Schiavo story provokes new interest on issue
Local attorney says living wills are being taken more seriously
BY JENNIFER AMATO
Staff Writer

NORTH BRUNSWICK — Last week the world witnessed the death of Terri Schiavo, which raised issues about whether she was murdered or granted mercy through the actions of her husband. Regardless of personal opinion on this issue, many people wonder how the Schiavo case would have played out in New Jersey.

“New Jerseyans are given the right to direct their medical treatment and can refuse life-sustaining procedures in certain circumstances. It depends on whether you are permanently unconscious or have a terminal illness,” said Cathyanne A. Pisciotta, a North Brunswick resident and attorney who practices elder law, which includes estate planning, last wills and testaments, living wills and powers of attorney.

“Permanently unconscious” is stated by New Jersey law as a total and irreversible loss of consciousness and capacity for interaction with the environment. The definition includes a persistent vegetative state and irreversible coma. Fluid and nutrition tubes are considered “life-sustaining procedures” under New Jersey law, and therefore one can choose to have the tube removed.

“However, euthanasia is not legal in New Jersey,” she added. Euthanasia is the act of painlessly ending the life of a terminally ill person for reasons of mercy.

Because Schiavo did not have a living will, her husband gained guardianship and was able to prove by “clear and convincing evidence” that she would have chosen to be removed from life support had she found herself in a permanent vegetative state. In an order dated Feb. 11, 2000, a judge did in fact find evidence, but her parents brought many challenges to reverse the finding.

Cases similar to Schiavo’s happen all of the time.

“There is nothing unusual about her case,” Pisciotta said. “There are people facing tough decisions about whether to prolong a loved one’s care in grave situations everywhere, every day. But the emotional and financial impacts to Terri’s family could have been avoided had Terri Schiavo executed a living will.”

A living will, also called an advance directive, is a formal document that makes a person’s wishes known when they are incapacitated and find themselves in a situation such as Schiavo’s.

The original “right to die” case ensued in New Jersey after 21-year-old Karen Ann Quinlan collapsed after mixing alcohol with Valium in April 1975. She suffered brain damage and lapsed into a persistent vegetative state. The Supreme Court’s report stated that if her attending physicians and the hospital’s ethics committee “agree that there is no reasonable possibility of Karen ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability on the part of any participant, whether guardian, physician, hospital or others.”

Her doctors decided she had no chance of recovery, so her father, Joseph Quinlan, was awarded guardianship and chose to remove her respirator. Ironically, she kept breathing after the machine was unplugged and remained in a coma for nearly 10 years before she passed away of pneumonia in 1985, according to published reports.

Due to the publicity of the Schiavo case, Americans are now learning the importance of advance planning and having documentation of their wishes in case of a medical emergency. However, some people still procrastinate believing that they can sign a living will at the hospital.

“While that is true, that assumes you are competent upon arrival. When Terri Schiavo and Karen Ann Quinlan arrived at the hospital, they were incapacitated and remained so for the rest of their lives,” cautioned Pisciotta. “To forgo these rights is to leave the decision-making burden on your family, who, as we have seen in the Schiavo case, may vehemently disagree with each other. To put your relatives and loved ones through that is a travesty. You need to decide for yourself. It’s the right that you are given.”

The ability to plan ahead for incapacity does not end at a living will. “You can also execute a durable medical power of attorney [DMPA],” Pisciotta said. A DMPA allows you to select a health-care representative who is responsible for making health-care decisions when you are unable to. Pisciotta said it is best that these documents are drafted by attorneys familiar with the laws and who have the ability to counsel people on their choices.

“You have to talk to people about what they actually do want. It is really interesting to find out what they think. Some people say to me that they want the plug pulled, but after we discuss the matter, they decide that it is better to allow their health-care representative to make the decision,” Pisciotta said.

“You should also include HIPAA privacy releases for the representative to avoid any problems relating to access to your medical records and providers,” she added.

There is a new awareness and interest in executing advance directives due to the extensive publicity of the Schiavo case.

“The interviews I have with clients now take longer as they have so many more questions. It’s great because they have in a sense ‘experienced’ this issue through the Schiavo case, which makes it more real. Before, I had to describe what could happen, which has a lot less impact,” Pisciotta said. “After the Schiavo case, I have asked more people, what if [death] is not instant? What if it is a year? What if you can be stabilized? What about drugs, surgery, therapy? Do I want to starve to death? What about vital bodily functions? It used to be, ‘Pull the plug, pull the plug!’ Now people say, ‘Wait a minute, let me think about it,’ ” Pisciotta said.