Section 5-601 of the Health-General Article sets forth certain definitions. It recognizes 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 those three medical conditions, the persistent vegetative state is one that is, essentially, a medical diagnosis. A “terminal condition” is not a specific medical diagnosis but, rather, a determination that the underlying condition will cause imminent death. This is akin to the old “living will” formula that death would be imminent. Presumably, these two conditions would be ones somewhat familiar to the health care profession. In the one case, it is a term of art in medicine and in the other case it is a standard that physicians have applied in traditional “living wills” for many years. The third condition (end-stage condition) is an attempt to address the problematic aspect of the “death-is-imminent” standard. Because medical science is increasingly able to postpone death, this standard addresses the situation where the underlying condition is irreversibly marching toward death and would not be waylaid by medical intervention.
Because the Maryland statute permits a surrogate decision maker to act when the patient is incompetent and had not given an advance directive as to medical treatment, the statute defines “best interest.” The surrogate is to make decisions in the best interest of the patient. “Best interest” is a balancing test whereby a determination is made “that the benefits to the individual resulting from a treatment outweigh the burdens the individual resulting from that treatment.” 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.
