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Legal Criteria for Orders Not to Resuscitate: A Response to Justice Liacos

Published online by Cambridge University Press:  01 January 2021

John Robertson
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Extract

Justice Liacos's comments on the Saikewicz decision should end much of the debate that has swirled around the scope of this landmark case, and I commend MEDICOLEGAL NEWS or publishing his remarks. However, two aspects of the article deserve further comment.

First, it seems unfair to criticize lawyers for not immediately reading the case the way Justice Liacos now says it should have been read. While the opinion in Saikewicz is reasonably clear about the substantive rights of incompetent patients, it is imprecise about the procedures to be followed in implementing those rights. For example, in discussing the role of the probate court in such cases, the broad language used in the decision could be read as requiring a judge to review all treatment decisions involving incompetent patients.

Type
Article
Information
Medicolegal News , Volume 8 , Issue 1 , February 1980 , pp. 4 - 26
Copyright
Copyright © American Society of Law, Medicine and Ethics 1980

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Footnotes

This comment is a response to an article by Justice Paul Liacos of the Massachusetrs Supreme Judicial Court, entitled Dilemmas of Dying, which appeared in MEDICOLEGAL NEWS, vol. 7, no. 3 (Summer 1979).

References

Liacos, P.J., Dilemmas of Dying, Medicolegal News 7(3):4 (Fall 1979) [hereinafter referred to as Dilemmas of Dying].CrossRefGoogle ScholarPubMed
Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 432 (Mass. 1977).Google Scholar
Id. at 434.Google Scholar
In re Quinlan, 355 A.2d 647 (N.J. 1976).Google Scholar
See Annas, G.J., Reconciling Quinlan and Saikewicz: Decision Making for the Terminally Ill Incompetent, American Journal of Law & Medicine 4(4):367 (Winter 1979) [hereinafter referred to as Reconciling Quinlan and Saikewicz]: Glantz, L. and Swazey, J., Decisions Not to Treat: The Saikewicz Case And Its Aftermath, Forum on Medicine 2(1): 22 (January 1979).Google ScholarPubMed
Of course not all lawyer reactions were reasonable interpretations of ambiguities in the case. See Reconciling Quinlan and Saikewicz, note 5 supra, at 387, n.5; Annas, G.J., Where Are the Health Lawyers When We Need Them? Medicolegal News 6(2):3 (Summer 1978).CrossRefGoogle Scholar
Baron, C.H., Medical Paternalism and the Rule of the Law: A Reply to Dr. Relman, American Journal of Law & Medicine 4(4):337 (Winter 1979).Google ScholarPubMed
In re Dinnerstein, 380 N.E.2d 134 (Mass. App. 1978).Google Scholar
Dilemmas of Dying, note 1 supra, at 7.Google Scholar
Dilemmas of Dying, note 1 supra, at 6. At another point, Justice Liacos states: “For anyone to advise hospitals that a DNR … could not be instituted and that a person who was terminally ill had to be resuscitated time and time again absent legal and judicial determination is an entirely misleading interpretation of the Saikewicz opinion.”Google Scholar
Dilemmas of Dying, note 1 supra, at 6.Google Scholar
In the Matter of Earle N. Spring (Mass. App, Ct. F–79–570, November 1979) shows the errors that doctors, families, and even reviewing courts can make in applying the substituted judgment test.Google Scholar