwhelming difficulties of proof, it ought
not give us further pause. We can therefore formulate a rule of general
application, beyond the specifics of the five models in Part II. I would
state it as follows: aside from the individual with self-inflicted injuries
resulting from a suicide attempt, a competent adult is free to reject
lifesaving medical treatment unless some other compelling state
interest overbalances his claim of right. It is as much an error to distort
this freedom to include a right to commit suicide, as it is to condemn
its exercise as an attempt at suicide. Rejection of lifesaving therapy
103. Perr, Suicide Responsibility of Hospital and Psychiatrist, 9 Clev.-Mar. L. Rev. 427, 433
104. People v. Pierson, 176 N.Y. 201, 212, 68 N.E. 243, 247 (1903) (Cullen. J.,concurring);
accord, In re Osborne, 294 A.2d 372, 376 (D.C. Ct. App. 1972) (Yeagley, J., concurring).
and attempted suicide are, and should be, as different in law as the
proverbial apples and oranges.
B. The State Interest in ProtectingIncompetents
In Long Island Jewish-Hillside Medical Center v. Levitt, 105 an
eighty-four year old man was admitted to plaintiff hospital with a
gangrenous leg which, if not amputated, would cause his death. He
was a good surgical risk, but vascular disease disabled him from
making judgments and decisions concerning his own health.
Emphasizing the value of the life of every human being and the necessity
of maintaining society's concern for human life, the court ordered the
amputation. The decision is reflective of judicial concern that the lives
of the elderly, the ill, and the burdensome not be devalued. The state,
as parenspatriae, has a special duty to help the person who is mentally
incompetent to make such vital decisions as whether to submit to
necessary treatment.10 6 This concern for life, along with recognition of
the state's duty, has persuaded courts to order substantial surgery
under circumstances where, as the court pointed out in Levitt, a
competent adult's refusal of treatment would be binding.' 0 7
By definition, an incompetent lacks the ability to choose, so that
court-ordered lifesaving treatment is not the subordination of patient
choice to a compelling state interest. Nevertheless, Levitt is
appropriate for consideration of the efficacy of patient choice because it
exemplifies the solicitude of the law for the right to live of the helpless.
This commendable attitude sometimes unduly influences the position
of the court and the medical community when an unconscious or
disoriented patient is brought to a hospital in need of emergency
lifesaving treatment, and the medical personnel are informed of a prior
decision by the individual to forego treatment should an emergency
105. 73 Misc. 2d 395, 342 N.Y.S.2d 356
(Sup. Ct. 1973)
106. In re Weberlist, 79 Misc. 2d 753, 360 N.Y.S.2d 783
(Sup. Ct. 1974)
107. When the patient (unlike Levitt) has been adjudicated an incompetent, the obligation of
providing necessary medical care falls upon his committee, and the consent of the committee
must be obtained. Dale v. State, 44 App. Div. 2d 384, 355 N.Y.S.2d 485 (3d Dep't 1974). If the
committee were arbitrarily to refuse to consent, a court, upon application, would undoubtedly
order the necessary procedures, using as authority decisions overriding parental rejection of
treatment for minors.
Commitment to an institution does not constitute an adjudication of incompetency. If the
committed person is factually capable of making a judgment on recommended therapy, courts
will treat the patient's decision as one competently made. See Winters v. Miller, 446 F.2d 65 (2d
Cir.), cert. denied, 404 U.S. 985 (1971); New York City Health & Hosps. Corp. v. Stein, 70 Misc.
2d 944, 335 N.Y.S.2d 461 (S
up. Ct. 1972
). The capability of making this judgment has been
defined as "capacity to know and understand the nature and extent of her illness and the
consequences of her refusal to consent to . . . treatment. . .. " Id. at 946, 335 N. Y.S.2d at 464.
occur. A conflict exists between the patient's right to reject treatment
and the court's parens patriae concern for the lives of incompetents,
given the usual implication of consent in an emergency, 10 8 and the fact
that the patient's previously expressed objections were not voiced in
the face of a real hazard of imminent death.
Since the choice belongs ultimately to the patient, the implication of
consent is the key. It is a fiction based not on any conduct of the
patient, but on an estimate of how a reasonable man would react
under the circumstances.10 9 Is the implication destroyed by a
previously expressed objection to treatment?
Relevant to this question is the decision in Application of President
& Directors of Georgetown College, Inc. 110 In Georgetown College,
Mrs. Jesse Jones, a twenty-five year old woman, was brought to the
hospital in imminent danger of death from the loss of two-thirds of her
body blood due to a ruptured ulcer. After a district court judge refused
to order a transfusion, a circuit judge visited Mrs. Jones in the hospital
and told her that she would die without the blood, but that there was a
better than fifty percent chance of survival with it. "The only audible
reply I could hear was 'Against my will.' "I"1 The court concluded,
"Mrs. Jones was in extremis and hardly compos inentis at the time in
question; she was as little able competently to decide for herself as any
child would be. Under the circumstances, it may well be the duty of a
court ... to assume the responsibility of guardianship for her, as for a
child, at least to the extent of authorizing treatment to save her
life." 112 Incompetency became another basis for ordering the
treatment. It is possible to challenge the court's finding of fact of
incompetence since Mrs. Jones' reply to the court's question was entirely
consistent with her long-held beliefs as a Jehovah's Witness. 113 But
this aside, the court's decision is some authority for the proposition
that the previously expressed sentiments of a patient are irrelevant
when the patient has become disoriented or unconscious prior to being
informed that rejection of treatment will bring imminent death.
Given the patient's fundamental right to reject treatment, the sole
function of a court in this situation is to make a good faith finding with
respect to what the desires of the patient would have been had he been
conscious and competent. 114 Insofar as Georgetown College may be
108. See note 64 supra.
109. V. Prosser, Torts § 18, at 103 (4th ed. 1971).
110. 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964).
111. Id. at 1007.
112. Id. at 1008 (footnote omitted).
113. See 113 U. Pa. L. Rev. 290, 294 (1964).
114. See Cantor, A Patient's Decision to Decline Life-Saving Medical Treatment: Bodily
Integrity Versus the Preservation of Life, 26 Rutgers L. Rev. 228, 231-32 n.15 (1973).
read to mean that previously articulated beliefs are irrelevant, it would
be considered in error. Where: (a) the objections to a particular kind of
treatment (for instance, blood transfusion in the case of Jehovah's
Witnesses) or to any treatment at all (for example the faith-healing
sects) 1 5 are religiously motivated, (b) the evidence indicates a strong
adherence to the tenets of the sect, and (c) there is no countervailing
evidence of irresolution, I would urge that the usual implication of
consent is destroyed, and the patient's right to reject lifesaving
treatment should prevail. In other situations it would be more difficult for
the court to determine the desires of the patient. Such variables as the
basis, profundity and longevity of the patient's objections, his age and
usual state of health, the nature and risks of the treatment, and the
likelihood of medical success and return to health will all, no doubt,
enter into the court's calculations. Because life hangs in the balance, it
seems probable that a court, properly aware of the incalculable value
of even the most burdened life, will more frequently decide in favor of the
treatment. In any event, the decision must be ad hoc.
A related problem arises when an irreversibly dying patient lapses
into unconsciousness. May life-prolonging medical treatment be
terminated prior to actual death? Martinez1' 6 does not govern because Mrs.
Martinez was competent and capable of personally rejecting the
proposed treatment. Murray'1 7 is factually distinguishable because death
could be avoided by proper treatment. Yet the two cases do offer some
clue to the answer.
Regardless of her objections to further treatment, it seems likely that
Mrs. Martinez did not want to be neglected completely. If she were
thirsty or hungry or uncomfortable or experienced any of the other
usual needs of life, she would expect to be cared for. Neglect would
degrade her, and would manifest an inhumane disregard for life on the
part of medical personnel. 118 All else aside, to have failed to provide
for Mrs. Martinez' routine needs would have been inexcusable. The
conclusion should be the same in the case of the unconscious patient.
Mr. Murray presumably wanted to live, but his implied consent is
only half of the doctor-patient relationship. The other half is the
doctor's duty of reasonable care once he undertakes treatment. What
can the irreversibly dying and unconscious patient reasonably expect
of the doctor?
115. See Cawley, Criminal Liability in Faith Healing, 39 Minn. L. Rev. 48 (1954).
116. See notes 57-61 supra and accompanying text.
117. See notes 62-66 supra and accompanying text.
118. It is possible that some jurisdictions would find such conduct sufficiently outrageous to
give rise to a cause of action for the mental distress caused to grieving relatives. See Rockhili v.
Pollard, 259 Ore. 54, 485 P.2d 28 (1971) (en banc); Grimsby v. Samson, 85 Wash. 2d 52, 530
P.2d 291 (1975) (en banc).
Clearly the patient has no right to anticipate the continuation of
therapy which will not even prolong life. Blood transfusions in the
case of massive, unyielding hemorrhaging may accomplish nothing. 119
There can be no obligation to do that which does not even buy time for
the patient. Take the situation one step backwards. Patient E, in the
last stages of a fatal and incurable disease, contracts pneumonia.
Penicillin might be effective, but it is not administered---"why prolong
the agony?"' 20 Patient F has had a severe heart attack; his kidneys
have ceased to function-an early death is inevitable. After
consultation with F's family, F's doctor turns off the kidney machine.
The lives of both E and F might have been prolonged for a short
period. Since the legal relationship is between the patient and the
doctor, F's family's consent appears to be irrelevant. Further the two
cases are somewhat distinguishable in that E's doctor negatively
withheld treatment while F's affirmatively turned off the machine.
Finally the law presumes a will to live, and the law is particularly
solicitous of the helpless. These are the arguments against the
physicians' conduct. They are unpersuasive. The majority and best opinion is
that the doctors breached no duty, either to the patients (civil liability)
or to society (criminal liability) when they ceased treatment of E and
It is true, of course, that a doctor or hospital that undertakes the care
of a patient may not abandon him.' 2 1 There are several reasons for
distinguishing the conduct toward E and F from culpable
It has been said that the physician's duty continues so long as the
case requires; 122 it is unlikely, under this standard, that discontinuance
of life-prolonging measures for E and F would be held a breach of duty
because the cases no longer "require" the physician's services.
In addition the physician is held to a duty of ordinary care. To
require him to continue futile treatment goes beyond the demands of
ordinary care. He is not required to exert his skill or expend his
resources in vain. The conduct of E's and F's doctors is properly
viewed as an omission to exert skill or expend resources involving no
breach of duty because there was no want of ordinary care.12 3
Doctors also commonly understand that they are not required to do
that which is useless. 124 As a result, it cannot be said that E's and F's
doctors' conduct violated the usual standards of good medical
Finally, futile life-prolonging measures sometimes proceed from
motives not entirely admirable. One critic alleges that some patients have
been kept alive in order to gain experience in the intensive-care
treatment of their diseases. 12 6 The patient becomes a test subject while
his family's depleting finances are subtly extorted by the
experimenters. An unscrupulous doctor may continue to treat a hopeless case just
to earn a fee. 12 7
In sum, moralists are generally agreed that there is no obligation to
continue lifesaving efforts in a hopeless case, and no decision has been
found holding a doctor liable for ceasing treatment under these
circumstances. 128 All these factors compel the conclusion that E's and F's
doctors did not culpably abandon their patients. It was the disease or
injury-not their omissions-which caused death.12 9
124. Ayd, Voluntary Euthanasia: The Right to be Killed-Con, Medical Counterpoint, June,
1970, at 12.
125. Louisell, Euthanasia and Biathanasia On Dying and Killing, 22 Catholic U. L. Rev. 723,
126. Ayd, Voluntary Euthanasia: The Right to be Killed-Con, Medical Counterpoint, June,
1970, at 16.
127. W. Nolen, The Making of a Surgeon 201-02 (1972).
128. Survey, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48
Notre Dame Law. 1202, 1208-09 (1973).
129. See Fletcher, Prolonging Life, 42 Wash. L. Rev. 999, 1004-16 (1967). Lest this
conclusion be misunderstood, let us make some crucial distinctions. First, absent contrary
evidence of the patient's own wishes, the medical profession has no right to terminate treatment
when the patient's life can be saved. See The Citation, June 1, 1974, at 49 (recounting a decision In
Maine ordering medical treatment for a newborn infant who was left to die). Secondly, there is a wide
chasm between allowing the irreversibly dying patient to die and killing him. The duty of ordinary
care does not require a doctor to engage in an exercise in futility. By the same token, it does not confer
a license to kill. "Discontinuing the intravenous feedings and antibiotics, taking away the supports
we use to prop up a life, is one thing; doing something to shorten a life is quite another. I have no
hesitation aboutthefirst; the second is beyond me." W. Nolen, A Surgeon's World 279-80 (1972). The
House of Delegates of the American Medical Association adopted the following statement on
December 4, 1973: "The intentional termination of the life of one human being by another. . . is
contrary to that for which the medical profession stands and is contrary to the policy of the American
"The cessation of the employment of extraordinary means to prolong the life of the body when
there is irrefutable evidence that biological death is imminent is the decision of the patient and/or
his immediate family. The advice and judgment of the physician should be freely available to the
patient and/or his immediate family." Medical-Moral Newsletter, May, 1975, at 17.
The State Interest in Protecting the Medical Profession;
the Medical Profession's Interest in Protecting Itself
In United States v. George,130 the court ordered transfusions for a
thirty-nine year old Jehovah's Witness, the father of four, who had
refused the transfusions for religious reasons while lucid but in a
physically critical condition from a bleeding ulcer. The court adopted
"where applicable" 13 1 the rationale of Georgetown College,132 various
aspects of which have already been discussed, and added a further
In addition to the factors weighed by Judge Wright one consideration is added to the
scale. In the difficult realm of religious liberty it is often assumed only the religious
conscience is imperiled. Here, however, the doctor's conscience and professional oath
must also be respected. In the present case the patient voluntarily submitted himself to
and insisted upon medical care. Simultaneously he sought to dictate to treating
physicians a course of treatment amounting to medical malpractice. To require these
doctors to ignore the mandates of their own conscience, even in the name of free
religious exercise, cannot be justified under these circumstances. patient may
knowingly decline treatment, but he may not demand mistreatmeTnht.e 33
Certainly there is nothing in professional ethics or plain logic which
should require congruence between the doctor's conscience and the
patient's choice. By this I do not mean that the doctor is bound by the
patient's choice to do something contrary to the doctor's conscience.
That is discussed below. I do mean that the patient is not bound by
the doctor's conscience to do something contrary to the patient's
choice, and consequently the doctor may have the right and choice to
The law of informed consent 13 4 would be rendered meaningless if
patient choice were subservient to conscientious medical judgment.
Tort cases condemning unauthorized medical treatment as a
battery,1 35 or, in some instances, if there has been state action, as an
invasion of constitutional rights,' 36 would have to be overruled. The
rule of the supremacy of the "doctor's conscience" finds no real support
in law. 13 7
130. 239 F. Supp. 752
(D. Conn. 1965)
131. Id.at 754.
132. 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964). See notes 110-15 supra and
133. 239 F. Supp. at 754.
134. See Plante, An Analysis of "Informed Consent," 36 Fordham L. Rev. 639 (1968).
135. See note 21 supra.
136. See Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985 (1971); Holmes
v. Silver Cross Hosp., 340 F. Supp.
125 (N.D. Ill. 1972
137. One would hope, on the other hand, that the ethics of medical practice remain life-oriented,
and that the day will not arrive when doctors are forced to destroy life.
Much more difficult is the problem raised by the court's reference to
"a course of treatment amounting to medical malpractice.' t 3 8 A doctor
is not bound to undertake treatment of a patient even in an
emergency. 139 Once treatment is undertaken, the doctor owes his patient
a duty of reasonable care, 140 which is breached by abandoning the
patient. 14 1 In Yetter, it will be recalled that Mrs. Yetter was confined in a
mental institution. The court mentioned as a factor in its decision that
"the present case does not involve a patient who sought medical attention
from a hospital and then attempted to restrict the institution and
physicians from rendering proper medical care."'1 4 2 But the involuntarily
confined are also owed a duty of reasonable medical care. 143 And they
may, if competent adults, reject medical treatment unless the demands of
institutional security require otherwise. 144 If the duty of care owed by the
medical profession to a competent adult patient, in combination with the
adult's subsequent rejection of treatment, creates a legal dilemma it is the
same dilemma whether the patient is involuntarily confined, or
voluntarily seeks medical aid, or is unconscious when brought to the hospital and
thereafter becomes lucid.
The dilemma arises in the following way. If unauthorized
treatment is administered, the patient has an action for battery or,
perhaps, for invasion of his constitutional rights. On the other hand, if
the doctor and the hospital fail to treat the patient, they may be civilly
liable for abandoning him. Further, a person under a duty to provide
medical treatment, whose unreasonable failure to do so causes death,
may also be criminally liable. 145 Taking the middle course is also
hazardous. The doctor and the hospital might subject themselves to a
claim of negligence were they to defer to patient wishes and refrain
from the forbidden treatment, for example, a blood transfusion, while
performing another procedure, surgery, which is rendered more
dangerous by the absence of the forbidden treatment, with consequent
ill effects to the patient. A release given by the patient in this situation
might be questioned on the ground that the patient was not competent
at the time, 14 6 or that the release does not protect against criminal
prosecution, 14 7 or that the release is against public policy. 148
The conclusions already reached can be of assistance in finding a
way out of the dilemma. Since a competent adult has a comprehensive
right to reject lifesaving treatment, the liability of the treating
institution and the responsible medical personnel is narrowly circumscribed.
If the patient rejects treatment entirely, the problem is simplified. His
instructions prevail provided that he is competent, or if he is not, that
the objections of others truly reflect his wishes and beliefs, so long as
there are no compelling state interests which outbalance the patient's
rights to the extent that coerced treatment is justified. If there be doubt
on these questions, the doctor and the hospital must seek judicial
direction on how to proceed in order to protect themselves against
liability. 149 Full disclosure must be made, with notice to next of kin
who have information on the patient's wishes, lest there be a question
of fraud upon the court. 150 Treatment will be administered or omitted
as the court directs, and the court's order protects the hospital and the
doctor from liability.15 1
Additional and more vexing problems arise when the patient bars
only part of the treatment. Must the doctor, on demand of his patient,
operate on a ruptured ulcer and, at the same time, withhold necessary
blood transfusions? It must be evident that neither a court nor a
patient can dictate treatment contrary to reasonable and good faith
medical judgment. Even in Roe v. Wade, the Court, while holding
abortion to be a fundamental right, agreed that "the abortion decision
and its effectuation must be left to the medical judgment of the
pregnant wonuzn's attending physician."1 5 2 Conversely, the general
rule is that the patient's rejection of reasonable treatment relieves the
doctor of liability for damages due to the failure to treat.15 3 In sum,
146. United States v. George, 239 F. Supp. 752
(D. Conn. 1965)
147. Application of Pres. & Dirs. of Georgetown College, Inc., 331 F.2d 1000, 1009 n.18
(D.C. Cir.), cert. denied, 377 U.S. 978 (1964).
148. Cf. 11 U.C.L.A.L. Rev. 639 (1964).
149. See Sharpe & Hargest, Lifesaving Treatment for Unwilling Patients, 36 Fordham L.
Rev. 695, 696-97 (1968) (discussing the doubtfully competent patient).
150. Holmes v. Silver Cross Hosp., 340 F. Supp. 125, 131 (N.D. I11. 1972).
151. W. Prosser, Torts § 18, at 102 (4th ed. 1971).
152. 410 U.S. at 164 (emphasis added). See note 31 supra.
153. Peterson v. Branton, 137 Minn. 74, 162 N.W. 895 (1917); Steele v. Woods, 327 S.W.2d
187, 196 (Mo. 1959).
the doctor cannot be forced to treat contrary to prudent medical
judgment and the patient is bound, at risk of relieving the doctor of
future liability, to accept reasonable medical treatment; it follows that
the doctor ought to be able to withdraw from the case without
liability. It has been held that a patient's refusal to follow the
reasonable instructions of his doctor is a defense to a claim of
What of the hospital's liability in these circumstances? The hospital's
duties are, in general, "to furnish the patient with diligent and skillful
care, competent attendants and safe equipment.' s Even if the
patient's doctor is not a hospital employee, the hospital may be liable to
the patient if aware of conduct by the doctor which is clearly
contradictory to normal practice.'5 6 But since the patient has rejected the
reasonable recommendations of a competent doctor, it cannot be said
that the hospital has breached any of these duties. However, if the
patient is in a precarious condition, he ought not be discharged by the
hospital lest the discharge become a contributing factor to subsequent
death or injury.' 5 7 The conclusion from all the above is that neither
the doctor nor the hospital is required to undertake a course of
treatment contrary to good medical judgment. The surgeon need not
operate on the bleeding ulcer if the patient rejects the necessary
But suppose the surgeon does operate? He may decide that because
the patient will certainly die without surgery, he ought to proceed even
without the transfusion. Under these circumstances the additional
risks must be explained to the patient. If the patient consents, he
assumes the risk. 15 8 If the patient becomes disoriented or unconscious
prior to the explanation being given, he cannot, of course, assume the
risk. As suggested above, doubts as to competency must be resolved
The medical dilemma is a real one only in so far as it requires
154. Roberts v. Woods, 206 F. Supp. 579, 584-85 (S.D. Ala. 1962). Indeed, the patient may
be deemed contributorily negligent for failing to follow instructions. 1 Louisell & Williams, supra
note 121, 9.03, at 246 n.25.
155. C. Kramer, Medical Malpractice 24-25
(rev. ed. 1965)
. In those jurisdictions which no
longer distinguish between "medical" and "administrative"acts of hospital employees, the hospital
will be liable for the malpractice of its employees undera respondeat superior theory. Id. at 23-44.
156. Fiorentino v. Wenger, 19 N.Y.2d 407, 414-15, 227 N.E.2d 296, 299-300, 280 N.Y.S.2d
373, 377-79 (1967).
157. C. Kramer, Medical Malpractice 25
(rev. ed. 1965)
. Patients, apparently in extremis,
have been known to recover even without the recommended treatment when the hospital
continues with indicated supportive treatment. See, e.g., In re Osborne, 294 A.2d 372, 376 n.6
(D.C. Ct. App. 1972).
158. 1 Louisell & Williams, supra note 121, 9.02 (1973).
judicial resolution of such possibly disputed questions as competency
or the existence of some overbalancing state interest, and only to the
extent that some courts yet fail to appreciate that a competent adult
has a right to reject lifesaving treatment, and that neither the doctor
nor the hospital is required by even a dying patient's choice to act
contrary to reasonable medical judgment.
In view of the numerous possibilities for liability, doctors and
hospitals will, and prudently should, continue to seek judicial
determination of their duties whenever a patient in precarious condition
refuses lifesaving treatment-with the possible exception of a
Martinez situation' 9 where honoring the patient's wishes is fairly
wellaccepted in principle and adhered to in practice. Criticism of the
medical profession for resorting to the courts 160 is unfair. If there is an
issue of competence the court is best equipped to resolve it. If the
patient's right to refuse treatment, and his willingness to sign a release,
render the controversy nonjusticiable for lack of any danger of
liability, let the court say so. 16 1
When all is said and done, the medical dilemma is a problem of
judicial fact-finding and resolution of doubts, not a substantive reason
for disregarding patient choice.
D. The State Interest in Protecting Minor Children
In Georgetown College, 162 the court gave as a further reason for
ordering the transfusion: "[t]he patient, 25 years old, was the mother
of a seven-month-old child. The state, as parens patriae, will not allow
a parent to abandon a child, and so it should not allow this most
ultimate of voluntary abandonments. The patient had a responsibility
mothTerh."u' s16,3 the people had an
to the community to care for her infant.
interest in preserving the life of this
One author found two separate alleged state interests in this
statement: (a) prevention of psychic harm to the child by loss of the parent
and (b) prevention of economic harm to the state by the child's
becoming a public charge. 164 It has been held that a pregnant woman
159. See notes 57-61 supra and accompanying text.
160. E.g., In re Nemser, 51 Misc. 2d 616, 273 N.Y.S.2d 624 (Sup. CL 1966).
161. See Application of Pres. & Dirs. of Georgetown College, Inc., 331 F.2d 1000, 1015
(D.C. Cir.) (Burger, J., dissenting on denial of rehearing), cert. denied, 377 U.S. 978 (1964).
Effective mechanisms are available for an expeditious and thorough inquiry and resolution. See,
e.g., In re Osborne, 294 A.2d 372 (D.C. Ct. App. 1972).
162. 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964). See notes 110-15 supra and
163. 331 F.2d at 1008.
164. Cantor, A Patient's Decision to Decline Life-Saving Medical Treatment: Bodily Integrity
Versus the Preservation of Life, 26 Rutgers L. Rev. 228, 251-54 (1973).
may be compelled to submit to a blood transfusion, contrary to her
religious beliefs, when the transfusion is necessary to perserve the life
of her unborn child. 165 In Yetter 166 and Brooks' 67 the courts were
careful to point out that no minor children were involved. In
George, 168 the court adopted Georgetown College.
Without disputing Georgetown College, a few courts have modified
it. It has been argued: "[a]t best the State's interest in preserving two
spouses to care for their children instead of one seems attenuated; one
wonders if it would be a stronger interest if a sole surviving parent's life
were at stake, so that public guardianship of the minors became an
imminent reality. '169
The state's interest is even more in doubt, it has been urged, when
the surviving parent is in accord with the patient's decision and willing
to provide for the child alone.1 70 Perhaps this reasoning persuaded a
court to decline to order lifesaving transfusions for a twenty-four year
old m6ther of three whose husband conveyed to the court the family's
religious objection to such treatment. 17 1
At least within these limitations it would seem that the "minor
child" interest of the state does limit the right of a competent adult to
reject lifesaving treatment. Whether the rule will survive remains to be
seen. It will, perhaps, be put to its ultimate test if the parens patriae
interest is asserted in a situation wherein it is the disability, rather
165. See Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Fordham L. Rev.
807, 844-49 (1973). It may be true that it is a quantum leap from this situation to Georgetown
College. It may also be true that the economic justification is somewhat undermined by a case
like Montgomery v. Board of Retirement, 33 Cal. App. 3d 447, 109 Cal. Rptr. 181 (5th Dist.
1973) wherein it was held that disability benefits may not be denied a recipient who refuses, for
religious reasons, to undergo corrective surgery. Finally, some might agree that the dangers of
psychic harm to the child and depletion of the public fisc are, respectively, speculative and de
minimis. Nevertheless, no court has directly taken issue with the Georgetown College parens
166. See notes 13-21 supra and accompanying text.
167. See notes 42-47 supra and accompanying text.
168. See notes 130-33 supra and accompanying text.
169. Sharpe & Hargest, Lifesaving Treatment for Unwilling Patients, 36 Fordham L. Rev.
695, 697 (1968).
170. 113 U. Pa. L. Rev. 290, 294 (1964).
171. See N.Y. Times, Nov. 14, 1968, at 23, col. 1. In In re Osborne, 294 A.2d 372 (D.C. Ct.
App. 1972), the court refused to order a transfusion of a thirty-four year old man whose wife
agreed with his decision and "who had, through material provision and family and spiritual
bonds, provided for the future well-being of his two children." Id. at 375. In Holmes v. Silver
Cross Hosp., 340 F. Supp. 125 (N.D. fI1. 1972), the court denied a motion to dismiss a
complaint for violation of constitutional rights in the administration of a blood transfusion under
color of law. The patient had a wife and young child, but "we presently do not have sufficient
information on the status of these dependents, whether their sole support came from the decedent
[patient] . . . ...Id. at 130.
than the death of the parent that is threatened, or where the unwilling
patient, asserting a religious objection to lifesaving treatment, does not
share the Jehovah's Witnesses' abhorrence of physical resistance to the
E. The State Interest in Protecting Public Health
Jacobsonv. Massachusetts17 2 involved a challenge to the validity of
a conviction under a state statute authorizing a fine for an adult who
"refuses or neglects" to be vaccinated as required by the statute. 17 3
The court found defendant's claim of an "inherent right of every
freeman to care for his own body"' 74 to be overbalanced by the
interest of the state in the protection of its inhabitants from a
dangerous, contagious disease. 175
The state interest in protecting the health of others in the
community clearly justifies compulsory medical procedures to neutralize the
danger of contagion from potential carriers of disease. In an unusual
case the treatment may also save the life of one already infected and in
danger of death. The purpose, however, is not to save the patient's life
but to prevent the spread of the disease. Very little controversy surrounds
the power of the state to compel lifesaving treatment in such cases.
F. The Five Models: In Sum
It would seem that only the state interests in the welfare of the
minor child, 17 6 and the protection of the public from communicable
disease' 7"7 may be said, with colorable legal basis, to impinge upon the
competent adult's freedom to reject lifesaving medical treatment. 178
This Article is not a morality play. By no means did I set out to
judge whether, in the scenario of a particular case, the patient's choice
to forego treatment was ethically defensible. I have attempted only to
172. 197 U.S. 11 (1905).
173. Id. at 12.
174. Id.at 26.
175. Id. at 24-31. "The right to practice religion freely does not include liberty to expose the
community ... to communicable disease ...." Prince v. Massachusetts, 321 U.S. 158, 166-67
(1944) (dictum). The state interest in preventing or arresting an epidemic must not, however, be
confused with unauthorized human experimentation on the victim of the disease.
176. See notes 162-71 supra and accompanying text.
177. See notes 172-75 supra and accompanying text.
178. In a particular disciplinary setting, such as jail custody, it is possible that patient choice
to forego lifesaving treatment might validly be subordinated to custodial authority. "Allegations
that prison medical personnel performed major surgical procedures upon the body of an inmate,
without his consent and over his known objections, that were not required to preserve his life or
further a compelling interest of imprisonment or prison security, may foreshadow proof of
conduct violative of rights under the Fourteenth Amendment sufficient to justify judgment under
the Civil Rights Act." Runnels v. Rosendale, 499 F.2d 733, 735 (9th Cir. 1974).
discover the law and its trends. From an examination of these I deduce
First: Every competent adult is free to reject lifesaving medical
treatment. This freedom is grounded, depending upon the patient's
claim, either on the right to determine what shall be done with one's
body or the right of free religious exercise-both fundamental rights in
the American scheme of personal liberty. There is no "zone of privacy"
Second: The patient's freedom of choice, like all fundamental
freedoms, may be subordinated to a compelling state interest at least when
there are no less drastic means available to effectuate the interest.
Third: Interference with the patient's right cannot be justified either
by a claimed state interest in preventing suicide or by a paternalistic
exercise of the police power. Rejection of lifesaving medical treatment,
except for injuries self-inflicted in an active attempt by an individual
to destroy his own life, is not an attempt at suicide. However, one
cannot extrapolate a right to commit suicide from the patient's freedom
to reject lifesaving medical treatment. For this reason alone it is
misleading to characterize the patient's freedom as a "right to die."
Fourth: The state has a parens patriae interest in protecting
incompetents. But the disorientation of a patient ought not be used as an
excuse to thwart his objection to, and rejection of, medical treatment.
Fifth: The "medical dilemma" is neither a substantive state interest
justifying coerced medical treatment nor a problem of balancing
conflicting personal rights. It is merely a matter of judicial resolution
of doubts on such issues as patient competency. Protection of the
medical community against liability requires that doctors and hospitals
have free access to the courts and expeditious direction on how to
proceed whenever a patient in precarious condition rejects lifesaving
treatment. But under no circumstances may medical personnel be
required to engage in procedures which are contradicted by reasonable
Sixth: In the present state of the law, lifesaving medical treatment
may be compelled to further governmental interests in preventing the
spread of communicable disease and in protecting the spiritual and
material welfare of minor children. As to the latter, it is possible that
the interest becomes attenuated when one parent would survive and is
willing to care for the child, or where the child's needs have otherwise
been provided for.
Reported cases on compulsory treatment are relatively rare.
Newspaper accounts of such cases are frequent enough to indicate that the
problem, if not pressing, at least requires clarification. Such has been
the end and aim of this Article.
of the Fourteenth Amendment ............................................... 215
Warranty a Federal Case ................................................... 273
EDELSTEIN , DAVID N. , The Ethics of Dilatory Motion Practice Time for Change... 1069
GERMAIN , KENNETH B. , Trademark Registration Under Sections 2(a) and 2(e) of the
Lanham Act: The Deception Decision........................................ 249
of 1934-Colby v. Klune Revisited .......................................... 489
JUDD , ORIN G., Conflicts of Interest-A Trial Judge's Notes ..................... 1097
KESSLER , ROBERT A., Private Placement Rules 146 and 240 - Safe Harbor? ........ 37
Policy in Iran............................................................. 701
the Securities and Exchange Commission .................................... 1113
the Marketplace of Ideas ................................................... 877
yers and Judges as a Conditionfor the Maintaining of Professional Licensing ... 1031
YoRio , EDWARD , The Revocability of Federal Tax Elections ....................... 463 9 . Schloendorff v. Society of the N.Y. Hosp., 211 N.Y. 125 , 129 - 30 , 105 N.E. 92 , 93 ( 1914 );
accord , Canterbury v. Spence , 464 F.2d 772 , 780 (D.C. Cir .), cert. denied, 409 U.S. 1064 ( 1972 );
Natanson v . Kline , 186 Kan. 393 , 406 - 07 , 350 P.2d 1093 , 1104 ( 1960 ); Mohr v . Williams , 95
Minn. 261 , 268 - 69 , 104 N.W. 12 , 14 - 15 ( 1905 ). 10 . See Union Pac. Ry. v. Botsford, 141 U.S. 250 , 251 ( 1891 ). 11 . 51 Misc. 2d 616 , 273 N.Y.S.2d 624 (Sup . CL 1966 ). 12 . Erickson is frequently and erroneously cited as authority for the proposition that a patient
was not critical. In so far as Erickson is concerned, that question remains open . 13 . 62 Pa. D. & C. 2d 619 ( C.P. , Northampton County Ct . 1973 ). 14 . Id. at 621 . 67. See W. LaFave & A. Scott , Criminal Law 568- 69 ( 1972 ). In New York and many states,
aiding and abetting a suicide or an attempt is a crime . E.g., N.Y. Penal Law §§ 120 .30, 120 .35,
125. 15 ( 3 ), 125 .25( 1 )(b) ( McKinney 1975 ) ; see W. LaFave & A . Scott, supra, at 570- 71 . 68 . See , e.g., Conn . Gen. Stat. Ann. § 53a - 18 ( 4 ) (Ann. 1972 ); N.Y. Penal Law § 35 . 10 ( 4 )
(McKinney 1975 ); Model Penal Code § 3 . 07 ( 5 ) ( 1962 ); Comment, Unauthorized Rendition of
Lifesaving Medical Treatment , 53 Calif. L. Rev. 860 , 869 ( 1965 ). 69 . Mikell , Is Suicide Murder?, 3 Colum. L. Rev . 379 ( 1903 ). "[A]s to the quality of the
and resolved in his mind before the act was done." Hales v . Petit, 75 Eng. Rep . 387 , 399 (C. B . 1562 ). 85 . "Psychiatric reports indicated the patient showed a lack of concern for life, and a
States v . George , 239 F. Supp . 752 , 753 (D. Conn . 1965 ). 86 . 75 Eng. Rep. 387 ( C.B . 1562 ). 87. Id.at 400 . 88 . "An executed person has indeed 'lost the right to have rights.' " Furman v . Georgia , 408
U.S. 238 , 290 ( 1972 ) (Brennan , J., concurring). At the other end of life, the contradiction has
been noted in actions brought by a child for "wrongful birth." See Gleitman v . Cosgrove , 49 N.J.
22 , 227 A.2d 689 ( 1967 ) ; Williams v . State , 18 N.Y.2d 481 , 223 N.E.2d 343 , 276 N.Y. S.2d 885
( 1966 ). 89. A. Henry & J. Short , Suicide and Homicide 13 (Free Press ed. 1964 ). 90. 75 Eng. Rep. at 400 . 91. See e.g., In re Weberlist, 79 Misc. 2d 753 , 757 , 360 N.Y.S.2d 783 , 787 (Sup. Ct. 1974 );
Long Island Jewish-Hillside Medical Center v. Levitt, 73 Misc. 2d 395 , 396 - 97 , 342 N.Y.S.2d
356 , 358 - 59 (Sup. Ct. 1973 ); Blackburn v . State , 23 Ohio St. 146 , 163 ( 1872 ). 92. Martin v. Commonwealth , 184 Va. 1009 , 37 S.E.2d 43 ( 1946 ). And this is so whether the
own lives? 93. Note, Unauthorized Rendition of Lifesaving Medical Treatment . 53 Calif. L. Rev. 860 ,
867 ( 1965 ); Note, Compulsory Medical Treatment and the Free Exercise of Religion , 42 Indiana
L.J. 386 , 399 - 401 ( 1967 ). 94. See Long Island Jewish-Hillside Medical Center v . Levitt, 73 Misc. 2d 395 , 342 N.Y.S.2d
356 (Sup . Ct. 1974 ). 95. 75 Eng. Rep. at 400. 96. 16 Writings of Thomas Jefferson 310 (Lipscomb & Bergh 1903 ). 97 . Commonwealth v. Mink , 123 Mass. 422 , 425 ( 1877 ). 98 . See Ford , Refusal of Blood Transfusions by Jehovah's Witnesses, 10 Catholic Law . 212 ,
225 ( 1964 ). 119 . See W. Nolen , The Making of a Surgeon 270 - 71 ( 1972 ). 120 . See id. at 271-72. 121 . 1 D. Louisell & H. Williams , Medical Malpractice 8.08 ( 1973 ) [hereinafter cited as
Louisell & Williams]. 122 . Survey , Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48
Notre Dame Law . 1202 , 1208 ( 1973 ). 123 . Editorial , When Do We Let the Patient Die?, 68 Annals of Internal Medicine 695 , 696 - 97
( 1968 ). 138 . 239 F. Supp . at 754. See Application of Pres. & Dirs . of Georgetown College, Inc., 331 F.2d
1000 , 1009 (D.C. Cir .), cert. denied, 377 U.S. 978 ( 1964 ); Collins v. Davis, 44 Misc. 2d 622 , 254
N.Y.S.2d 666 (Sup . Ct. 1964 ). 139 . Hurley v. Eddingfield , 156 Ind. 416 , 59 N.E. 1058 ( 1901 ). In the absence of statute or
regulation , e.g., N.Y. Pub . Health Law § 2805 - b (McKinney Supp . 1974 ), neither is a hospital,
treat those for whose benefit it has been established and who rely on its existence . Annot., 35
A.L.R. 3d 841 , 846 - 47 ( 1971 ). 140. See 1 Louisell & Williams, supra note 121 , 8.08. If there are no problems of charitable
immunity, the hospital may also be liable . C. Kramer, Medical Malpractice 21-27 (rev. ed. 1965). 141. 1 Louisell & Williams, supra note 121 , 8.08, at 217- 20 . 142 . In re Yetter, 62 Pa. D. & C.2d 619 , 623 (C.P. Northampton County Ct . 1973 ). See notes
13-21 supra and accompanying text. 143. Fischer v. City of Elmira, 75 Misc. 2d 510 , 347 N.Y.S.2d 770 (Sup . Ct. 1973 ) ; O'Neil v .
State , 66 Misc. 2d 936 , 323 N.Y.S.2d 56 (Ct . Cl. 1971 ). 144 . Runnels v. Rosendale , 499 F.2d 733 ( 9th Cir . 1974 ). 145 . Application of Pres. & Dirs . of Georgetown College, Inc., 331 F.2d 1000 , 1009 n.18
(D.C. Cir .), cert. denied, 377 U.S. 978 ( 1964 ). See Annot., 100 A.L.R. 2d 483 ( 1965 ).