Only "clear and convincing" evidence can trigger living will

An Alabama case shows that while setting the level of proof needed of a patient's medical state won't change the way physicians practice, it underscores the importance of living wills.

By Tanya Albert, AMNews staff. Oct. 8, 2001.

The Alabama Supreme Court recently said physicians must have "clear and convincing" evidence that a patient is in a persistent vegetative state before a valid living will would go into effect.

But the ruling, believed to be the first of its kind, isn't expected to change the way physicians and other hospital personnel do their jobs when dealing with end-of-life care.

Instead, the law is catching up to what the medical profession has already been practicing: Ensuring that a patient is indeed in the state in which they have declared they no longer wish to receive life support and there isn't any hope of them coming out of that state.

"It's a clarification in the law," said Andrew Clausen, a Mobile, Ala., attorney who represented the nursing home in the case. "It's reflecting a belief that has already been in the minds of the health care providers."

The lawsuit, Knight et al. v. Beverly Health Care Bay Manor Health Care Center, stems from differing opinions within a family of whether a patient was in a medical state that would have triggered a living will calling for life support to be taken away.

The patient had suffered a massive stroke and while in a nursing facility suffered another stroke and became unresponsive. Her physician said she was in a "persistent vegetative state," according to court documents.

The patient's husband sought an order that implemented his wife's living will -- which called for removing a feeding tube.

The patient's sons objected and looked to the court to stop physicians from removing the feeding tubes. They believed their mother still had some cognitive functions and that she was in a "permanent unconscious state," according to court documents. That health condition would not trigger her living will, they argued. [...]