1 Rasmussen v. Flemming, 154 Ariz. 207, 211, 741 P.2d 674, 678 (1987).

2 The term “incompetent” refers to a patient who is incapable of personally making medical decisions. For a fuller discussion of the term, see Wanser, , The Physician's Responsibility Toward Hopelessly Ill Patients, 310 New Eng. J. Med. 955, 958-59 (1984)CrossRefGoogle Scholar.

3 In re Westchester County Med. Center, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988). The Court of Appeals is the highest appeals court in the New York court system. Because this case is popularly known under the title In re O'Connor, all references to this case hereinafter shall be to In re O'Connor.

4 See note 114 infra and accompanying text.

5 A slippery slope argument contends that a given decision, while “seemingly innocuous when taken in isolation, may yet lead to a future host of similar but increasingly pernicious [decisions] ….” Schauer, , Slippery Slopes, 99 Harv. L. Rev. 361, 361-62 (1985)CrossRefGoogle Scholar.

6 In re O'Connor, 72 N.Y.2d at 523-24, 531 N.E.2d at 608-09, 534 N.Y.S.2d at 888.

7 Id.

8 Id.

9 For a comprehensive treatment of informed consent, see T. Beaucham. & R. Faden, A Theory and History of Informed Consent (1985).

There are two major exceptions to the informed consent requirement. One is for emergencies, where consent is usually implied. See Canterbury v. Spence, 464 F.2d 772, 788 (D.C. Cir. 1972). Perhaps the physicians in the current case could have claimed an “emergency,” because imminent harm would have resulted from failure to treat. The other exception concerns physician statements that might dissuade patients from needed treatments because of fear or misunderstanding. See id. at 789.

10 The author uses “death-prolonging” to indicate treatment that is given to a patient who is not expected to regain the ability to interact with the environment in a meaningful way. “Life-sustaining” treatment is that used when a reasonable chance of recovery exists. “The medical treatment given to a terminal patient is frequently regarded as death-prolonging and measured by brief periods of time. In cases of a coma or permanent vegetative states, there is a sense that life has lost all quality.” In re Guardianship of Browning, 543 So. 2d 258, 269 (Fla. Dist. Ct. App. 1989). “Judge Johnson … said he had no right to interfere with Mr. McAfee's obvious belief that the ventilator that allowed him to breathe ‘is not prolonging his life, but is instead prolonging his death.’ “ N.Y. Times, Sept. 7, 1989, at A16, col. 1 (nat'l. ed.) (report of oral trial court decision in In re McAfee, No. D-70960 (Fulton, Ga. County Court 1989), appeal pending No. S89A0561 (Ga. Sup. Ct. Sept. 1989).

11 In re O'Connor, 72 N.Y.2d at 524, 531 N.E.2d at 609, 534 N.Y.S.2d at 889.

12 For an exploration of how physicians make clinical decisions, see Eisenberg, , Sociologic Influences on Decisionmaking by Clinicians, 90 Annals Of Internal Med. 957 (1979)CrossRefGoogle Scholar (claiming that the personality and moral beliefs of the clinician play a major role).

13 In re O'Connor, 72 N.Y.2d at 524, 531 N.E.2d at 609, 534 N.Y.S.2d at 889. For more on the role of hospital ethics committees, see Brennan, , Ethics Committees and Decisions to Limit Care: The Experience at Mass. General Hospital, 260 J. A.M.A. 803 (1988)CrossRefGoogle Scholar; Lo, , Behind Closed Doors: Promises and Pitfalls of Hospital Ethics Committees, 317 New Eng. J. Med. 46 (1987)CrossRefGoogle Scholar; Cohen, , The Operation of an Ethics Committee, 10 Critical Care 41 (1982)Google Scholar. Ethics committees are discussed at infra p. 27.

14 In re O'Connor, 72 N.Y.2d at 522, 531 N.E.2d at 608, 534 N.Y.S.2d at 887.

15 Id. at 534-35, 531 N.E.2d at 616, 534 N.Y.S.2d at 897.

16 Id. at 524, 531 N.E.2d at 609, 534 N.Y.S.2d at 889.

17 Id. at 527, 531 N.E.2d at 611, 534 N.Y.S.2d at 890.

18 See e.g., People v. Morales, 42 N.Y.2d 129, 134-35, 366 N.E.2d 248, 250-51, 397 N.Y.S.2d 587, 589-90 (1977).

19 This evidentiary issue is complicated by the circumstances of the O'Connor case. Because of the nature of the “dispute,” the appeal from the ruling of the trial court was heard in an expedited manner. No trial transcript was available to the court of appeals. Telephone interview with Wayne Specter, attorney for the respondents on appeal (June 25, 1989). This problem is not confined to Mrs. O'Connor's case. The same dispute is aired in Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988) (Blackmar, Higgens, J.J., dissenting), cert, granted sub nom. Cruzan v. Director of Missouri Dep't of Health, 109 S. Ct. 3240 (U.S.July 3, 1989) (No. 88-1503).

20 The legal system first dealt with persistent vegetative states in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976).

21 ’ In re O'Connor, 72 N.Y.2d at 543, 531 N.E.2d at 621, 534 N.Y.S.2d at 900 (Simons, J., dissenting).

22 Id.

23 Id.

24 Id. at 525-26, 531 N.E.2d at 609, 534 N.Y.S.2d at 889. Interestingly, the evidence in In re Guardianship of Browning, 543 So. 2d 258 (Fla. Dist. Ct. App. 1989), was just as muddled. A nurse testified that Mrs. Browning had attempted to speak, but a doctor testified that she did not respond to verbal stimuli, only to “tactile or painful stimuli.” Id. at 263.

25 In re O'Connor, 72 N.Y.2d at 533, 531 N.E.2d at 615, 534 N.Y.S.2d at 891.

26 For an alternative approach, see Browning, 543 So. 2d at 268 (“[B]y utilizing a balancing test, we do not force physicians to make fine distinctions in areas where diagnosis can be difficult.“). One could assert that Mrs. O'Connor's relatives, using so-called “substituted judgment” procedures, should have the power to decide her fate given the factual and medical uncertainty in her case. See id, at 259.

27 In re O'Connor, 72 N.Y.2d at 527, 531 N.E.2d at 609, 534 N.Y.S.2d at 890.

28 Id.

29 Id. at 526, 531 N.E.2d at 611, 534 N.Y.S.2d at 890.

30 Id. at 526-27, 532 N.E.2d at 611, 534 N.Y.S.2d at 890.

31 Id. at 527, 531 N.E.2d at 611, 534 N.Y.S.2d at 890.

32 Mrs. O'Connor's statements are similar to those found sufficient to justify cessation of treatment in McConnell v. Beverly Enter., 209 Conn. 692, 553 A.2d 596 (1989). Ms. McConnell, also a health care professional, had said “she never wanted to be a vegetable or a burden on her family.” Id. at 709, 553 A.2d at 605 (quoting Elisa Goodman's testimony).

33 There is a consensus among doctors, medical ethicists and the legal system that the distinction between medical treatment and artificially supplied nutrition and hydration is untenable. See, e.g.. In re Conroy, 98 N.J. 321, 372-73, 486 A.2d 1209, 1236 (1985) (arguing that “once one enters the realm of high-technology medical care it is hard to shed the emotional symbolism of food … [but] analytically, artificial feeding by means of a nasogastric tube or intravenous infusion can be seen as equivalent to artificial breathing by means of a respirator.“); Corbett v. D'Alessandro, 487 So. 2d 368, 371 (Fla. Dist. Ct. App. 1986) (“[W]e see no reason to differentiate between the multitude of artificial devices that may be available to prolong the moment of death.“); Lynn, & Childress, , Must Patients Always Be Given Food and Water?, 13 Hastings Center Rep. 17, 19-20 (Oct. 1983)CrossRefGoogle Scholar; Brennan, supra note 13, at 805.

34 See infra text accompanying note 47 (discussing the clear and convincing standard). For an example of a clear statement by a patient concerning the use of artificial food and hydration, see Elbaum v. Grace Plaza, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file).

35 See supra note 28; In re O'Connor, 72 N.Y.2d at 539, 531 N.E.2d at 619, 534 N.Y.S.2d at 900 (Simons, J., dissenting) (“The majority refuses to [implement Mrs. O'Connor's choice] because it holds her statements were too indefinite.“).

36 211 N.Y. 125, 105 N.E. 92 (1914).

37 Id. at 129-30, 105 N.E. at 93. The New York Legislature has reaffirmed the right of patients to dictate their medical treatment. N.Y. PUB. Health LAW §§ 2504, 2508-d (Consul. 1987); N.Y. Civ. PRAC. L. & R. § 4401 (Consul. 1987).

38 In re O'Connor, 72 N.Y.2d at 528-29, 531 N.E.2d at 612, 534 N.Y.S.2d at 886 (citing In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

39 In re Storar and In re Eichner were decided on the same day in the same opinion. 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

40 Id.

41 Id.

42 For a survey of cases examining the role of the family in decisionmaking for patients, see Comment, The Role of the Family in Medical Decisionmaking for Incompetent Adult Patients: A Historical Perspective and Case Analysis, 48 U. Pa. L. Rev. 539 (1987)Google Scholar.

43 For discussions of these standards, see Weinberg, , Whose Right Is It Anyway? 40 Hastings L.J. 119 (1988)Google ScholarPubMed; Merritt, , Equality for the Elderly Incompetent: A Proposal for a Dignified Death, 39 Stan. L. Rev. 698 (1987)CrossRefGoogle Scholar; A. Meisel, the Right to Die (1989); Morgan, & Harty-Golder, , Constitutional Development of Judicial Criteria in Right to Die Cases: From Brain Death to Persistent Vegetative State, 23 Wake Forest L. Rev. 721 (1988)Google Scholar.

44 See In re Conroy, 98 N.J. 321, 344-45, 48G A.2d 1209, 1221 (1985); see also Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

45 In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976).

46 In re Storar, 52 N.Y.2d at 372, 420 N.E.2d at 68, 438 N.Y.S.2d at 270.

47 Id. at 379, 420 N.E.2d at 72, 438 N.Y.S.2d at 274. As described by the court, the clear and convincing standard approaches the quantum of proof necessary to convict a criminal defendant, the “beyond a reasonable doubt” standard. Id. For another court's version of the clear and convincing evidence standard, see In re Guardianship of Browning, 543 So. 2d 258 (Fla. Dist. Ct. App. 1989). Browning articulates a more flexible understanding of the standard. First, strict rules of evidence need not apply in the informal proceedings the court describes for determining whether life-sustaining treatment should be utilized. Second, “clear and convincing evidence requires that the evidence … be credible; … distinctly remembered; … precise and explicit…. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Id. at 273 (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. Dist. Ct. App. 1983). Inconsistent evidence does not necessarily mean the clear and convincing standard is not met.

48 In re Storar, 52 N.Y.2d at 380, 420 N.E.2d at 72, 438 N.Y.S.2d at 274.

49 But see Elbaum v. Grace Plaza, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file) (finding that the patient's previous expressions were sufficiently “settled” to pass the demanding standards enunciated in In re O'Connor).

50 The O'Connor court is not the first to use evidentiary rules to mask imposition of its value preferences. Rules that exclude probitive evidence generally rely on strong policy justification:

Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. Rev. 563, 595 (1982).

51 In re Storar, 52 N.Y.2d at 380, 420 N.E.2d at 72, 438 N.Y.S.2d at 274.

52 Id. at 380, 420 N.E.2d at 72, 438 N.Y.S.2d at 274.

53 “A balancing test avoids fine distinctions in diagnosis and definition which are frequently indefensible. It also allows the courts to recognize the complexity of the human condition and medical, ethical, and technological advances which will surely occur in the future.” In re Guardianship of Browning, 543 So. 2d 258, 268 (Fla. Dist. Ct: App. 1989).

54 In re O'Connor, 72 N.Y.2d at 529, 531 N.E.2d at 612-13, 534 N.Y.S.2d at 892.

55 In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976), the catalyst for Brother Fox's statements on the issue, was decided in 1976. Brother Fox's case was decided in 1981, leaving less than five years for reflection. Mrs. O'Connor first discussed the matter in 1969 and reaffirmed her feelings in 1984, a period of fifteen years.

56 The court is concerned solely with objective manifestations of the patient's intent. See infra note 71 and accompanying text. Yet the court uses subjective factors to evaluate “objective” information. Its objective analysis focuses on what the court thinks Mrs. O'Connor would have wanted in these exact circumstances. The court seems to believe it can decide the question of her past statements. Because all statements require interpretation by the perceiver to understand, this approach is unrealistic. See Mootz, The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur, 68 B.U.L. Rev. 523, 527 (1988):

(emphasis in original).

57 In re O'Connor, 72 N.Y.2d at 532, 531 N.E.2d at 614, 534 N.Y.S.2d at 893.

58 Id.

59 See J. Ely, Democracy and Distrust 63-69 (1980).

60 One commentator has argued that subjective judgments should play an important part in these decisions. She claims that family members have better ability to make these decisions both on rational and emotional bases than courts or other possible decisionmakers. “Complete objectivity, however, is neither possible nor desirable, and its absence should not be seen as a problem.” See Rhoden, , Litigating Life and Death, 102 Harv. L. Rev. 375, 440 (1988)CrossRefGoogle Scholar.

61 See Olsen, , The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1500 (1983)CrossRefGoogle Scholar (“Rationality, discipline, and a focus on objective reality were considered desirable aspects of the ‘male’ sphere of the market.“); see also Leghorn, L. & Parker, K., Woman's Worth: Sexual Economics and the World of Woman 3, 4 (1981)Google Scholar (“[We] tend to understand and to categorize women's experiences only in male terms. These analyses totally disregard the major components of women's lives which men never share…. We must question and reevaluate all the institutions and concepts … men have defined … and develop a woman-centered perspective for attempting to understand women's lives ….“).

62 In re Storar, 52 N.Y.2d 363, 380, 420 N.E.2d 64, 72, 438 N.Y.S.2d 266, 274 (1981).

63 In re O'Connor, 72 N.Y.2d at 532, 531 N.E.2d at 614, 534 N.Y.S.2d at 893.

64 Because Mrs. O'Connor began making these statements in 1969, when she was in her mid-fifties, the logic of the court seems even more curious.

65 This unfortunately is more than sarcasm. For an articulation of the “monk standard”, see Elbaum v. Grace Plaza, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file) (“Although the individuals involved in the Matter of Storar and Matter of Delio v. Westchester County Med. Center cases had religious and medical vocations, respectively, which provided more numerous occasions upon which to reflect on this subject in a detached manner, we find … Mrs. Elbaum's statements … solemn pronouncements.“).

66 “A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 357 U.S. 449 (1958).

67 See Elbaum, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file).

68 In re O'Connor, 72 N.Y.2d at 532, 531 N.E.2d at 614, 534 N.Y.S.2d at 893 (stating that Mrs. O'Connor's statements were “no different than those that many of us might make after witnessing an agonizing death“).

69 Elbaum, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file). The trial court was reversed by the intermediate appellate court which found that Mrs. Elbaum's statements were not just reactions to unsettling events.

70 See In re Peter, 108 N.J. 365, 529 A.2d 419 (1987).

71 In re O'Connor, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S.2d at 892.

72 In re O'Connor, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S.2d at 892.

73 See Annas, , Precatory Prediction and Mindless Mimicry: The Case of Mary O'Connor, 18 Hastings Center Rep. 31 (1988)CrossRefGoogle Scholar (“[T]he notion that patients who are permanently incompetent and incapable of thought can nonetheless change their minds is a fiction worthy of only the most fantasy-affected lawyers.“).

74 Commentators have harshly criticized the difficulty of meeting this difficult legal standard. See Buchanan, , The Limits of Proxy Decisionmaking for Incompetents, 29 UCLA L. Rev. 386 (1981)Google Scholar; Dressler, , Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law, 28 Ariz. L. Rev. 373 (1986)Google Scholar; Rhoden, supra note 60.

75 Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

76 See Rhoden, supra note 60, at 386.

77 In re Storar, 52 N.Y.2d 363, 380, 420 N.E.2d 64, 73, 438 N.Y.S.2d 266, 275 (1981).

78 Amicus Curiae Brief for the Concern for Dying at 2, In re O'Connor, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988).

79 N.Y. Pub. Health Law § 29-b (McKinney Supp. 1989).

80 N.Y. Gen. Oblig. Law § 5-1602 (McKinney 1988).

81 On judicial review and democratic theory, see generally J. Ely, supra note 59.

82 For a complete list of state court cases since 1976 dealing with this subject, see Cruzan v. Harmon, 760 S.W.2d 408, 412 n.4 (Mo. 1989) (Blackmar, Higgins, J.J., dissenting), cert, granted sub nom. Cruzan v. Director of Missouri Dep't of Health, 109 S. Ct. 3240 (U.S. July 3, 1989) (No. 88-1503).

83 “Nearly unanimously those courts have found a way to allow persons wishing to die or those who seek the death of a ward to meet the end sought.” Id. at 413.

84 697 F. Supp. 580 (D.R.I. 1988).

85 See, e.g., In re Quinlan, 70 N.J. 60, 355 A.2d 647 (1976), cert, denied, 429 U.S. 922 (1976); Brophy v. New Eng. Sinai Hosp., 398 Mass. 417, 527 N.E.2d 626 (1986); In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987).

86 The Connecticut Supreme Court did just that in McConnell v. Beverly Enter., 209 Conn. 692, 553 A.2d 596 (1989). The court noted that the factual findings regarding the intent of the incompetent are challenged on appeal, but concluded “that the record supports the trial court's findings of fact ….” Id. at 707, 553 A.2d at 604.

87 In re O'Connor, 72 N.Y.2d at 542, 531 N.E.2d at 620, 534 N.Y.S.2d at 902 (Simons, J., dissenting).

88 Two queries are inherent in this argument. First, could the trial court or the court of appeals better judge the reliability of these statements? Second, would courts or Mrs. O'Connor's loved ones better effectuate what she would have wanted?

The concerns of ambiguity, memory perception and narration that give rise to the hearsay rule further support the trial court as the best forum for making the decision. See Tribe, , Triangulating Hearsay, 87 Harv. L. Rev. 957 (1974)CrossRefGoogle Scholar (assumption that the trial court generally is in the best position to judge these factors).

89 See R. Unger, the Critical Lecal Studies Movement 2 (1986) (“Objectivism is the belief that the authoritative legal materials … embody and sustain a defensible scheme of human association.“); see also Parker, , The Past of Constitutional Theory — And Its Future, 42 Ohio ST. L.J. 223 (1981)Google Scholar (stating that when process is determinative in a hard case, process itself becomes a substantive issue, requiring a substantive theory of rights).

90 See R. Unger, Social Theory: its Situation and its Task 151-69 (1987).

91 See Singer, , The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984)CrossRefGoogle Scholar. “Lawyers, judges and scholars make highly controversial political choices, but use the ideology of legal reasoning to make our institutions appear natural and our rules appear neutral…. [L]egal reasoning is a way of simultaneously articulating and masking political and moral commitment.” Id. at 5-6. “Issues that were only restricted to law school courses have in recent years come to define the contours of national political debate. In the public mind, law has evolved from a technical specialty … to a terrain for the struggle over public policy.” Boston Globe, Aug. 27, 1989 (Magazine), at 44, col. 1, 2.

92 R. Unger, supra note 89. The concurrence of Judge Hancock can best be described as emerging from false necessity. Unger uses this term to describe a judge who comes to a result that is contrary to her common sense and personal opinion because of precedent.

93 Many commentators have criticized the honesty of these cases. See, e.g., R. Burt, Taking Care of Strangers 149 (1979) (claiming that the suddenly competent incompetent is a judicial fiction that hides raw exercise of judicial discretion).

94 See Elbaum v. Grace Plaza, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file) (the family's consent to insertion of a gastrointestinal tube “was made under the threat of legal proceedings“).

95 For the balance of this Comment, the author will assume that the patient in question did not execute a writing sufficient to satisfy the requirements that the court articulates. See In re O'Connor, 72 N.Y.2d at 528 n.2, 531 N.E.2d at 612 n.2, 534 N.Y.S.2d at 891 n.2.

96 For instance, one academic has suggested that partnership theory presents a superior mode of analysis. See P. Ramsey, the Patient as Person 1-58 (1970) (the first section of this book pertains primarily to children). Robert Veatch has articulated four models of doctorpatient interaction: the engineering model, the collegial model, the priestly model and the contractual model. See R. Veatch, A Theory 0f Medical Ethics (1981).

For a repudiation of implied contract notions, see J.S. Mill, on Liberty (1859) (“[N]o good purpose is answered by inventing a contract in order to deduce social obligations from it …“). For yet another perspective, see Kushner, , Doctor-Patient Relationships in General Practice A Different Model, 7 J. Med. Ethics 128 (1981)CrossRefGoogle Scholar (choice of proper model depends on the interaction being examined).

Agency theory has also been used as an explanation of the scope of the doctor's authority over patient decisions. Restatement (Second) of Agency § 376 comment a (1958) characterizes an agent's authority as limited by the terms of the agreement between the principle and the agent. A thorough analysis of the complex power dynamics in therapeutic relationships can be found in Childress, Metaphors and Models of Medical Relationships, 8 Soc. Resp: Journalism L. Med. 47 (1982)Google Scholar.

97 See J. Childress, Who Should Decide? Paternalism in Health Care (1982) (discussing types of paternalism in the doctor-patient relationship, and limits of paternalist thinking).

98 Code of Ethics ch. 1 art. 1 § 4 (American Med. Ass'n 1847), quoted in J. Katz, The Silent World of Doctor and Patient 20 (1984).

99 See Pratt v. Davis, 118 Ill. App. 161, 166 (1905):

See also Hawkins v. McGee, 84 N.H. 114, 146 A. 641. The leading case on informed consent continues to be Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).

100 See J. katz, supra note 98, at 28.

101 Id.

102 See infra notes 134-43 and accompanying text.

103 Shultz, , Protecting Patient Choice, 95 Yale L.J. 219, 223 (1985)CrossRefGoogle Scholar (“[T]he agreement between the physician and his patient is contractual in nature ….” (quoting Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966))).

104 For a controversial position that takes the contractual model to its (perhaps absurd) limits, see Epstein, , Medical Malpractice: The Case for Contract, 1 Am. B. Found. Res. J. 87 (1976)CrossRefGoogle Scholar; Epstein, , Medical Malpractice, Imperfect Information and the Contractual Foundation for Medical Services, 49 Law & Contemp. Probs. 201 (1986)CrossRefGoogle Scholar.

105 Indeed, contractual language has permeated the ethical debate on autonomy:

E. Pellegrino, Humanism and the Physician 148 (1979).

106 See infra notes 107, 108.

107 See, e.g., Childs v. Weis, 440 S.W.2d 104 (Tex. Civ. App. 1969).

108 For a general discussion of the contractual physician-patient relationship, see A. Southwick & G. Sidel, The Law of Hospital and Health Care Administration 91-111 (1978).

109 On the duty to treat in an emergency, see Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (1980); Wilmington Gen. Hosp. v. Manlove, 54 Del. 15, 174 A.2d 135 (1961).

110 For a general examination of contract theory, see Llewellyn, , At What Price Contract? - An Essay in Perspective, 40 Yale L.J. 704 (1931)CrossRefGoogle Scholar; cf. Hoffman v. Red Owl Stores Inc., 26 Wis. 2d 683, 133 N.W.2d 267 (1965) (finding an implied contract between parties based on reliance generated by negotiations).

111 But see Mensch, , Freedom of Contract as Ideology (Book Review), 33 Stan. L. Rev. 753 (1981)CrossRefGoogle Scholar.

112 There are few cases which discuss the disparity of bargaining power in the doctorpatient relationship. However, an analogy can be drawn using the more commonly under stood landlord-tenant relationship. Often, landlords will coerce tenants into terms that tenants would not agree to if they were as sophisticated and powerful as landlords — or if the scarcity of affordable housing did not distort the market, making true negotiation impossible. In these cases contract law may intervene, either to add a term to the agreement between the parties, or to void the contract. Courts use concepts such as “public policy” or “unequal bargaining power” to justify such paternalistic intervention. See, e.g., R. Cunningham. W. Stoebuck & D. Whitman, The Law of Property 313-21 (1984).

113 See, e.g., Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (1963).

114 See Kennedy, supra note 50, at 591.

115 Therapeutic relationships might have different levels of voluntariness. A patient shot outside a hospital emergency room is not going to have much choice over which surgeon removes the bullet. The situation is quite different for the person choosing a plastic surgeon to perform a nose job. One reason why theoretical analysis of the therapeutic relationship is so difficult is precisely because it is not a fungible relationship.

In the case of Mary O'Connor, the amount of discretion exercised in her selection of caretakers is unknown. The record indicates, however, that a premeditated choice was made by Mrs. O'Connor (or her sister) in selecting a nursing home associated with Westchester County Medical Center. Thus, her later transfer to that facility was not accidental.

116 While the duty of informed consent generally arises in the tort context, contract law is better suited for analyzing such intentional relationships. See, e.g., Depenbrok v. Kaiser Found. Health Plan, Inc., 79 Cal. App. 3d 167, 144 Cal. Rptr. 724 (1978) (finding liability for breach of promise by doctors that tubal ligation would prevent pregnancy).

117 R. Faden & T. Beauchamp, supra note 9.

118 In re O'Connor, 72 N.Y.2d at 540, 531 N.E.2d at 619, 534 N.Y.S.2d at 898 (Simons, J., dissenting); see also Elbaum v. Grace Plaza, No. 2503E (N.Y. App. Div. Aug. 11, 1989) (Lexis, States library, N.Y. file).

119 In considering the court's concerns about “changing minds,” the decision could be read as voiding statutorily sanctioned springing powers of attorney. If the Court worries that a person might want to retract verbal statements, one could argue that the formation of a written statement is insufficient to guard against the same concern.

120 Some maintain that doctors are coerced by patients who utilize their awareness of legal causes of action involving informed consent, battery and criminal law sanctions. Many courts consider the integrity of medical ethics as a factor in balancing the interests in continuing treatment against the right of the patient to refuse life-sustaining treatment. Most courts rule that the autonomy of the patient outweighs third party interests. See Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988) (ordering that a hospital withhold life-sustaining treatment over the doctor's ethical objections if no other hospital could be found to honor the patient's request).

121 For a general description of the “at will” rule regarding employment contracts, see Forrer v. Sears, Roebuck & Co., 36 Wis. 2d 388, 153 N.W.2d 587 (1967); 56 C.J.S. Master and Servant § 8 (1948).

122 This Case Comment does not specifically discuss the utilitarian aspects of this issue. A case can be made that scarce health care dollars are better spent on prenatal care for the poor, drug treatment for addicts or AIDS education, than for keeping people like Mrs. O'Connor on artificial life-support. These utilitarian arguments, however, have serious problems, as they necessitate judgments about the value assigned to different lives. For one attempt at navigation of these difficult waters, see Brody, Wholehearted and Halfhearted Care: National Policies vs. Individual Choice, in Ethical Dimensions of Geriatric Care 79-93 (S. Spicker ed. 1987).

123 For an overview of problems in protecting nursing home residents, see S.Johnson, N. Terry & M. Wolff, Nursing Homes and the Law: Stat. Regulation and Private Litigation (1985); Kemanis, , A Critical Evaluation of the Federal Role in Nursing Home Quality Enforcement, 51 U. Colo. L. Rev. 607 (1980)Google Scholar; Nemore, Protecting Nursing Home Residents, Trial, Dec. 1985, at 54.

124 Furrow, B., Johnson, S., Jost, T. & Schwartz, R., Health Law 324 (1987)Google Scholar.

125 In re O'Connor, 72 N.Y.2d at 543, 531 N.E.2d at 621, 534 N.Y.S.2d at 900.

126 See United States v. Caroleen Products Co., 304 U.S. 144, 152-53 n.4 (1938).

127 “[T]he sole end for which mankind are warranted … in interfering with the liberty of action of any of their number is self protection…. The only part of the conduct of any one for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.” J.S. Mill, supra note 89, at 9.

128 197 U.S. 11 (1905).

129 “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own … property regardless of the injury that may be done to others.” Id. at 26.

130 Id. at 26-27.

131 See Morgan & Harty-Golder, supra note 43, at 732:

132 This premise is challenged by extreme cases like Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977). In such cases, a court appointed guardian adopts the interests of the patient, essentially filling the shoes of the absent, nonexistent or possibly self-interested family. In this narrow category of cases, caution is appropriate.

133 “While a circuit court is certainly an adequate forum in which to … make a studied decision … we believe the guardian can typically make this decision outside the circuit court and without judicial review.” In re Guardianship of Browning, 543 So. 2d 258, 271 (Fla. Dist. Ct. App. 1989).

134 See, e.g., A. Meisel, supra note 43, at § 15.7. Prof. Meisel's work is the most up to date treatise discussing ethics committees specifically, as well as the full range of issues surrounding the cessation of life-sustaining treatment.

135 See, e.g., Saikewicz, 373 Mass. at 757-59, 370 N.E.2d at 434; but see In re Quinlan, 70 N.J. 10, 49-51, 355 A.2d 647, 668-69 (1976).

136 See, e.g., Annas, , Reconciling Quinlin and Saikewicz: Decision Making for the Terminally Ill Incompetent, 4 Am. J.L. & Med. 367, 378-79 (1979)Google Scholar (ethics committees do not really decide “ethical” issues, but confirm the diagnosis of the treating physician); see also Annas, , Ethics Committees in Neonatal Care: Substantive Protection or Procedural Diversion, 74 Am. J. Pub. Health 843 (1984)CrossRefGoogle ScholarPubMed.

137 Saikewicz, 373 Mass. at 758, 370 N.E.2d at 434.

138 78 A.D.2d 1013, 434 N.Y.S.2d 46 (1980) (Cardamone, J., dissenting), rev'd, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

139 See, e.g., Browning, 543 So. 2d 258, 269. The issue of privacy in refusal of treatment cases was also highlighted in In re McAfee, where “[t]he [trial] judge apologized from the bench today for forcing the family [of Mr. McAfee] to endure such a private tragedy in a public forum ….” N.Y. Times, Sept. 7, 1989, at A16, col. 1 (nat'l ed.).

140 See J. Katz, supra note 98.

141 One commentator believes that a system utilizing patient advocates is superior to ethics committees as a mechanism for resolving conflicts between patients and doctors: “It should be stressed, however, that perhaps 90% of all treatment conflicts are resolvable … in a team meeting in which all the caregivers … and all family discuss … the case … and their reasons for differing ….”. G. Annas, the Rights of Patients 268 (1989).

142 See, e.g., Hunt, , Are They Taking the Peer out of Peer Review?, 59 Med. Economist 183 (1982)Google Scholar; Mihalski, , The New Era of Utilization and Quality Control: Professional Review Organizations, 60 Bull. N.Y. Acad. Med. 48 (Jan./Feb. 1984)Google Scholar.

143 See supra note 96.

144 In re Conroy, 98 N.J. 321, 343, 486 A.2d 1209, 1220 (1985).

145 The most comprehensive proposal of this type is developed in Rhoden, supra note 60. Like Rhoden, the author would argue for a broad definition of family which would include, for example, the lover of a gay patient. Id. at 439 n.280.

146 Rhoden stated, however, that “[i]deally, the decision should be based as much as possible upon what the patient would have wanted, assuming that she was previously competent.” Id. at 440.

147 In re O'Connor, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S.2d at 892.

148 “The foundation of [the] right to refuse medical treatment is based upon the individual's right to self-determination.” In re Guardianship of Browning, 543 So. 2d 258, 266 (Fla. Dist. Ct. App. 1989).

149 Rhoden, supra note 60, at 437-45.

150 See supra notes 95-133 and accompanying text.

151 See supra note 36 and accompanying text.

152 See supra notes 79, 80 and accompanying text.

153 “ The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions ‘of the sanctity of a man's home and the privacies of life.’ “ Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (footnote omitted).

154 See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986); Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989). This leadership would not be unnecessary judicial activism. Americans demand a strong right to privacy, and see the court's role as enforcing this right. Only 23% of Americans in a recent poll believe the court was usurping the power of legislatures in an illegitimate way. Boston Globe, Aug. 27, 1989 (Magazine), at 28, col. 1. Most commentators attribute the failure of the Supreme Court nomination of Robert Bork to his lack of support for a strong right to privacy. Id. “Privacy as an overarching concept gave [Bork's opponents] a chance to talk about control, as in choice and integrity of the home…. [This] was especially effective in the south.” Id. Another poll conducted after Bork's failed nomination showed most Americans would oppose any nominee who did not support the right to privacy. Id. at 43, col. 1.

155 See e.g., Griswold, 381 U.S. at 479; Roe v. Wade, 410 U.S. 113 (1973); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (in the context of a statute regulating family living arrangements, the Court stated that “[w]hen a city undertakes such intrusive regulation of the family … the usual judicial deference to the legislature is inappropriate.“); Zablocki v. Redhail, 434 U.S. 374 (1978) (fundamental right to marry); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“This Court has frequently emphasized the importance of the family.“).

156 “[I]n other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold, 381 U.S. at 483.

157 State action, a prerequisite for constitutional scrutiny, is implied from the state's role in licensing and regulating hospitals and physicians. See, e.g., Rasmussen v. Fleming, 154 Ariz. 200, 215 n.9, 741 P.2d 674, 682 n.9 (1987).

158 “There should be, therefore, great resistance to expand the substantive reach of [the due process] Clauses [of the fifth and fourteenth amendments], particularly if it requires redefining the category of rights deemed to be fundamental.” Bowers, 478 U.S. at 195.

159 “In determining which rights are fundamental, judges … must look to the ‘traditions and [collective] conscience of our people’ to determine whether a principle is ‘so rooted [there] … as to be ranked as fundamental.’ “ Griswold, 381 U.S. at 493 (Goldberg, J., concurring) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). Derivation of a fundamental right from historical practice is fairly common. In Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), then Chief Justice Burger demonstrated this methodology. In a case concerning access of the public to criminal trials, the Chief Justice stated that “[such access] has long been recognized as an indispensible attribute of a … trial.” Id. at 569. Such a right, therefore, “is implicit in the guarantees of the 1st Amendment.” Id. at 580. In his concurrence, Justice Brennan stated that “the case for … access has special force when drawn from an enduring and vital tradition…. Such a tradition commands respect in part because the Constitution carries the gloss of history.” Id. at 589.

If the right to refuse treatment for patients in circumstances like Mrs. O'Connor's was recognized as fundamental, “a compelling governmental interest …” and practices “narrowly tailored to serve that interest…” would be required to force treatment upon an unwilling patient. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 607 (1982). As argued above, it is difficult to imagine a state interest compelling enough to meet this demanding standard when the issue is forced continuance of one hopelessly ill patient's medical treatment.

“In family cases, the Court has consistently turned to tradition as a source of previously unrecognized aspects of liberty protected by the due process clauses… . [R]ecourse to traditional values enables the Court to afford constitutional protection to rights Americans traditionally have assumed to be part of our nation's scheme of liberty.” Note, Developments in the Law — The Constitution and the Family, 93 Harv. L. Rev. 1156, 1177, 1186 (1980).

160 Palko v. Connecticut, 302 U.S. 319 (1937). For early judicial recognition of the rights of bodily integrity and personal autonomy, see Union Pacific Ry. Co. v. Botsford, 141 U.S. 250-52 (1891) (ruling that at common law, the most sacred of rights was that of “the possession and control of [an individual's] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law … the right to one's person may be said to be a right of complete immunity, to be let alone.“) (footnote omitted); Pratt v. Davis, 118 111. App. 161, 79 N.E. 562 (1906); Schloendorffv. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914).

161 760 S.W.2d 408 (Mo. 1988), cert, granted sub nom. Cruzan v. Director of Missouri Dep't of Health, 109 S. Ct. 3240 (U.S. July 3, 1989) (No. 88-1503).

162 See, e.g., Morgan & Harty-Golder, supra note 43, at 725 (“The right to die is a fundamental inherent natural right … not subject to state modification.“).

163 See, e.g., Delio v. Westchester County Med. Center, 129 A.D.2d 1, 22-24, 516 N.Y.S.2d 677, 691-92 (1987) (stating that a patient in a persistent vegetative state has no life for the state to protect in the usual sense); Brophy v. New Eng. Sinai Hosp. Inc., 398 Mass. 417, 445, 527 N.E.2d 626, 642 (1986) (Lynch, J., dissenting in part) (“[T]he Saikewicz ‘balancing test’ is all but chimerical once it has been discerned what the individuals's choice would be.“).

164 The four state interests that must be weighed against the right of a patient to refuse life-sustaining treatment are: the preservation of life, the prevention of suicide, the protection of third parties and the ethical integrity of the medical profession. See, e.g.. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 740, 370 N.E.2d 417, 425 (1977); see also Saltz v. Pearlmutter 362 So. 2d 160, 162 (Fla. Dist. Ct. App. 1978). For a thorough discussion of these interests as balanced by different courts, see A. Meisel, supra note 43, at § 4.12-16.

165 In re President of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964); see also In re Brook's Estate, 32 Ill. 2d 361, 205 N.E.2d 435 (1965); In re Osborne, 294 A.2d 372 (D.C. App. 1972); Capron, , Borrowed Lessons: The Rule of Ethical Distinctions in Framing Law on Life-Sustaining Treatment, 1984 Ariz. ST. L.J. 647Google Scholar.

166 See Brennan, & Delgado, , Death: Multiple Definitions or a Single Standard?, 54 S. Cal. L. Rev. 1323, 1327-28 (1981)Google ScholarPubMed.

167 ‘[T]he constitutional shelter afforded [family] relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others… . Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares … personal aspects of ones life.” Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984).

168 “[The] liberty guaranteed by the Due Process Clause is not a series of isolated points [represented by the Bill of Rights]. It is a rational continuum which, broadly speaking, includes freedoms from all arbitrary impositions and purposeless restraints … .” Poe v. Ullman, 367 U.S. 497, 543 (1960).

169 “[P]recisely what is involved here is this: the State is asserting the right to enforce its own moral judgment upon the most intimate details of the marital relation ….” Id. at 548.

170 “The structure of marriage and kinship [ensures] a socialization process and an attitute toward personal obligation that maximizes democracy's interest in the voluntary ‘public virtue’ of its citizens; by maintaining marriage and kinship as legally recognizable structures that mediate between the individual and the State, thereby limiting governmental power; and by maintaining sources of objective jurisprudence that will ensure stable personal expectations … thereby minimizing the arbitrary power of the State. In these ways, the structure of formal family life emphasizes that sense of ‘ordered liberty’ necessary to achieve individual liberty as a long range objective.” Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy — Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463, 559 (1983)CrossRefGoogle Scholar; see also Palko v. Connecticut, 302 U.S. 317, 325 (1937).

171 Because the medical profession has not achieved perfection in diagnosis of patients, legal decisionmaking has been complicated. See, e.g., N.Y. Times, Apr, 13, 1989, at B3, col. 5; Steinbock, , Recovery from Persistent Vegetative State? The Case of Carrie Coons, 19 Hastings Center Rep. 14 (1989)CrossRefGoogle Scholar.