According to the Equal Justice Initiative (EJI), one in eight death row inmates is found to be wrongly convicted. In other words, there is close to a 13% chance that a prisoner scheduled to be executed is innocent. Advocacy groups like EJI are dedicated to ending the death penalty based on this injustice—the risk of killing innocent people.
Consider the following. Persistent vegetative state (PVS) is a type of brain-injury diagnosis that can be used to determine whether a patient should live or die. However, as far back as 1996, a study in the British Medical Journal (BMJ) (and other published medical studies since) found there is nearly a one in two chance that a brain-injured person thought to be in a PVS has been misdiagnosed. In other words, the PVS diagnosis is used to kill brain-injured patients despite an almost 50% chance they are not in a PVS. Where are the advocacy groups dedicated to stopping this injustice?
Indeed, this is precisely what is happening in our medical community when a person is deemed to be in a PVS—a condition that is defined as neither in a coma nor conscious. Instead, the person is caught somewhere in between and is viewed as having no real chance of improving or emerging from this brain-injured state. In fact, the PVS diagnosis was the basis for the legal decision applied to my sister Terri Schiavo, leading to her barbaric death.
It was in 1972 when American neurologist Fred Plum and Glasgow neurosurgeon Byron Jennett established the above-mentioned term “PVS” for brain-injured patients.
Yet, those in a PVS have a degree of brain function and, in most cases, all the assistance they need to live is a feeding tube. They can breathe on their own, can verbalize or show they are in pain, and respond to stimuli. In some cases, they can live an average life span.
It is hard to imagine that Plum and Jennett, at the time they established the PVS diagnosis, knew of the countless patients who would easily fall victim to the medical community’s using the PVS diagnosis to eliminate cognitively disabled patients from the healthcare system.
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While determinations to terminate a patient’s life can be ethically thorny, there was a time that PVS patients were not subject to such lethally convenient life-and-death decisions. But, due to rising healthcare costs, changes in medical ethics, evolving cultural attitudes, and conflicting moral sensibilities, the consensus regarding PVS patients has been to target them for fatal withdrawal or denial of care due to their apparently having “no hope” of recovery.
However, before the PVS diagnosis was used to end a patient’s life, two necessary changes needed to be made. In a 1986 landmark California case, Bouvia v. Superior Court, the court established that the administration of food and water (via feeding tube) was no longer “basic care” and would be reclassified as “medical treatment”.
Around this time, similarly and equally significantly, the American Medical Association (AMA) asserted that a “feeding tube” is a form of medical treatment. This was followed in 1990 with the Cruzan v. Director, Missouri Department of Health decision when U.S. Supreme Court Justice Sandra Day O’Connor, in her concurring opinion, wrote that the court had adopted the “consensus opinion [that] treats artificial nutrition and hydration as medical treatment.”
As the feeding tube was being reclassified as a form of medical treatment, the customary practice of care for PVS patients was also being reassessed. In 1989, the American Academy of Neurology (AAN) adopted a new “standard of medical care” for patients and their surrogates concerning the uncertainties of the long-term prognosis of PVS patients. The AAN stated there was no medical or ethical reason that feeding tubes could not be withheld or withdrawn from PVS patients.
These fundamental changes related to the care of PVS patients opened the floodgates to having their feeding tubes either withdrawn or denied, thereby starving and dehydrating these vulnerable people to death.
Adding to these developments is the broad reach of the federal government through Medicare/Medicaid and private insurers, hospitals, surgery centers, and nursing facilities.
Each is increasingly focused on cost containment and de facto healthcare rationing that seizes upon any justification to stop care for long-term or particularly costly patients.
How does this all impact the PVS-diagnosed brain-injured patient? Typically, once PVS has been determined—generally within the first few weeks after a brain injury—there are two likely scenarios. In the first, the family will be informed that there is no chance of any “meaningful” improvement. (Incredibly, families are often unaware that PVS is often misdiagnosed because it’s solely up to the examining physician’s subjective discretion.) Subsequently, the patient’s insurer (if they have insurance) is notified, and their insurance ceases.
This has the effect of eliminating any chance of rehabilitative therapies for the patient. The treating physician will then either try to convince or pressure the family—by appealing to the “patient’s best interest”—to remove their loved one’s feeding tube.
The second scenario is that the family wants to continue care. In that case, they are afforded no due process against denial of treatment, no protection from euthanasia as a form of care, no right to food and water, no presumption of the will to live, and no access to rehabilitative care.
Therefore, the family must take their loved one home or find a long-term care facility. Unfortunately, once they do, without having the resources to fund rehabilitation, their loved one will most likely languish there for the rest of their life.
Despite their brokenness, families recognize the value and God-given dignity in their loved ones and are drawn to wanting to love and take care of them. However, too many physicians embrace a nihilistic worldview, judging patients by their utility, and using a highly questionable medical diagnoses to camouflage their paternalistic decisions to impose death. And there’s essentially nothing that can be done to stop them.
Amnesty International vehemently advocates abolishing the death penalty stating:
It is irreversible and mistakes happen. Execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated.
And what about the innocent brain-injured person, sitting on their own death row?
