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Steven J. Klearman
Steven J. Klearman
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Nevada Supreme Court Clarifies the Rights of the Terminally Ill

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The Nevada Supreme Court clarified a few sections of Nevada’s Uniform Act on Rights of the Terminally Ill last week in Estate of Maxey v. Darden, 124 Nev. Adv. Op. No. 43 (July 2008). The Act authorizes three procedures for terminally ill patients or their families to withhold life-sustaining treatment. First, under certain circumstances, an individual may direct an attending physician to withhold life-sustaining treatment by executing a declaration. Second, an individual can execute a declaration designating another person to make decisions regarding withholding treatment. Finally, if neither declaration is present, a terminally ill patient’s attending physician can withhold life-sustaining treatment if he or she receives surrogate consent from certain family members. In Estate of Maxey, involving the third situation, the Supreme Court addressed the meanings of “attending physician,” valid “surrogate consent,” and “terminally ill” under the Act.

Attending Physician

Evaluating the term “attending physician” de novo, the Court concluded that “in light of the Act’s purpose and the Nevada Legislature’s decision not to define “attending physician” with any particular limitations, we determine that the Legislature intended the attending physician to be the physician who has primary responsibility for the patient’s treatment and care at the time when administering life-sustaining treatment becomes an issue.”

Surrogate Consent

The Act requires that an attending physician act on the surrogate’s written consent, attested by two witnesses. The Court determined that “an attesting witness must have personal knowledge that the surrogate gave written consent to withholding or withdrawing the terminally ill patient’s life-sustaining treatment. If an attesting witness is present at the time when the surrogate provides written consent, personal knowledge of the surrogate’s intent is presumed. Because, however, NRS 449.626(1) does not require an attesting witness to subscribe his or her name to the consent form, but instead only requires attestation, proof of the attesting witness’s personal knowledge is not necessarily limited to the witness’s signature on the consenting document.”

Terminally Ill

The Court concluded that an attending physician’s determination that a patient is terminally ill is subject to judicial review because the Act imposes a duty to act in accord with reasonable medical standards when determining the patient’s status. Thus, “only if the physician acts in accord with such standards is he or she entitled to immunity from civil liability. A physician’s conformity to the standard, when taking any action under the Act, is therefore subject to judicial review.”

You can take a look at the entire opinion here: http://www.leg.state.nv.us/SCD/124NevAdvOpNo43.pdf