Incapacitated, Alone and Treated to Death

Mr. Green lay in the bed next to the window, 15 floors above the Cross-Bronx Expressway. Fifty-nine years old and suffering from AIDS-related dementia, he was bedbound, permanently tethered to a ventilator and, though conscious, unaware of his medical condition. In medico-legal parlance, he was incapacitated: unable to understand the consequences of his decisions and unable to direct the doctors caring for him.

The view from his bedside was impressive — a thousand acres of worn, low-slung apartment buildings set off by the massed arc of Manhattan, rising from the distance like the Emerald City.

That no friend or family member would ever share this view was another of his mounting misfortunes. Referred to the hospital from a nursing home for fever and weight loss — he was so thin that the skin of his chest would not even hold EKG leads — he had no identified relatives or friends. His personal history had vanished into the maze of health care facilities that had been his home for more than a year. Other than name, Social Security number and date of birth, his life story had disappeared.

Mr. Green was one of thousands of New Yorkers — physically devastated, mentally depleted, without hope of recovery and without surrogates — for whom the prolongation of life at all costs was the only legally sanctioned course of treatment. Even if friends or relatives were found, New York prohibits the withholding or withdrawing of life-sustaining treatment without a signed health care proxy or “clear and convincing” evidence of a patient’s wishes. A “do not resuscitate” order can be put in place by doctors, but only in the absence of identified surrogates and only if resuscitation is considered futile.

Other states, to varying extents, allow family members, friends or guardians to make the decision about life support, even without knowledge of a patient’s prior wishes. A few states grant it to the doctor in the absence of such surrogates. A treatment that preserves a heartbeat but offers no hope of recovery — long-term ventilator support in a vegetative state, say — may be withdrawn. New York permits no such possibility. Physicians not wanting to find themselves at the center of precedent-setting test cases on patients’ rights will treat, treat and treat, no matter the cost to the patient or their own souls.

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