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  • The Role of Litigation in End of Life Care:A Reappraisal
  • Alan Meisel

We live in a society permeated by litigation. That this is so hardly needs mention; there are reminders all around us. It sometimes seems, however, that we have lost sight of the limits of litigation as an instrument of change—both social change and individual change. Lessons abound of litigation that has not brought about the anticipated benefits—school desegregation and police misconduct in interrogations, to mention only two long-standing historical examples. Yet when a new problem arises clamoring for resolution, we frequently ignore the past lessons. Perhaps litigation is addictive. We know that it will not solve all of our problems, but despite our intellectual understanding, our will is overborne.

The problems posed by end of life decision-making are but one more example. Since 1975, people wishing to forgo life-sustaining medical treatment or their families have relied on the judicial system to solve a problem that undoubtedly has a legal component, but that might have been resolvable outside the courts. In 1975, it was the Quinlan case; today it is the Schiavo case, a contemporary Bleak House, spawning a mini-industry of litigation—endless rounds of essentially the same arguments made in different courts (and sometimes the same courts) through different (and sometimes the same) lawyers.

The lesson of Schiavo, if not of its five score or more predecessors, is this: our assumptions about litigation—that it provides a resolution to individual and social problems, that this resolution is final and uncontestable, and that there are no other last-resort mechanisms for resolution—are largely unsustainable. But then again, that is a rational conclusion, and addiction is not a rational process.

Limits of Litigation

Perhaps it is inevitable that end of life cases end up in court. Just consider the situation of the first prominent case to do so—the case of Karen Ann Quinlan. Here was a young woman in what her doctors said was a state of unconsciousness from which she would never emerge. Although not dead, her parents believed—as did most people—that her life was over. From time immemorial, when this has occurred, we have buried or burned our dead. But Ms. Quinlan's doctors—for a variety of more or less understandable reasons given the era in which these events occurred—would not, in effect, permit this to happen. Her parents were denied the opportunity to mourn their loss in a culturally and what their Catholic religious advisors considered to be a religiously appropriate way.

They had two choices: accept this affront to their values, their beliefs, and their dignity, or fight it. They fought it as long as they could through conventional means, but when those ultimately failed, they could continue to fight only by resorting to litigation. Litigation, however, has several limitations that ultimately make it a very unsatisfactory weapon in the armamentarium of solutions to end of life disputes.

Jurisprudential limits of litigation.

In the litigation of end of life cases, like many other kinds of cases, the battle [End Page S47] does not end the war. In all cases, the judicial decision, strictly speaking, applies only to that case. Everyone other than the parties to the case is entitled to ignore the decision—indeed, to defy it—with legal impunity. What happens in fact is far more complex than either uniform acquiescence or uniform defiance. Every litigated case in which an opinion is written by the court—and sometimes several opinions are written (there were four in Cruzan)—raises far more questions than it answers. This results from two factors.

First, litigation attacks problems piecemeal. Courts only answer questions they are asked, and litigants only ask questions that must be answered for the resolution of their particular dispute.

Second, this is not quite true. Courts write opinions that are sometimes quite discursive, and this has certainly been characteristic of end of life cases, where opinions sometimes exceed one hundred pages. However, every opinion is made up of two parts: holding and dicta. The holding of the case is the only part of the case that, strictly speaking, is law. The holding constitutes the...


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pp. s47-s51
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