At common law the doctrine of informed consent protected individuals from unauthorized touching. This is one of the reasons that patients sign consents prior to surgery before receiving treatment. The doctrine of informed consent formed much of the basis for living wills or wills which allowed an individual to opt out of heroic measures if death was imminent. See, e.g., Cruzan v. Missouri, 497 US 261, 110 S.Ct. 2841 (1990) (demonstrating the legal validity of effective advance medical directives).
In Maryland, the Court of Appeals wrestled with a living will situation involving dueling guardianship petitions. In Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1993), a young man was severely injured in an auto accident; specifically, he never gained consciousness after the accident and was expected to remain in a persistent vegetative state indefinitely. The issue before the court was whether the man’s wife or his father would be guardian. The wife had moved to Florida and sought recognition of a Florida guardianship in Maryland. As a guardian under Florida law she would be permitted to remove life support. The father sought guardianship under Maryland law in order to prevent life support from being removed. The Court of Appeals held that the common law did not apply because of the modern nature of the medical science which permitted the extension of life. The Court of Appeals requested Maryland’s General Assembly to consider the issue:
“Were this Court to conclude that it was not in Ronald’s best interest to live, we would be doing much more than simply applying to the facts of Ronald’s case a general equitable principle governing decisions concerning a ward of a court. Having concluded that Ronald’s individual intent is unknown, a conclusion that it is in Ronald’s best interest to die would be based on his existence in a persistent vegetative state. That being the precedent, artificially administered sustenance should be withheld from all persons in a persistent vegetative state whose actual desires concerning the administration of such sustenance are unknown. Examination of that precedent would reveal that persons in a persistent vegetative state have no cognition and cannot take care of themselves. As a logical progression from that precedent, cases eventually would be presented submitting that the best interest of the most severely retarded and feebleminded, who require extended care, who have practically no cognition, and who are too disabled to feed themselves, would be to have sustenance withheld. The question of whether to adopt a quality of life-best interest standard concerns our societal values in a most fundamental sense. The answer to that question is quintessentially legislative. Unless and until current public policy, as we perceive it, is changed by the General Assembly, sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life.”
Id. at 222. In response, the 1993 General Assembly enacted sweeping changes to Maryland law.
In Wright v. Johns Hopkins Health Sys. Corp., 353 Md. 568, 728 A.2d 166 (1999), the Court dismissed a suit against health care providers for purportedly failing to follow an advanced directive. The case involved a close reading of the statute. The decedent’s directive was a pre-1993 document that only addressed the circumstances if death was imminent. That circumstance was not shown as of the time of the medical intervention so no actionable cause of action was found. That case certainly did not preclude suit in a proper case.