Section 5-601 of Maryland’s Health-General Code sets forth certain key definitions. Md. Code Ann., Health-Gen. § 5-601 (LexisNexis 2006). Specifically, the law defines three medical situations where an advance directive would be appropriate:
• End stage condition: “An advanced, progressive, irreversible condition caused by injury, disease or illness: (1) That has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and (2) For which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.”
• Persistent vegetative state: “A condition caused by injury, disease, or illness: (1) In which a patient has suffered a loss of consciousness, exhibiting no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflex activity of muscles and nerves for low level conditioned response; and (2) From which, after the passage of a medically appropriate period of time, it can be determined, to a reasonable degree of medically certainty, that there can be no recovery.”
• Terminal condition: “An incurable condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life-sustaining procedures, there can be no recovery.”
Of these three conditions, the persistent vegetative state is the only specific medical diagnosis. A “terminal condition” is not a specific medical diagnosis but a determination that the underlying condition will cause imminent death. This is akin to the old “living will” formula that death is imminent. Presumably, these two conditions would be familiar to health care professionals; the former being a term of art and the latter a standard that physicians have traditionally applied in living wills cases. The end-stage condition is an attempt to address problematic aspects of the old death-is-imminent standard. As medical science is increasingly able to postpone death, this standard applies to situations where the underlying condition is irreversibly progressing towards death.
Under Maryland law a surrogate decision-maker is to make decisions in the best interest of the patient when the patient is incompetent and had not given advance directive regarding medical treatment. By statute, “best interest” is a balancing test whereby a determination is made “that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment.” Md. Code Ann., Health-Gen. § 5-601(e). The surrogate is to take into account the following factors: (1) the effect of the treatment on the physical, emotional, and cognitive functions of the individual; (2) the degree of physical pain or discomfort caused to the individual by the treatment, or withholding or withdrawal of the treatment; (3) the degree to which the treatment or the withholding of the treatment will result in a severe and continuing impairment of the dignity of the individual by subjecting the individual to a condition of extreme humiliation and dependency; (4) the effect of the treatment on life expectancy; (5) the prognosis for recovery; (6) the risks, side-effects, and benefits of the treatment; and (7) the religious beliefs and basic values of the individual to the extent these may assist the decision maker in determining best interest. Id.