Commentary: Anxieties as a Legal Impediment to the Doctor-Proxy Relationship

See Sabatino C.P. , “The Legal and Functional Status of the Medical Proxy: Suggestions for Statutory Reform,” Journal of Law, Medicine & Ethics, 27 (1999): 52–68.

Regarding physicians' misperceptions about legal standards of care, see, for example, Liang B.A. , “Assessing Medical Malpractice Jury Verdicts: A Case Study of an Anesthesiology Department,” Cornell Journal of Law and Public Policy, 7 (1997): 121–64.

See, for example, Schneiderman L.J. and Teetzel H. , “Who Decides Who Decides? When Disagreement Occurs Between the Physician and the Patient's Appointed Proxy About the Patient's Decision-Making Capacity,” Archives of Internal Medicine, 155 (1995): 793–96; and Hanson L.C. , “Impact of Patient Incompetence on Decisions to Use of Withhold Life-Sustaining Treatment,” American Journal of Medicine, 97 (1994): 235–41.

See Kapp M.B. , “Liability Issues and Assessment of Decision-Making Capability in Nursing Home Patients,” American Journal of Medicine, 89 (1990): 639–42.

See Schmidt W.C. Jr. , Guardianship: The Court of Last Resort for the Elderly and Disabled (Durham: Carolina Academic Press, 1995); and Annas G.J. and Densberger J. , “Competence to Refuse Medical Treatment: Autonomy Versus Paternalism,” University of Toledo Law Review, 15 (1984): 561–96.

See, for example, Molloy D.W. , “Decision Making in the Incompetent Elderly: The Daughter from California Syndrome,” Journal of the American Geriatrics Society, 39 (1991): 396–99.

Fowkes B. , Letter, “The Right to Die,” Newsweek, Sept. 19, 1994, at 16 (emphasis added).

See Watts D.T. , “The Family's Will or the Living Will: Patient Self-Determination in Doubt,” Journal of the American Geriatrics Society, 40 (1992): 533–34; and Ely J. , “The Physician's Decisions to Use Tube Feedings: The Role of the Family, the Living Will, and the Cruzan Decision,” Journal of the American Geriatrics Society, 40 (1992): 471–75.

End of Life Issues and Implementation of Advance Directives Under Health Care Reform: Hearings Before the Senate Comm. on Finance, 103d Cong. 43 (1994) (testimony of Christine K. Cassel, M.D., Chair, Department of Geriatrics, Mount Sinai School of Medicine).

See Gilligan T. and Raffin T.A. , “Whose Death Is It, Anyway?,” Annals of Internal Medicine, 126 (1996): 137–41.

See, for example, Daar J.F. , “Medical Futility and Implications for Physician Autonomy,” American Journal of Law & Medicine, 21 (1995): 221–40.

Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (1990).

For example, In re Wanglie, No. PX-283 (Minn. Dist. Ct. 1991); In re Jane Doe, 418 S.E.2d 3 (Ga. 1992), In re Doe, C.A. No. D-93064 (Ga. Super. Ct. 1991); and Duensing v. Southwest Texas Medical Hospital, No. SA-CA-1119 (WD. Tex. 1988). See also Capron A.M. , “Baby Ryan and Virtual Futility,” Hastings Center Report, 25, no. 2 (1995): 20–21.

See, for example, Annas G.J. , “Asking the Courts to Set the Standard of Emergency Care—The Case of Baby K,” N. Engl. J. Med., 330 (1994): 1542–45.

In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994).

Fronduti R.A. , Letter, “Do Everything,” Annals of Internal Medicine, 121 (1994): at 900.

See, for example, Orentlicher D. , “Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick,” Harvard Civil Rights-Civil Liberties Law Review, 31 (1996): 49–87.

Peters P.G. Jr. , “When Physicians Balk at Futile Care: Implications of the Disability Rights Law,” Northwestern University Law Review, 91 (1997): at 841.

See 28 C.F.R. § 35.130(e) (1999).

See id.

See Kayser-Jones J. and Kapp M.B. , “Advocacy for the Mentally Impaired Elderly: A Case Study Analysis,” American Journal of Law & Medicine, 14 (1989): 353–76.

See Simpson K. , “Health Care Surrogate Laws,” N. Engl. J. Med., 328 (1993): 1200.

See Fulton G.B. , “The Non-Declarant in a PVS: Adventures in Ohio's Legal Wonderland,” Ohio Northern Law Review, 20 (1994): 571–95.

See Kapp M.B. , “State Statutes Limiting Advance Directives: Death Warrants or Life Sentences?,” Journal of the American Geriatrics Society, 40 (1992): 722–26.

Fulton , supra note 23, at 581.

Compare this approach with that exhibited by the Supreme Court of Wisconsin. See In the Matter of Edna M.F. v. Eisenberg, 210 Wis. 2d 557, 563 N.W2d 485 (1997) (holding that, if an incompetent patient is not in a persistent vegetative state, maximally aggressive medical interventions may not be discontinued in the absence of an advance directive or other specific prior statement of the patient's wishes under the precise circumstances).

Fulton supra note 23, at 595. A description of this sort of problem has also been presented from the perspective of a patient's daughter. See Hansot E. , “A Letter from a Patient's Daughter,” Annals of Internal Medicine, 125 (1996): 149–51.

See Meisel A. , “The ‘Right to Die’: A Case Study in American Lawmaking,” European Journal of Health Law, 3 (1996): at 68–69.

But see Kessler D.P. and McClellan M.B. , “The Effects of Malpractice Pressure and Liability Reforms on Physicians' Perceptions of Medical Care,” Law and Contemporary Problems, 60 (1997): at 105 (emphasis added) (claiming “that law reforms affect physicians' attitudes, both by reducing the probability of an encounter with the liability system, and by changing the nature of the experience of being sued for those physicians who defend against malpractice claims.”)

See generally Wexler D.B. and Winick B.J. , eds., Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham: Carolina Academic Press, 1996).

Cf. Symposium, “Lies, Damn Lies and Statistics: How Empirical Research Shapes Health Law and Policy,” Indiana Law Review, 31 (1998): 9–142.