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Terminally Ill, Who Says?

Nevada’s Uniform Act on rights of the terminally ill sets forth the mechanisms by which terminally ill Nevada patients or their families can implement their wishes regarding the withholding or withdrawing of life-sustaining treatment. The recent case of Estate of Maxey v. Darden examined a family’s right to second guess a physician’s determination that a patient was terminally ill under the Act.

The Act provides that a terminally ill patient is a patient who has an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, in the attending physician’s opinion, result in death within a relatively short period of time. Moreover, the Act shields doctors from civil or criminal sanctions as long as the doctor acts in accordance with accepted medical standards.

A. The Facts

Avis Maxey, a 72-year old woman, was admitted to the emergency room at Desert Springs Hospital after having ingested approximately 200 prescription pills in an apparent suicide attempt. During the intubation process, Maxey’s ex-husband, as her surrogate, signed a hospital form that limited her treatment to diagnostic and therapeutic efforts that would increase her comfort but not attempt to prolong her life. Dr. Jon Darden, the emergency room doctor on duty at the time, also signed the hospital form.

In the hours that followed, Maxey was extubated, given oxygen, taken off oxygen, and given morphine for pain. Approximately four and one-half hours after arriving at the hospital, Maxey was pronounced dead.

B. The Family’s Complaint

Subsequently, Maxey’s family filed a complaint alleging among other things that Dr. Darden did not exercise reasonable medical care when he classified Maxey as terminally ill.

In support of its position, Maxey’s family presented affidavits from another emergency room physician who opined that Dr. Darden breached the standard of care by classifying Maxey as terminal. The same emergency room physician further opined that Dr. Darden acted unreasonably when he made that classification.

Dr. Darden argued that because the Act’s definition of a terminally ill patient pointedly refers to the attending physician’s opinion, he alone had the exclusive right to determine whether Maxey was terminally ill.

The trial court agreed with Dr. Darden, but on appeal, the appellate court rejected Dr. Darden’s argument by noting that the Act imposes a duty on physicians who make determinations under the Act to do so within reasonable medical standards.

Therefore, the appellate court found that Dr. Darden’s actions in classifying Maxey as terminally ill were judicially reviewable. The court further concluded that a rational jury could conclude that Dr. Darden’s conduct fell below reasonable medical standards based on the affidavits submitted by Maxey’s family. Thus, the matter was sent back to the trial court for a determination of whether Dr. Darden properly classified Maxey as terminally ill.

While the appellate court did not answer the question “when is a person terminally ill,” Nevada physicians will likely be asking that question much more frequently as a result of the Maxey decision.

Laura L. Johnson