My colleague Kathy Cerminara has published the following article in the Washburn Law Review: "Law, Perception, and Cultural Cognition Near the End of Life." From the introduction:
decade since Schiavo, neuroscience has developed in leaps and bounds, paving
the way to further questions about the “fact” of a VS diagnosis.
Neuroscientists have begun reporting success in using brain imagery to capture
the structure and function of the brains of patients with disorders of
consciousness, such as VS.
Tools such as functional magnetic resonance imaging
(“fMRI”) and electroencephalograms (“EEGs”) suggest that the clinical
diagnostic criteria used to determine whether a patient is in a VS may be
flawed. Such flaws may result in some diagnoses that are arrived at correctly
yet are factually inaccurate, indicating that a patient is in a VS when he or
she is actually in a minimally conscious state (“MCS”).
Neurologist Dr. James Bernat
has noted, “[t]he public has become both fascinated by states of
unconsciousness and skeptical of the ability of clinicians to diagnose them
correctly, treat them properly, and issue prognoses accurately.”
skepticism opens up space for discussion into which we must proceed cautiously
because of the potential to read these studies as support for opinion in the
guise of fact. Ms. Schiavo’s brother, Bobby Schindler, for example, has
described fMRI techniques as demonstrating that “an ‘unscientific, inaccurate’
diagnosis of unresponsive patients [in VS] is being used as a ‘criterion to
themselves caution that their research is not advanced enough to accurately
describe such diagnoses as unscientific or inaccurate, even if public opinion
or social consensus favored the use of them “to kill.” Because of the emotional
nature of the life-or-death issues involved, future disputes over VS are
inevitable, and they easily could
become as hotly contested as those that erupted during the final years of Ms.
only are such disputes emotional and potentially violent, but they also are all
too common. Everyone will encounter death at some point in his or her life.
Everyone will watch friends and family members die; some rapidly, under
emergency circumstances, and some after long, drawn-out dying processes. Tens
of thousands of patients lie in VS in facilities across America at this very
moment, and emotions easily flare when medical decisions are required in such
contexts. Each of those patients’ long,
drawn-out dying processes, like Ms. Schiavo’s, has the potential to involve a
struggle between autonomy, liberty, and the awesome capability of medicine--a
struggle to respect innovation in the medical sciences without sacrificing
Article will assist in navigating such struggles. First, Part II will briefly
recount Ms. Schiavo’s case as a vivid example, before delving into the relevant
advances in neuroscience that have occurred since its resolution. Part II will
analyze why those advances do not warrant questioning the validity of the
current view of VS and MCS. Part III will explain the current sharp demarcation
between these two conditions in the law of end-of-life decisionmaking. Finally,
in Part IV, this Article will develop a typology of skeptics who question
established, long-standing scientific conclusions such as the VS diagnosis. Use
of this typology in conjunction with cultural cognition theory will aid in
debates over the law relating to end-of-life decisionmaking on behalf of patients
short, this Article will demonstrate that knee-jerk, emotional protests against
statements like Bobby Schindler’s will not be as effective as
other approaches to preserving hard-won medical decisionmaking liberties. The
line between fact and opinion is still too blurry to accept those protests and
change the law regarding refusal of treatment on behalf of those in VS.
Nevertheless, we should recognize and engage with those who distrust the
received wisdom in this area rather than reject their positions outright.