Voluntarily Stopping Eating and Drinking as a Viable End-of-Life Option in Ohio

VOLUNTARILY STOPPING EATING AND DRINKING AS A VIABLE END-OF-LIFE OPTION IN OHIO SARA VALENTINE * I. I NTRODUCTION The option of voluntarily stopping eating and drinking (“VSED”) is a necessary and welcome end-of-life option. VSED “refers to a conscious and deliberate decision, by a capacitated patient suffering from advanced illness or a debilitating medical condition, to intentionally refrain from receiving food or fluids by mouth.” 1 Although no state, including Ohio, has determined whether VSED is legal or illegal, the necessity of such care is obvious when balancing the option between a long, painful death and an autonomous, shorter way to end the suffering. VSED is a relatively common option, especially when consulting with palliative care physicians and nurses who have seen the benefits of using VSED, as opposed to prolonging the life of someone who is in agony. 2 Although most physicians and caregivers overwhelmingly support VSED as an end-of-life option, 3 the legal field, historically and currently, provides no roadmap for physicians or palliative caregivers, which leaves these professionals to make subjective decisions and policies on a case-by-Copyright © 2019, Sara Valentine. * 2019 Graduate of Capital University Law School; 2014 Graduate of The Ohio State University. I want to thank Thaddeus Mason Pope, Director of the Health Law Institute and Professor of Law at Mitchell Hamline School of Law, for introducing me to this significant issue. I would also like to thank Professor James R. Beattie, Jr. for his unwavering support and legal insight throughout the process of writing this Comment. Lastly, I would like to thank my mother, Cindy Valentine, for instilling in me a passion for the medical field and my best friend, Courtney Short, whose untimely death exposed me to the lack of end-of-life options in Ohio. 1 Thaddeus Mason Pope & Amanda West, Legal Briefing: Voluntarily Stopping Eating and Drinking , 25 THE J. OF CLINICAL ETHICS 68, 68 (Spring 2014); see also Thaddeus Mason Pope & Lindsey E. Anderson, Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life , 17 WIDENER L. REV. 363, 386–87 (2011) (VSED is distinct from two similar mechanisms: (1) VSED applies only to patients who choose to stop eating and drinking orally . It does not apply to patients who are unable to take nutrition or hydration by mouth. (2) VSED applies to patients who deliberately choose to refuse food or fluid in order to hasten death. VSED does not apply to patients who are unable to eat or drink due to a condition that interferes with their appetite or swallowing.). 2 Paula Span, The VSED Exit: A Way to Speed Up Dying, Without Asking Permission , THE NEW YORK TIMES (Oct. 21, 2016), https://www.nytimes.com/2016/10/25/health/volunt arily-stopping-eating-drinking.html [https://perma.cc/HE4M-AD8Q]. 3 Id. 818 CAPITAL UNIVERSITY LAW REVIEW [47:817 case basis. Consequently, this lack of legal guidance has led to numerous lawsuits on both sides of the VSED debate: 4 whether the physicians and caregivers subjected the patient to undue pain and suffering by continuing to provide nutrition and hydration for an extended period of time; or if the physicians and caregivers failed to provide the adequate amount of nutrition and hydration to the patient so that the patient died sooner than they should have. In this article, I will be reviewing the following: the historical, common law right to refuse medical treatment; the advances that the law and medicine have made to ensure the right to refuse medical treatment is protected; the striking difference between the option of VSED versus Medical Aid in Dying (“MAID”); and the proposal to help physicians and palliative caregivers navigate the fine line of recognizing VSED as a viable end-of-life option. II. T HE H ISTORICAL , C OMMON L AW R IGHT TO R EFUSE M EDICAL T REATMENT V ERSUS A R IGHT TO D IE A. Battery, Informed Consent, and Ohio’s Recognition of “Letting You Die” The cause of action for battery “developed out of a basic judicial regard for the principle of individual autonomy, reflecting the belief that the individual ‘has the right to be free from non-consensual interference with his or her person.’” 5 In a legal sense, forcing treatment on an unwilling patient is no different than physically attacking that person. 6 Any method of harmful, offensive touching without permission constitutes an assault . 7 In Ohio, the common law definitions of battery and assault fall under one statute, R.C. § 2903.13. 8 Under this statute, no person shall knowingly or recklessly cause, or attempt to cause, physical harm to another. 9 Violating the statute can constitute a criminal offense and can also be the basis of a civil 4 See Section IV, Part II. 5 Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery , 10 J.L. & HEALTH 287, 289 (1995-1996) (citing JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 48–84 (1984)). 6 See Ohio Rev. Code Ann. § 2903.13 (West 2013) (The Ohio Revised Code makes no distinction between forcing treatment on an unwilling individual and a physical attack. Both acts constitute an assault as defined under the Ohio Revised Code.). 7 Id. 8 Id. 9 Id. 2019] VOLUNTARILY STOPPING EATING AND DRINKING 819 lawsuit. 10 Moreover, the person inflicting the assault must have knowingly or recklessly caused physical harm to another without their consent. 11 Thus, forcing medical treatment on a patient who has declined such treatment would be a cause of action for assault against the medical provider in Ohio. 12 The historical right to refuse medical treatment in the United States is often traced back to two judicial opinions: Union Pacific Railway Co. v. Botsford 13 and Schloendorff v. Society of New York Hospital . 14 In Botsford , Ms. Botsford sued Union Pacific Railroad Company for a concussion, which resulted from the alleged negligence of the railroad. 15 To determine if Ms. Botsford did suffer from a concussion, Union Pacific Railway Company requested a surgical examination of her injuries. 16 The Court denied Union Pacific Railway Company’s request, stating that: “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 17 In the 1914 Schloendorff decision, Justice Cardozo penned the classic statement of a physician’s duty to retrieve the patient’s consent: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” 18 In the years after Schloendorff , courts refined the right for a patient to refuse medical treatment, holding that the right to refuse medical treatment is a corollary to the doctrine of informed consent. 19 Most notably, the Court in the 1990 decision of Cruzan v. Director, Missouri Dept. of Health , found “[t]he logical corollary of the doctrine of informed consent 10 Id. 11 Id. 12 Id . 13 Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891). 14 Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914). 15 Union , 141 U.S. at 250. 16 Id. 17 Id. at 251. 18 Schloendorff , 105 N.E. at 93 (the Court went on to say, “[t]his is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained.” However, this statement fails to distinguish informed consent from implied consent. In most circumstances, where a patient voluntarily seeks treatment, the patient will be found to have implied their consent to the treatment.). 19 Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 270 (1990). 820 CAPITAL UNIVERSITY LAW REVIEW [47:817 is that the patient generally possesses the right not to consent, that is, to refuse treatment.” 20 The doctrine of informed consent partly derives from the fiduciary duty of the physician to the patient: A physician is under a duty to treat his patient skillfully but proficiency in diagnosis and therapy is not the full measure of his responsibility. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. Due care may require perceiving symptoms of physical abnormality to alert the patient to the condition. It may call upon the physician confronting an ailment which does not respond to his ministrations to inform the patient thereof . . . [C]ourts had recognized that the physician had the responsibility of satisfying the vital informational needs of the patient. 21 Nonconsensual surgery is an assault. 22 Scholars Richards and Rathbun note that in a medical setting, “battery becomes a legal threat in three situations.” 23 First, “if the patient has been lied to about the treatment or there is other fraud in the informed consent, then the entire consent is 20 Id. ; The Court in In re Fiori held similarly: [t]he doctrine of informed consent declares that absent an emergency situation, medical treatment may not be imposed without the patient’s informed consent. A logical corollary to this doctrine is the patient’s right, in general, ‘to refuse treatment and to withdraw consent to treatment once begun.’ [citations omitted]. 673 A.2d 905, 910 (Pa. 1996). 21 Canterbury v. Spence, 464 F.2d 772, 781–82 (D.C. Cir. 1972), cert. denied , 409 U.S. 1064 (1972). See also Lambert v. Park, 597 F.2d 236, 239 n. 7 (10th Cir. 1979): The duty of the doctor to inform the patient is in the nature of a fiduciary duty; thus, the patient has the right to decide what medical procedure he will undertake and the doctor must supply the patient with the material facts the patient will need in order to intelligently make that decision. Id. 22 The...