Liability for life.

Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. (1) He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April 29, 1997, Dr. Klavan tried to kill himself. He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan had fallen into a persistent vegetative state. His family and his lawyer told the center about his notes and his advance directive. On May 4, the center "agreed to provide care in accordance with" the advance directive, but on May 5 Dr. Klavan's condition worsened and the center again resuscitated him. He "then suffered a stroke that rendered him mentally and physically incompetent." A suit was brought on Dr. Klavan's behalf in federal court. It claimed that his fourteenth amendment right to refuse medical treatment was being denied. The fourteenth amendment, however, restricts only governments, not private institutions. Had the government so deeply implicated itself in the center's activities that it had effectively become a governmental institution? The court thought not, leaving Dr. Klavan's representative only with state-law claims. The federal court had discretion to take jurisdiction of those claims, but it refused: "While Dr. Klavan's situation cries out for prompt and definitive judicial resolution, we nevertheless decline to exercise our discretion ... precisely because of the gravity of his case." How did this sad case reach this unsettling result? First, the story I have told may be false. (2) Klavan was decided before a trial could determine what had actually happened. To decide whether it had jurisdiction, the court accepted as true everything Dr. Klavan's representative had alleged. The court concluded that even if all the allegations were true, it should not grant the relief Dr. Klavan's representative sought. Therefore we have no idea what the medical center's defense was or how any factual disputes would have been resolved in a trial. (And even had there been a trial, we could not be sure of its conclusions.) More broadly, however, the Klavan court's reluctance to address the dispute was typical of the judicial reaction to the (uncommon) attempts to enforce living wills. Such attempts are of two kinds. First, people locked in a dispute about treating an incompetent patient can ask a court to settle the disagreement. In doing so, the court can look at the living will and any other relevant evidence. Second, after a patient dies, the family might sue to recover the damages the patient suffered became the living will was disobeyed. Why have courts not embraced either kind of litigation? In part, courts' hesitation to enforce living wills reflects a judicial aversion to disputes about treating the dying. Such disputes demand a speed courts can rarely attain. The patient has often died by the time lawyers have been consulted, non-legal solutions have been exhausted, a decision to litigate has been reached, and legal documents and evidence have been prepared. Just as bad is the "standards" problem: These decisions raise issues the law addresses too obscurely to guide courts. And given the complexity and perplexity of end-of-life decisions, more illuminating rules probably are impossible. So courts have acquiesced--tacitly and sometimes expressly--in relegating these decisions to an informal process in which doctors and families work toward a consensus that the time has come to let the patient die. Courts may be right to do so: Evidence is spotty, but it hints that patients' families are generally satisfied with this process and that their dissatisfactions would not be soothed by litigation. …