Back to the Cyberculture Archive The Electronic Living Will and Formalities of Execution by Jon Michael Dumont Third year student Villanova University, School of Law Computer Science and Legal Reasoning Seminar Professor Henry H. Perritt, Jr. May 1993 I. Introduction In reaction to escalating health care costs, proposals have been made to computerize health care records.1 However, the computerization of certain medical records may conflict with statutorily mandated writing and signature requirements imposed by current state law. Living wills2 present a useful example for examining the transition from paper to electronic medical records. Living wills have writing, signature and attestation requirements for legal validity,3 and living wills are required to be incorporated into the declarants' medical records.4 This paper first explores the current law of living wills, and then suggests one possible method of implementing electronic living wills. The paper then examines the objectives underlying the formalities of execution associated with living wills, and analyzes how well those objectives are achieved in the proposed electronic format as compared to the traditional paper format. Finally, the paper concludes that the potential advantages of electronic living wills over their paper counterparts justify legislative facilitation of the use of electronic living wills in the future. Although this paper focuses specifically on electronic living wills, the analysis may be adapted to other documents which also have writing and signature requirements for legal validity. II. Living Wills In Cruzan v. Director, Missouri Department of Health,5 the Supreme Court considered for the first time whether there exists a constitutional "right to die."6 A plurality of the Court upheld a Missouri statute requiring that a patient's desire to refuse artificial nutrition and hydration be established by clear and convincing evidence before such sustenance could be withheld.7 The Cruzan decision has been interpreted by some commentators as the Supreme Court's indirect endorsement of the use of living wills to establish a patient's desire to refuse life-sustaining hydration and nutrition by clear and convincing evidence.8 However, the Supreme Court in Cruzan never defined what would constitute clear and convincing evidence of an individual's desire to refuse life-sustaining treatment. Instead, the Court decided to leave the details of determining and enforcing patients' wishes to the states.9 As a result, over forty different living will statutes10 have been enacted by states which dictate the con ditions in the respective jurisdictions under which a living will becomes legally effective.11 While a comprehensive examination of the various living will statutes is beyond the scope of this paper, there are a number of characteristics common to most state statutes. Under the typical statute, a competent adult12 may execute a living will in which the declarant states that should the declarant later become incompetent and terminally ill13 or enter a persistent vegetative state,14 sustained only by artificial life-prolonging procedures,15 that declarant chooses not to receive further medical treatment. Some statutes also provide for living wills in which the declarant requests the continuation of life prolonging medical treatment.16 To execute a legally binding living will, a declarant usually must comply with a number of statutory formalities. Most living will statutes require the declaration to be in writing and signed by the declarant17 in the presence of at least two witnesses.18 Witnesses generally verify that the declarant was of sound mind at the time of execution. Living will statutes often have strict witness qualification restrictions19 designed "to avoid conflicts of interest."20 Furthermore, a number of living will statutes provide a living will form, but these statutes differ as to whether use of the form is mandatory or optional.21 In addition, living will statutes often require the declarant to deliver the declaration to his or her health care provider.22 Mississippi requires living wills to be filed with the bureau of vital statistics of the state board of health.23 In order to ensure compliance with state formalities, North Carolina has a statutory provision for "proving" living wills before a clerk of the s uperior court or a notary public.24 However, this type of non-judicial authentication seems ill-suited to preventing individuals intent on falsifying a living will.25 Anyone who conceals or damages a living will, forges a living will, forces another to execute a living will or conceals knowledge of a revocation is usually subject to criminal penalties under state law.26 A judge is in a better position to enforce these laws than a notary public. Nevertheless, these formalities all tend "[t]o provide a more reliable record of the decision to execute a living will and . . . provide a `ceremony` which will reinforce the seriousness of the matter at hand."27 Revocation of a living will requires minimal formality under the majority of living will statutes.28 The apparent reason for this lack of formality for revocation is to ensure that no patient wanting treatment will be denied such treatment, notwithstanding previous execution of a living will. However, this lack of formality also seems to increase the probability of the reporting of unintended revocations and mistakes in the identification of revocations.29 One commentator has suggested: [t]he reasons for requiring a degree of formality in the execution of living wills are no less applicable to revocation. Physicians faced with reports of oral statements that may or may not be revocations cannot say for certain whether the statements were actually made, whether the words used were a sufficiently clear expression of an intent to revoke, or whether clearly stated words were intended as the patient's final expression. Patients may make statements of revocation without ever realizing that someone might act upon such casual words. Without some degree of formality, there is no way to separate preliminary thoughts and tentative plans from legally effective and significant acts. To avoid such ambiguities when a patient is choosing between life and death, living will statutes should require the same formalities for revocation as for execution.30 Nevertheless, only Mississippi requires a highly formal revocation procedure.31 Health care providers may incur a duty to incorporate a declarant's living will into his or her medical records under either a state living will statute32 or The Patient Self-Determination Act of 1990 (PSDA).33 Under the PSDA, any organization receiving Medicare or Medicaid funding must provide the advance directive descriptions to adult individuals admitted as patients, residents, or those receiving hospice care. [T]hese health care providers must formulate written policies to implement the state's guidelines concerning advance directives and inform patients about these policies. Health care organizations must document in each individual's medical record whether an advance directive has been executed, and, if so, ensure that it complies with the state developed description.34 Under the PSDA, only health care providers that receive Medicare or Medicaid funding incur duties to document living wills in patient medical records. However, state living will statutes impose obligations on health care providers to document living wills in patient medical records irrespective of Medicare or Medicaid funding. In order for a living will to take effect, most states require the attending physician to provide a written certification documenting the declarant's terminal condition or persistent vegetative state for the declarant's medical records.35 Typically, the declarant's condition must be confirmed by more than one physician.36 The apparent rationale behind this requirement is to prevent medical error.37 However, these statues do not specify what happens if the second doctor disagrees. If the second doctor simply refuses to sign the certification, and a third doctor can be found to concur, the confirmation requirement may not necessarily serve to reduce medical error.38 Nevertheless, the requirement that the certification be in writing "serves to ensure that the second opinion will be given with some care as it could easily be traced to its author."39 Health care providers acting in good faith are protected from liability when following a declarant's wishes as expressed in a living will executed in accordance with state law.40 If a physician is unwilling to abide by the declarant's wishes, state law usually imposes an obligation on the physician to transfer the declarant to another physician who will honor the living will.41 However, no physician can be forced to participate in the withdrawal of life-sustaining treatment. In addition, at least one court has held that when there is no reliable evidence of the patient's own desires to recieve or refuse treatment, a physician or hospital does not act at its peril by refusing to withdraw life support without court permission.42 III. Electronic Living Wills In June of 1992, federal legislation was proposed to create an electronic network designed to reduce the costs associated with health care. This proposed legislation, referred to as The Medical and Health Insurance Information Reform Act of 1992,43 has three major components: (1) automation of claims processing and payment; (2) automation of medical records; and (3) provision of comparative information for consumers regarding the quality and cost of health care. In order to implement the automation of medical records, the proposed legislation prohibits states from requiring medical information to be kept in written, rather than electronic form.44 The Secretary of Health and Human Services is given responsibility for promulgating standards for the transmission and content of electronic medical records.45 In addition, hospitals that participate in Medicare would be required to maintain "an electronic patient care information system that met the standards specified by the Secretary."46 The rationale behind automating medical records seems to be twofold. Dr. Louis Sullivan suggested that the "[q]uality and coordination of care for patients will be improved, as physicians and hospitals . . . [get] rapid and easy access to a patient's medical history through automation."47 The life-saving potential of automated medical records in situations where quick access to critical information48 can mean the difference between life and death is evident. However, not all the information in a patient's medical records is critical information. Furthermore, Representative Frank Horton of New York, who introduced The Medical and Health Insurance Information Reform Act in the House of Representatives, suggested, "an electronic network . . . will greatly reduce the administrative costs associated with health care."49 An electronic medical records system has great potential to reduce the time spent searching for records, save physical space used for storing paper records, and reduce the cost associate d with copying and transporting medical information. These savings would apply to all electronic records, including electronic living wills. A living will, which must be made a part of the declarant's medical records in most jurisdictions,50 provides a useful example for examining the transition from paper to electronic storage of records. Living wills have statutorily mandated writing and signature requirements which may preclude the use of an electronic living will. Nevertheless, the use of electronic living wills may be justified in terms of reductions in administrative costs, improved access and other advantages over paper living wills. In order to compare the use of electronic living wills with paper living wills, it is first necessary to examine how electronic living wills could fit into a larger, comprehensive electronic medical records system. Implementation of a comprehensive electronic medical records system will require interfacing separate and independent health care computer systems. Health care providers will inevitably need access to medical records collected and stored in distant computer systems. As long as a standardized addressing scheme and data structure is adopted, medical records could easily be transferred between distant computer systems over the Internet.51 Since different computer systems may use different data structures, multiple protocol conversions may be necessary to allow different computer systems to communicate with each other. By standardizing data structures within the medical records system, the need for format conversions may be eliminated and transmission error reduced. The electronic medical records system could incorporate the use of "hypertext" pointers52 to link documents across the network. Given the sensitive nature of medical records, health care providers could design their computer systems to uti lize public key encryption techniques53 to ensure confidentiality and authentication when communicating over the Internet. Electronic living wills could be implemented over the Internet with the aid of a third party value added network (VAN). This trusted VAN would facilitate the encryption of electronic living wills and certify their authenticity. The VAN could issue private keys to individuals wishing to execute living wills. The private key and algorithm needed for encryption could be sent to the declarant by mail or other secure means. Using a PC,54 a declarant could execute an electronic living will, encrypt it using the private key and algorithm provided by the VAN, and send it to over the Internet to the VAN. Furthermore, the electronic format also offers a multimedia dimension. Individuals may videotape the execution of their living wills, have the videotape digitized and then incorporated into their electronic living wills prior to encryption and delivery to the VAN.55 The VAN can verify the living will using the declarant's public key and then place the encrypted living will and its corresponding public ke y on a secured file server56 attached to the Internet. The VAN could certify that a living will decoded with a particular person's public key was necessarily generated by that person's private key. A hypertext pointer could then be included in the declarant's electronic medical records in the health care provider's computer indicating the location of that declarant's living will and the appropriate public key on the VAN's server. When a health care provider accesses the living will pointer in a patient's electronic medical records, the encrypted living will along with the appropriate public key would be retrieved from the VAN. Upon decoding the living will, the health care provider could be certain of the document's authenticity. Furthermore, the terminal condition or vegetative state certifications required to activate a living will57 could be executed electronically by doctors using public key encryption and connected to the corresponding living will using hyptertext pointers. In order to elucidate how this vision of electronic living wills will compare with traditional paper living wills, it is necessary to examine the rationales for having writing, signature, and attestation formalities associated with the execution of living wills. Although living wills and wills that dispose property at death differ in significant respects,58 the formalities associated with the execution of living wills are similar to those associated with the execution of ordinary wills. Both instruments have writing, signature and attestation requirements.59 Therefore, the framework used for the examination of the formalities associated with ordinary wills60 is also helpful when applied to living wills. Professor Langbein identified four discrete functions to attribute to these formalities: evidentiary, channeling, cautionary and protective functions.61 However, as Professor Fuller pointed out, although these four functions can be distinguished, "it is obvious that there is an intimate connection b etween them. Generally speaking, whatever tends to accomplish one of these purposes will also tend to accomplish the [others]."62 The writing, signature and attestation formalities each serve these four functions to varying degrees. The evidentiary function of formalities is to provide reliable evidence of the declarant's intent and the terms of the declaration. The writing requirement ensures that the declarant's wishes will "be cast in reliable and permanent form."63 The signature requirement "is meant to produce evidence of genuineness."64 The unique nature of individual signatures and the indelible nature of ink allows signed documents to be identified with the particular signer. The declarant's signature serves as evidence of the declarant's intention to be bound by the terms of the particular declaration. Furthermore, the attestation requirement attempts to provide trustworthy evidence of the declarant's competence and the circumstances the of execution. The evidentiary function of formalities is important for living wills because the living will speaks for the author after he or she is no longer able to communicate. The channeling function of formalities is to provide a method for the legally effective expression of intention.65 Professor Fuller compares the channeling function to the role of language: "One who wishes to communicate his thoughts to others must force the raw material of meaning into defined and recognizable channels. . . ."66 The channeling function is fulfilled by the use of standardized formalities which provide a recognizable method for individuals to exercise their rights of prospective autonomy. Professor Langbein points out that "[t]he channeling function has both social and individual aspects."67 With respect to the social aspect of channeling, one commentator has suggested, "the uniform nature of formalities fulfills the channelling function because uniformity reduces litigation and uncertainty, thus creating an efficient administrative system."68 The efficient administration of living wills which results from the use of standardized formalities benefits society by reducing the cost so ciety incurs to distinguish valid from invalid living wills. The individual aspect of channeling refers to the benefit an individual receives from using standardized formalities to express desires in a legally binding manner rather then devising a unique mode of expression. The compliance with standardized formalities ensures the declarant that his or her intent will be effectuated and eliminates the uncertainty that would be associated with using a unique mode of communication to clearly and convincingly express intent. Given the right of states to impose a clear and convincing evidence standard under Cruzan, the channeling function is particularly important with respect to living wills. Since individuals must establish their desires to refuse treatment by clear and convincing evidence, the requirement of standardized formalities provides a "channel" for individuals to express their desires clearly and convincingly. By complying with the writing, signature and attestation requirements, an individual ha s the ability to exercise his or her right to refuse unwanted medical treatment. The cautionary function of formalities is to impress upon the declarant the legal significance of the declaration and thereby ensure the deliberate intent of the declarant.69 The writing requirement forces the declarant to distinguish the declaration from casual conversation. The physical act of signing the declaration signifies the legal importance of the document. In addition, "[t]he signature tends to show that the instrument was finally adopted . . . and to mitigate against the inference that the writing was merely a preliminary draft . . . or haphazard scribbling."70 Professor Langbein pointed out, "[t]he formalities associated with attestation also serve cautionary policies. The execution . . . is made into a ceremony impressing the participants with its solemnity and legal significance."71 Given that living wills concern the serious matter of an individual's future dying process, such declarations should require deliberate consideration. The protective function of formalities has traditionally been assigned the role of protecting the declarant from undue influence at the time of execution. Protection from undue influence has usually been associated with the witness qualification restrictions72 of the attestation requirement which are designed to surround the declarant by unbiased witnesses who will not be motivated to coerce or deceive the declarant.73 However, Professor Langbein has criticized the protective function of formalities: The attestation [qualification] formalities are pitifully inadequate to protect the testator from determined crooks, and have not in fact succeeded in preventing the many cases of fraud and undue influence which are proved each year. . . . Protective formalities are not needed. Since fraud and undue influence may always be proved notwithstanding due execution, the ordinary remedies for imposition are quite adequate.74 Professor Chaffin pointed out, "[i]n most cases of fraud or undue influence, the wrongdoer would be careful not to sign as a witness but would use disinterested witnesses instead."75 However, since it is not difficult to envision attempts by uncaring or greedy relations "to euthanize . . . afflicted kinsman prematurely so as to reap estate benefits or avoid crippling medical expenses,"76 formalities that tend to enhance the protective function should be valued. Furthermore, in addition to protection from undue influence, another aspect of the protective function may also be described. The formalities associated with the execution of a living will also tend to ensure that the declarant's actual desires are embodied in the legally effective expression of those desires. By being required to sign the written expression of his or her desires, the declarant has the opportunity to correct accidental or deliberate mistakes in the expression which do not match his or her intention. In this sense, the protective f unction overlaps the evidentiary and cautionary functions. In order to compare the utility of electronic living wills with that of paper living wills, it is necessary to examine how well the evidentiary, channeling, cautionary and protective functions are achieved in the electronic as compared to the paper format. The electronic living will can potentially serve the evidentiary function better than its paper counterpart. Paper documents with ink signatures provide evidentiary value due to the difficulty of alteration77 and the uniqueness of the declarant's signature. Electronic documents can be inherently unreliable due to the ease with which such documents may be changed without a trace; however, as previously discussed,78 steps can be taken to ensure that electronic documents provide a greater degree of content integrity and declarant authentication than even paper documents.79 Electronic living wills can be stored by the VAN using write-once-read-many (WORM) optical storage techniques, instead of the common magnetic techniques, to provide a greater deg ree of permanence than even paper provides. Public key encryption techniques can be employed to ensure authenticity and virtually eliminate the possibility of deliberate alteration of the document.80 The complexity of public key algorithms provides declarants with a greater degree of security from fraud and forgery than achievable using paper. Furthermore, error checking protocols can be used to reduce the likelihood of inadvertent alteration.81 In addition to foregoing methods of ensuring authentication and content integrity, the execution of the living will can be videotaped, digitized, and incorporated into the declarant's electronic living will. Although a video living will alone probably would not be accepted as legally binding under state law,82 video living wills do provide special advantages. One commentator has suggested: The video recording provides a visual nexus between declarant and document so that intentions are crystallized and mental competency is undeniably demonstrated. With videotape, the terminal individual literally addresses physician, family and (if necessary) the court even after personal communication becomes impossible. A written declaration simply states a disembodied desire to end treatment. Furthermore, there can be little question as to proper execution of the written living will if the event is video recorded.83 Video living wills could be used to reveal fraud in the execution and provide clear evidence of intent and mental competence. The electronic format may actually enhance performance of the channeling function compared to its paper counterpart. The channeling function of living will formalities is to facilitate the ability of individuals legally to effectuate their desires regarding prospective autonomy. Formalities designed to improve the ability of declarants to clearly and convincingly establish the intent to refuse treatment84 better fulfill the channeling function. By enhancing the ability of individuals to establish their intent clearly and convincingly, the use of video living wills can provide individuals with a greater degree of certainty that their desires will be effectuated. The individual and social aspects of channeling may be improved by the increased certainty that video can provide. The electronic format may also provide a means to improve fulfillment of the cautionary function. In the paper format, the physical act of signing the living will serves to caution the declarant as to the seriousness of his or her act. However, the physical act of signing need not be abandoned in the electronic format. Pen-based computers already exist which would allow a declarant to use a stylus on a "digitizing tablet" to affix his or her signature to the electronic document.85 An electronic living will could be designed to utilize message repetition and acknowledgment techniques to enhance consideration and raise awareness. In addition, use of a declarant's private key for encryption may tend to serve the cautionary function. Furthermore, the cautionary value of the "ceremony" associated with attestation could be increased through the use of video living wills. By videotaping the execution of the living will, the solemnity of the event is reinforced due to the presence of the camera and light ing equipment. After the execution, to caution the declarant from forgetting about the living will and therefore failing to revoke it,86 automated messages could be generated by the VAN periodically and sent to the declarant requesting reconsideration or re-execution of the living will. The protective function of formalities may also be enhanced by an electronic format. Video living wills can be used to reveal undue influence in a manner not possible with paper living wills. If the declarant explains his or her reasons for executing the living will on videotape, any lack of sincerity or intent will be more evident than had the declarant merely signed a paper living will. Furthermore, if the protective function is also seen to include the role of ensuring that the declarant's actual intention is embodied in the legal expression of that intention, then video living wills may also enhance the protective function by providing a clearer expression of the declarant's intent. The foregoing discussion indicates that an electronic living will may serve the evidentiary, channeling, cautionary and protective functions better than a paper living will. However, determining whether electronic living wills should replace paper living wills also requires an examination of the relative costs associated with fulfilling these functions. The cost of fulfilling the evidentiary, channeling, cautionary and protective functions for paper living wills is relatively low.87 The cost of effecting these functions in the electronic format depends on the "package of technologies" chosen to implement the electronic living will. There are many possible ways to design an electronic living will. The problem of choosing the best "package of technologies" for an electronic living will is complicated by the constant development of new technologies and the decreasing cost of older technologies over time. This paper suggests one possible solution in order to point out the possible benefits of electron ic living wills, but quantification of the cost of implementing electronic living wills is beyond the scope of this paper. Nevertheless, the potential advantages of electronic living wills over paper living wills justifies legislative facilitation of electronic living wills notwithstanding their cost of implementation. The proper design of an electronic living will should not include any technology which costs more to implement than it benefits declarants in terms of the evidentiary, channeling, cautionary and protective functions relative to using paper living wills. Clearly, the costs of adapting one's computer to handle public key encryption, purchasing pen-based computer interfaces, or utilizing digitized videotape may be prohibitive for many individuals. However, certain characteristics, such as public key encryption, will need to be required in order for electronic living wills to fulfill the evidentiary and cautionary functions as well as paper living wills. Nevertheless, the potential for electronic living wills to fulfill the evidentiary, channeling, cautionary and protective functions better than paper living wills, improve access and reduce administrative costs as part of a comprehensive electronic medical records system, justifies the adoption of state or federal legislation intended to facilitate the use of properly designed electronic wills. IV. Conclusion Although electronic living wills would not comply with the statutory writing and signature requirements imposed by state law, properly designed electronic living wills have the ability to fulfill the evidentiary, channeling, cautionary and protective functions underlying writing, signature and attestation requirements better than their paper counterparts. Therefore, state living will statutes should be amended to allow for the use of electronic living wills or federal legislation should be adopted to preempt state laws which preclude electronic living wills. However, electronic living wills should not be mandated as long as the cost of executing an electronic living will which adequately serves the evidentiary, channeling, cautionary and protective functions is prohibitive for many individuals. Although the foregoing analysis focused specifically on living wills, it is equally applicable to other documents which also have writing, signature or attestation requirements for legal validity. Formalities of execution need not be abandoned in the electronic format. Furthermore, the objectives underlying formalities of execution may be fulfilled in the electronic format better than in the paper format. Therefore, legislatures should facilitate the use of properly designed electronic documents by amending laws which preclude their use. Jon Michael Dumont Third year student, Villanova University, School of Law Computer Science and Legal Reasoning Seminar May 1993 1. See infra notes 43 to 46 and accompanying text. 2. Generally, a living will is a device which allows a competent adult to designate in a legally binding manner, whether or not the declarant wishes to receive medical treatment should she become terminally ill and incompetent. 3. See infra notes 17 to 24 and accompanying text. 4. See infra notes 32 to 34 and accompanying text. 5. 110 S.Ct. 2841 (1990). Nancy Cruzan became incompetent due to severe head injuries sustained in an automobile accident. Id. at 2844. Although Nancy had never executed a living will when competent, once it became apparent that Nancy was in a persistent vegetative state, her parents sought a court order directing the withholding of nutrition and hydration provided by the gastrostomy tube surgically implanted into Nancy's stomach. Id. at 2845. The U.S. Supreme Court held that since no clear and convincing evidence existed that Nancy would have desired the withdrawal of nutrition and hydration equipment, Nancy's parents lacked the authority to effectuate such withdrawal. Id. at 2855. 6. The phrase "right to die" appears in quotations to indicate that the words are not meant in the colloquial sense. A patient's exercise of the right to die is a form of euthanasia. . . . Ethicists distinguish between active euthanasia, the active administration of a death-producing agent to accelerate death, and passive euthanasia . . . the withholding or termination of life-sustaining medical treatment to allow a disease to run its natural course. Ethicists also distinguish between voluntary and involuntary forms of euthanasia. The term "right to die" generally refers to passive voluntary euthanasia. Courts upholding a right to die usually characterize it as a right to refuse life-sustaining medical treatment. Comment, The Right to Die: An Exercise of Informed Consent, Not an Extension of the Constitutional Right to Privacy, 58 U. Cin. L. Rev. 1367 (1990). 7. After assuming that a 14th Amendment liberty interest to refuse medical treatment exists for competent adults, the Court weighed this interest against those of the state in protecting and preserving human life. The Court found this state interest sufficiently important to justify Missouri in requiring that a patient's wishes to refuse life-sustaining medical treatment be established by clear and convincing evidence. Cruzan, 110 S.Ct. at 2853. For a more comprehensive discussion of the constitutional issues in Cruzan, see Comment, Living Will Statutes in Light of Cruzan v. Director, Missouri Department of Health: Ensuring that Patient's Wishes Will Prevail, 40 Emory L. J. 1305, (1991) (authored by Elizabeth D. McLean) [hereinafter McLean]. 8. See McLean at 1305 n.3. Although the Cruzan opinion does specifically discuss the validity of living wills, it appears that at least Justice O'Connor would uphold them as valuable indication of a patient's intent. Id. at 1313-14. See Cruzan, 110 S.Ct. at 2857 (O'Connor, J., concurring) ("[F]ailures [to honor a patient's intent] might be avoided if the State considered an equally probative source of evidence: the patient's appointment of a proxy to make health care decisions on her behalf."). 9. See Cruzan, 110 S.Ct. at 2859 (O'Connor, J., concurring). Justice Scalia maintained that states may restrict a patient's right to refuse medical treatment as their legislatures deemed appropriate. Id. at 2859 (Scalia, J., concurring). 10. State statutes which govern the use of living wills are referred to by various names, including: living will, death with dignity, natural death, and right to die statutes. For a list of the forty-two statutes, see Note, Living Wills and Alternatives to Living Wills: A Proposal -- The Supreme Trust, 26 Val. U. L. Rev. 567, 567 n.2 (1992) (authored by Craig K. Van Ess). 11. The diversity of state law on the legal effectiveness of living wills presents interesting conflict of laws problems which are beyond the scope of this paper. However, at least two states have attempted to provide for the recognition of living wills executed in other states. Compare Minn. Stat. Ann. § 145B.16 (West 1993) ("A living will executed in another state is effective if it substantially complies with this chapter.") with Tenn. Code Ann. § 32-11-111 (1992) ("A living will . . . executed outside of this state by a nonresident . . . at the time of execution shall be given effect in this state if that living will is in compliance with either the provisions of this chapter or the laws of the state of the declarant's residence."). 12. See e.g., Ind. Code Ann. § 16-8-11-11(a) (West 1992) ("A person who is of sound mind and is at least eighteen (18) years of age may execute . . . a living will declaration. . . .") Most statutes provide that the living will of a competent woman becomes ineffective if she is pregnant. See e.g., Ind. Code Ann. § 16-8-11-11(d) (West 1992) ("The living will declaration of a person diagnosed as pregnant by the attending physician has no effect during the person's pregnancy."). 13. Most living will statutes define what constitutes "terminal illness" or a "terminal condition." See e.g., Ga. Code Ann. § 31-32-2(13) (1992). "Terminal condition" means incurable condition caused by disease, illness, or injury which, regardless of the application of life-sustaining procedures, would produce death. The procedure for establishing a terminal condition is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that: (A) There is no reasonable expectation for improvement in the condition of the declarant; and (B) Death of the declarant from these conditions will occur as a result of such disease, illness, or injury. Id. 14. Some "right to die" statutes apply when a patient enters a "persistent vegetative state." See e.g., Ga. Code Ann. § 31-32-2(9) (1992). "Persistent vegetative state" means a state of severe mental impairment in which only involuntary bodily functions are present and for which there exists no reasonable expectation of regaining significant cognitive function. The procedure for establishing a persistent vegetative state is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that: (A) The declarant's cognitive function has been substantially impaired; and (B) There exists no reasonable expectation that the declarant will regain significant cognitive function. Id. 15. Most living will statutes define what constitutes life sustaining procedures or life prolonging procedures. See e.g., Ga. Code Ann. § 31-32-2(6) (1992). "Life-sustaining procedures" means any medical procedures or interventions, which, when applied to a patient in a terminal condition or in a coma or persistent vegetative state with no reasonable expectation of regaining consciousness or significant cognitive function, would serve only to prolong the dying process and where, in the judgment of the attending physician and a second physician, death will occur without such procedures or interventions. The term "life-sustaining procedures" may include, at the option of the declarant, the provision of nourishment and hydration, but shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain. Id. Some living will statutes specifically exclude nutrition and hydration from the definition of what constitutes life prolonging procedures. See Ind. Code Ann. § 16-8-11-4 (West 1993) ("`Life-prolonging procedure` does not include the provision of appropriate nutrition and hydration, the administration of medication, or the performance of any medical procedure necessary to provide comfort care or to alleviate pain.") Other statutes do not explicitly state whether or not nutrition and hydration constitute life prolonging procedures. See N.M. Stat Ann. § 24-7-2(C) (1992) ("`[M]aintenance medical treatment` means medical treatment designed solely to sustain the life processes."). 16. See e.g. Minn. Stat. Ann. § 145B.03.1 (West 1993) ("A competent adult may make a living will of preferences or instructions regarding health care. These preferences or instructions may include, but are not limited to, consent to or refusal of any health care, treatment, service, procedure, or placement.") (emphasis added). In such a state, someone who is a "vitalist," and believes that life is so sacred as to demand preservation to the last possible moment, may execute a living will requesting the continuation of all life preserving treatment no matter how dismal the patient's ultimate condition. See Cantor, Prospective Autonomy: On the Limits of Shaping One's Postcompetence Medical Fate, 8 J. Contemp. Health L. & Pol'y 13 (1992). 17. Many living will statutes provide for the situation where a declarant is physically unable to sign his or her declaration. See e.g., Fla. Stat. Ann. § 765.04(1) ("If the declarant is physically unable to sign the written declaration, his declaration may be given orally, in which event one of the witnesses must subscribe the declarant's signature in the declarant's presence and at the declarant's direction."). 18. See e.g., Tenn. Code Ann. § 32-11-104(a) (1992). However, at least one state allows for a notary public to substitute for two witnesses. See Minn. Stat. Ann. § 145B.03 (West 1992). 19. See e.g., Ga. Code Ann. § 31-32-3(a) (1992). Such living will shall be signed by the declarant in the presence of at least two competent adults who, at the time of the execution of the living will, to the best of their knowledge: (1) Are not related to the declarant by blood or marriage; (2) Would not be entitled to any portion of the estate of the declarant upon the declarant's decease under any testamentary will of the declarant, or codicil thereto, and would not be entitled to any such portion by operation of law under the rules of descent and distribution of this state at the time of the execution of the living will; (3) Are neither the attending physician nor an employee of the attending physician nor an employee of the hospital or skilled nursing facility in which the declarant is a patient; (4) Are not directly financially responsible for the declarant's medical care; and (5) Do not have a claim against any portion of the estate of the declarant. Id. 20. Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. Rev. 737, 758 (1987) [hereinafter Gelfand]. Witness qualification "restrictions serve to ensure that reasonably neutral persons are present when the declarant makes such an important decision, because the declarant may feel freer to reconsider his decision away from the subtle pressures of interested parties." Id. 21. Compare Wis. Stat. Ann. § 154.03 (West 1992) (mandatory) with Alaska Stat. § 18.12.010 (1991) (optional). 22. Not all states require the declarant to deliver the original living will to his or her health care provider. Compare Minn. Stat. Ann. § 145B.05 (West 1992) ("A living will becomes operative when it is delivered to the declarant's physician or other health care provider.") with Tenn. Code Ann. § 32-11-104(b) (1992) ("It shall be the responsibility of the declarant or someone acting on his behalf to deliver a copy of such living will or declaration to the attending physician and/or other concerned health care provider.") and W. Va. Code § 16-30-3(c) (1992) ("It shall be the responsibility of the declarant to provide for notification to his or her attending physician and other health care providers of the existence of the living will."). 23. See Miss. Code Ann. § 41-41-107(2) (1972) ("The declaration shall be filed with the bureau of vital statistics of the state board of health."). 24. N.C. Gen. Stat. § 90-321(d) (1992). The above declaration may be proved by the clerk or the assistant clerk, or a notary public in the following manner: (1) Upon the testimony of the two witnesses; or (2) If the testimony of only one witness is available, then a. Upon the testimony of such witness, and b. Upon proof of the handwriting of the witness who is dead or whose testimony is otherwise unavailable, and c. Upon proof of the handwriting of the declarant, unless he signed by his mark; or upon proof of such other circumstances as will satisfy the clerk or assistant clerk of the superior court, or a notary public as to the genuineness and due execution of the declaration. (3) If the testimony of none of the witnesses is available, such declaration may be proved by the clerk or assistant clerk, or a notary public a. Upon proof of the handwriting of the two witnesses whose testimony is unavailable, and b. Upon compliance with paragraph c of subdivision (2) above. Due execution may be established, where the evidence required above is unavoidably lacking or inadequate, by testimony of other competent witnesses as to the requisite facts. The testimony of a witness is unavailable within the meaning of this subsection when the witness is dead, out of the State, not to be found within the State, insane or otherwise incompetent, physically unable to testify or refuses to testify. If the testimony of one or both of the witnesses is not available the clerk or the assistant clerk, or a notary public or superior court may, upon proper proof, certify the declaration as follows: "Certificate" "I .........., Clerk (Assistant Clerk) of Court for the Superior Court or Notary Public (circle one as appropriate) of .......... County hereby certify that based upon the evidence before me I am satisfied as to the genuineness and due execution of the attached declaration by .........., declarant, and that the declarant's signature was witnessed by ......, and .........., who at the time of the declaration met the qualifications of G.S. 90-321(c)(3). "This the .... day of ......, .... ......................................................... Clerk (Assistant Clerk) of Superior Court or Notary Public (circle one as appropriate) for ...... County." Id. A health care provider relying on a "proven" living will is immune from civil and criminal liability. N.C. Gen. Stat. § 90-321(h) (1992). 25. Gregory Gelfand has expressed the view that [i]t seems doubtful that . . . [North Carolina's] provision is constitutional as it delegates what appears to be judicial power to persons who are not capable of exercising that authority. The objection is not only one of form but is of some substance as well. A notary or a clerk of the court has no discretion and cannot conduct a serious inquiry if there are questions to be resolved. Gelfand at 760-61. See Saunders v. State, 492 N.Y.S.2d 510, 129 Misc.2d 45 (1985) (action seeking declaratory judgment as to validity of living will presented justiciable issue). 26. See e.g., Minn. Stat. Ann. § 145B.10 (West 1992). 27. Gelfand at 756. 28. See e.g., Minn. Stat. Ann. § 145B.09 (West 1992). A living will under this chapter may be revoked in whole or in part at any time and in any manner by the declarant, without regard to the declarant's physical or mental condition. A revocation is effective when the declarant communicates it to the attending physician or other health care provider. The attending physician or other health care provider shall note the revocation as part of the declarant's medical record. Id. The only formality in this statute is the requirement that the revocation be communicated to the attending physician. Other statutes also utilize formalities that identify the event of revocation such as physical destruction. See Ind. Code Ann. § 16-8-11-13(a)(2) (West 1992). 29. See Francis, The Evanescence of Living Wills, 24 Real Prop. Prob. & Tr. J. 141, 152 (1989). For a discussion of the ethical issues posed by second hand reports of patient desires, see Case Study: A Cardiac Arrest and a Second Hand Report, 16 Hastings Center Rep. 15 (Dec. 1986). 30. Gelfand at 768. 31. Miss. Code Ann. § 41-41-109 (1972). In Mississippi, revocations must be written, signed, witnessed, and filed with the state bureau of vital statistics. 32. See e.g., W. Va. Code § 16-30-3(c) (1992) ("An attending physician, when presented with the living will, shall make the living will or a copy of the living will a part of the declarant's medical records."). 33. Pub.L. No. 101-508, ss 4206(a), 4751(m), 104 Stat. 1388-116, 1388-205 (1990) (to be codified at 42 U.S.C. ss 1395, 1396). The PSDA is the first significant federal legislation concerning the use of advance directives to control health care treatment and decisions. The purpose of the PSDA is to inform the public about and increase the use of these advance directives. To achieve these objectives, the PSDA assigns specific functions to the states, to any organization eligible for Medicare or Medicaid, and to the Department of Health and Human Services. Under the PSDA, each state must develop a written description of its statutory or judicial law concerning advance directives for dissemination and use by health care providers. . . . In addition to developing written descriptions, states must ensure that each health care provider receiving Medicare or Medicaid funds complies with the duties imposed on them by the PSDA. Health care organizations, including hospitals, skilled nursing facilities, home health agencies, and hospice programs, where approximately eighty percent of all individuals die, have more extensive duties under the PSDA. Comment, The Patient Self-Determination Act of 1990: Health Care's Own Miranda, 8 J. Contemp. Health & Pol'y 455, ___ (1992) (footnotes omitted) (authored by Michael A. Refolo). 34. Id. (footnotes omitted). See § 4206(a), 104 Stat. at 1388-115 to -116. 35. See e.g., Ga. Code Ann. § 31-32-8(a)(2) (1992). Prior to effecting a withholding or withdrawal of life-sustaining procedures from a patient pursuant to a living will, the attending physician . . . [s]hall, without delay after the diagnosis of a terminal condition of the declarant, take the necessary steps to provide for the written certification . . . of the declarant's terminal condition, coma, or persistent vegetative state. Id. Since a complete examination of all state living will statutes is beyond the scope of this paper, it is assumed that such written certifications are required under each state's law. 36. See e.g., Miss. Code Ann. § 41-41-113 (1972) (requires declarant's physician and two other physicians to concur). 37. Gelfand at 763. 38. Id. at 765. One commentator has suggested, "[t]he problem created by physician disagreement is twofold: while giving a veto to the first additional physician is too harsh, allowing physician-shopping dilutes the safeguard into nonexistence. The wisest provision for subsequent statutes would require judicial intervention when the first additional physician consulted disagrees with the initial certification." Id. 39. Id. at 764. 40. See e.g., W. Va. Code § 16-30-7(a) (1992). No health care provider or employee thereof who in good faith and pursuant to reasonable medical standards causes or participates in the withholding or withdrawing of life-prolonging intervention from a person pursuant to a living will made in accordance with this article shall, as a result thereof, be subject to criminal or civil liability. Id. Compare Ariz. Rev. Stat. Ann. § 36-3261(C) (1992) ("A health care provider who makes good faith health care decisions based on the provisions of an apparently genuine living will is immune from criminal and civil liability for those decisions. . . ."). 41. See e.g., W. Va. Code § 16-30-7(b) (1992). An attending physician who cannot comply with the living will of a declarant pursuant to this article shall, in conjunction with the health care representative, next of kin of the declarant or other responsible person, effect the transfer of the declarant to another physician who will honor the living will of the declarant. Transfer under these circumstances does not constitute abandonment. Id. 42. Grace Plaza v. Elbaum, 588 N.Y.S.2d 853, 183 A.D.2d 10 (1992). In Grace Plaza, the comatose patient, Jean Elbaum, had never executed a living will nor provided for a surrogate decision maker to consent to or refuse medical treatment on her behalf. Since there was no clear and convincing evidence that Ms. Elbaum would have refused treatment, her health care provider continued to administer life support notwithstanding attempts by Ms. Elbaum's conservator to have the treatment discontinued. The Court found, "[t]he legal obligation to provide adequate nutrition and hydration to . . . patients ceases only after a trier of fact has been persuaded that the patient held a firm and settled commitment to the termination of life supports under the circumstances like those presented." Grace Plaza at 857, 183 A.D.2d at 15. If a living will has been executed in accordance with state law, a court order allowing the withdrawal of treatment or transfer of the patient should not be difficult to obtain. See also McVey v. Englewood Hosp. Assoc., 216 N.J. Super. 502, 524 A.2d 450 (1987) (hospital and physicians not liable for failing to comply with comatose patient's undocumented oral request to terminate life support). 43. S. 2878, 102nd Cong. 2d Sess. (1992). Introduced at 138 Cong. Rec. S8659-04 (1992). This legislation "died" after the 102nd Congress. 44. S. 2878, 102nd Cong. 2d Sess. § 2210 (1992). Also at 138 Cong. Rec. S8659-04, S8661 (1992). 45. S. 2878, 102nd Cong. 2d Sess. § 2230(a) (1992). Also at 138 Cong. Rec. S8659-04, S8662 (1992). 46. S. 2878, 102nd Cong. 2d Sess. § 2231(a) (1992). Also at 138 Cong. Rec. S8659-04, S8662 (1992). 47. 138 Cong. Rec. S8659-04, S8666 (1992). 48. Examples of critical information include a history of diabetes, epilepsy, hemophilia and drug allergy. 49. 1992 WL 140500 (Cong. Rec.) 50. See supra notes 32 to 34 and accompanying text. 51. The Internet is a globally interconnected, multiprotocol network supporting research, educational and commercial uses. 52. "Hypertext" pointers would utilize a standardized addressing scheme to create links between documents stored in different computers. See T. Nelson, Virtual World Without End (Sept. 7, 1990) (Presentation to Cyber Arts International Conference) (describes Xanadu software for keeping track of interconnections of documents). 53. Public key encryption is but one of many possible ways to improve the reliability of electronic records. Public key encryption is based upon the RSA Cryptosystem which utilize[s] large integer arithmetic to create algorithms that are asymmetric in the sense that encoding of a [document] . . . can be performed with one part of the key while decoding requires a different part of the key. . . . [T]he private part of the key is used only by the key's owner to [execute the document], and the public part of the key is used by any receiver to verify the . . . [document]. The security . . . comes by virtue of the complexity of the algorithm used to create . . . [the encrypted document]. T. Jones, Implementation of a PC Based Digital Signature System 3 (Nov. 12-13, 1992) (Presentation to NIST Workshop on Security Procedures for the Interchange of Electronic Documents). In addition to providing virtual certainty as to the originator's authentication, this technique also dramatically reduces the possibility of deliberate alteration of the document. 54. It may be necessary to equip the PC with a digital signal processor so that it will be able to efficiently implement the algorithms used for public key encryption. See T. Jones, Implementation of a PC Based Digital Signature System 4 (Nov. 12-13, 1992) (Presentation to NIST Workshop on Security Procedures for the Interchange of Electronic Documents). 55. Analog audio and video signals can be digitized and stored in binary form. Once in binary form, the video can be appended to the electronic living will file. However, it should be noted that use of digitized video may require additional investment in the specialized hardware needed to take advantage of this technology. 56. In order to prevent deliberate alteration of information on the server, physical security must be assumed. See J. Tygar & B. Yee, Dyad: A System for Using Physically Secure Coprocessors (Dec. 1992). 57. See supra notes 35 to 39 and accompanying text. 58. One commentator has suggested: Despite their similarity of nomenclature, living wills and ordinary wills are very different types of advance directives. . . . The law of ordinary wills reflects liberal political theory about the rights of individuals to do as they wish with their property, tempered by the social need for certainty about control of property. The emerging law of living wills limits autonomous choice by the preservation of life. Francis, The Evanescence of Living Wills, 24 Real Prop. Prob. & Tr. J. 141, 141-42 (1989). Although ordinary wills and living wills have different underlying policies, the obvious similarity between these instruments is that both speak for the declarant after he or she is no longer able to regarding an important matter of personal choice. Formalities are important just for this reason. 59. The formalities for witnessed wills originated with the Statute of Frauds of 1677. This statute provides in part: [A]ll devises and bequests of any lands or tenements . . . shall be in writing and signed by the party so devising the same . . . and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect. Statute of Frauds, 1677, 29 Car. 2, ch. 3, § 5. 60. See Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 492-97 (1975) [hereinafter Langbein]. 61. Id. 62. Fuller, Consideration and Form, 41 Colum. L. Rev. 799, 803 (1941) [hereinafter Fuller]. 63, Gulliver & Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 6 (1941) [hereinafter Gulliver & Tilson]. 64. Langbein at 493. 65. See Fuller at 801. 66. Fuller at 802. 67. Langbein at 494. 68. Note, An Analysis of the National Advisory Committee on Uniform State Laws' Recommendation to Modify the Wills Act Formalities, 10 Prob. L.J. 283, 283 (1991). 69. See Langbein at 495 ("[Formalities] caution the testator, and they show the court that he was cautioned."). 70. Gulliver & Tilson at 5. 71. Langbein at 495. 72. See supra notes 19 and 20 and accompanying text. 73. Langbein at 496. 74. Langbein at 496. Most living will statutes have provisions covering fraud and undue influence. See supra note 26 and accompanying text. 75. Chaffin, Execution, Revocation, and Revalidation of Wills: A critique of Existing Statutory Formalities, 11 Ga. L. Rev. 297, 317 (1977). 76. Buckley, The Case for the Videotaped Living Will, 2 Prob. & Prop. 30, 30 (1988) [hereinafter Buckley]. 77. An individual's ink signature on one document cannot easily be transferred to another document. 78. See supra notes 53 to 56 and accompanying text. 79. See Perritt, The Electronic Agency and the Traditional Paradigms of Administrative Law, 44 Admin. L. Rev. 79 (1992) ("A variety of techniques for authenticating electronic documents exist that are as good or better than traditional handwritten signatures."). Since electronic documents can be authenticated both in terms of author identity and content integrity with as much, if not more, certainty than paper documents, there is no reason that an electronic living will should be considered any less reliable than a paper living will. 80. See supra note 53 regarding the use of public key encryption. 81. Baum & Perritt, Electronic Contracting, Publishing and EDI Law, Section 1.11 (Wiley 1991). 82. See supra note 17 and accompanying text regarding statutory writing and signature requirements. One commentator expressed the view that "under current state laws, a videotape of a declarant indicating his or her wishes to withdraw or withhold life-sustaining medical care would merely serve as ordinary evidence of the patient's intent. Such a video recording would not be accepted as an independent living will." Buckley at 30. See also L. Waggoner, R. Wellman, G. Alexander & M. Fellows, Family Property Law 171 (1991) ("A videotape has not yet been recognized as a writing and cannot operate as the will itself."). 83. Buckley at 31. 84. Under Cruzan states may require clear and convincing evidence of a patient's desire to refuse life-sustaining treatment. See supra notes 5 to 11 and accompanying text. 85. See generally, Computers Advancing Rapidly Back to the Pen, N.Y. Times, Jan. 6, 1993, at D2, col. 1. Use of a physical signature requirement would be primarily aimed at fulfilling the cautionary function. Although the unique nature and indelible quality of signatures in the paper format also serves an evidentiary or authentication function, electronic signatures may be easily copied and transferred without a trace thereby complicating authentication. However, public key encryption may be used to overcome this problem. See also T. Jones, Implementation of a PC Based Digital Signature System (Nov. 12-13, 1992) (Presentation to NIST Workshop on Security Procedures for the Interchange of Electronic Documents). 86. See supra notes 28 to 31 and accompaying text regarding the lack of formality associated with the revocation of living wills. 87. These costs would include access to a written living will form valid in the declarant's jurisdiction, a pen, and the cost of delivering the living will the declarant's health care provider. {PAGE} . |