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Illegal Aliens & EMTALA










Dr. Madeleine Cosman, Ph.D., ESQ
March 30, 2005

Legend, not science, states that crabs are easier to boil than frogs. Frogs placed in a pot of hot water jump out to safety. Most save themselves and only lazy or weak frogs get cooked. In a cauldron of crabs, if one crab laboriously crawls up the pot wall from the hot water and gets to the rim to escape, the other crabs snatch him back down so they all cook together. Frogs are individualists who save their skins and know their minds. Crabs are egalitarian communitarians: what is good for one is good for all, and whatever all get, everyone gets. Most of us are either frogs or crabs. Frogs make specific, precise Advance Medical Directives, appoint Surrogate Medical Decision-makers, and create Durable Powers of Attorney so that if they cannot decide on medical care, an absolutely trustworthy substitute will act as they would if they could. Crabs have faith in their health, partners, spouses, and invulnerability. Crabs love the state and trust its central control. Terri Schindler Schiavo has transformed many complacent crabs into vigilant frogs.

Pretend, for the moment, that Terri at age 26 had written a precise instruction that stated if she ever were in a Persistent Vegetative State she wished no heroic life support and expressly forbade any water and food by tube. Pretend that Terri had a devoted, loving, sexually and spiritually faithful husband who provided MRIs and diagnostic tests to learn what minimal brain function she retained, and who lavished on her all rehabilitative therapies to maximize her possibilities of recovery. Pretend that circuit court Judge Greer had no conflicts of interest in being a guardian ad litem and a judge, and no vested interest in appointing as guardian over a wife�s life and death a husband who waited seven years after the suspicious event that injured his wife�s brain and dallied until after he received a hefty medical malpractice award of over a million dollars primarily for her rehabilitation, to suddenly remember his dear wife�s explicit desire to die. Pretend that court appeals reviewed not mere procedure of previous trials but actual fact and new substance, de novo as Congress prescribed, not accepting factual determinations by just one judge named Greer. Pretend that there was no interest on the part of the ACLU, the Hemlock Society, and euthanasia groups that promote quick and easy dying of the ugly, the inconvenient, and the expensive. These groups generously encourage and support crabs. Crabs, in turn, support them.

Even if Terri had written precise instructions, even if Michael were radiantly truthful, and even if the Judge Greer was uncorrupt, we still would be obliged to fight the philosophy of the crabs. Crab world-view, crab means of analyzing reality, and crab ethics of action created the horror of Terri Schiavo�s judicial murder.


Every good Advance Medical Directive should provide six reliable directions:

1) what you wish done or not done to your body, what shall be provided or withheld: respirator, defibrillator, artificial hip, Do Not Resuscitate order
2) under what circumstances: automobile trauma, cancer metastasis, liver failure, myocardial infarction, �brain death,� �Permanent Vegetative State�
3) by whom decided: spouse, oldest son, daughter-in-law, divorced spouse, group of three friends
4) on whose recommendation: personal physician, cardiologist, hospital doctor, three consultants
5) how to resolve disputes if two appointees agree and one refuses: daughter and son versus spouse
6) how to encourage resolution and punish rogue acts: who loses what money from your estate if refusing that your will be done

Is your Advance Medical Directive a suggestion or a command? Suppose your Surrogate refuses to obey your command for keeping you alive for three months before pulling the plug. Suppose, conversely, he insists on horrendous amputations then an autopsy, violating your precise instructions against such interventions. Is your document a mere wish or an enforceable legal commitment with penalties for disobedience? Within your Advance Medical Directive, you can require a $10,000 penalty or a forfeiture of the trust fund allocated in your will to that person who violates your Directive. If a lawyer can build into a will a so-called terrorem clause that removes a gift in a will from anyone who contests the will, so such a clause should be built into the Advance Medical Directive.

How does crab philosophy affect the six reliable directions in an Advance Medical Directive? Reality consists of the seen, the unseen, and what we wish to see. The most ethical and ingenious among us will see only what we are prepared to see, think we see, and then assert that we see. We hear only what we are prepared to hear, think we hear, and then assert that we hear. Only with stern act of will can we sharpen our senses to see and hear the totally unexpected. Objective judgments of reality are derived from sense perceptions free of mystical wishes, hopes, and magic. Yet interpretation of objective data takes place in subjective context. Personal context in which we analyze objective data is created by our world-view (metaphysics), our means of perceiving reality (epistemology), and our customary methods of action (ethics).

Consider number 4 of the reliable directions for a good Advance Medical Directive: on whose recommendation should a decision be made to provide or withhold treatment to you if, for instance, and God forbid, you have a head injury. Suppose the consulting neurologist is a member of the Hemlock Society and a promoter of Death with Dignity. He is more likely to see evidence that will lead to your fast death and not see evidence suggesting further investigations of your current mental capacity to predict ability you are likely to regain. The consulting physician may be scientifically trained and splendidly objective--except in his inability to hear that nearly inaudible sound that he judges an ambient sound figment. He prefers to not see that minuscule glimmer of light that he deems unlikely in your injury but expensive in time and money to prove true or false. He is honest. But he selects what he reports and ranks importance of evidence not out of unethical influence or fraud but by what he thinks is right. A physician who believes in euthanasia considers unreasonable extension of life of a brain-injured person with poor prognosis to be unfair burden on the state�s limited fiscal and intellectual resources. He believes he is mercifully killing you whose hopeless life is not worth living. Simultaneously he is relieving your family of burden and yourself of a life he thinks you would willingly abandon if you could. Whether or not he believes in an afterlife, he considers himself a compassionate liberator from pain.

In some states, especially those with large numbers of elderly retirees, one default method for hospitals treating people over age 65 is to �withhold� care. Everyone entering those hospitals is expected to sign a directive voluntarily confirming that. The first box to check off is to forego �extraordinary� life support in case of problem.

Suppose, on the contrary, you wish to live so long as there is time left to live, and you want Surrogate Decision-makers and consultants to follow individualist frog philosophy. Medical experts exist who are stunningly objective and free of personal philosophy. Those few I have met are immoral or amoral. I recommend that you write into your Advance Medical Directive the requirement that your Surrogate buy the services of three consultants from three different medical institutions, to avoid close colleagues subtle deference to one another or antagonism to one another. Further, your Surrogate must try to ascertain philosophical quality of expert physicians with equal medical credentials. Demand in your written Advance Medical Directive that your medical Surrogate ask each medical consultant by phone a few critical questions: �Did you side with the parents or husband of Terri Schiavo? And why?� If the consultant says he favored Michael, because America is a land of law and Florida law favors the husband as his wife�s guardian, your Surrogate has learned that the consultant most likely follows Liberal Democrat politics. Your Surrogate should ask, �Do you financially contribute to the ACLU? The Hemlock Society? Death with Dignity Foundation?� If the medical consultant answers �Yes� to any, a Liberal Democrat Surrogate will infer he is in home country with good people to advise for his consent. A Conservative Republican Surrogate immediately must engage another consultant. While not infallible, the questions invite a person to proudly reveal he is Liberal or Conservative and imply his crab or frog philosophy.

Consider number 2 of the necessary reliable directions, the diagnosis of the problem. Theoretically, diagnosis should be easy, direct, and objective. Is your problem a Myocardidal Infarction or isn�t it? Is it brain death or isn�t it? Is it Persistent Vegetative State (PVS) or isn�t it? Since we have contemplated Terri Schiavo�s vegetative existence, what exactly is PVS?


PVS is Coma-Light. In 1972, Dr. Bryan Jennett and Dr. Fred Plum distinguished among several terrible brain injuries resulting in losses of consciousness, cognition, and speech. PVS differed from coma in that the patient with PVS has open eyes and follows a comparatively normal cycle of sleeping and awakening. The term �vegetable� state is intentionally powerful and denigratory, relegating the person to a rung in the hierarchy of creation below that of an animal. The traditional Great Chain of Being, traceable back through the millennia to Aristotle and Plato, then the Hebrew and Christian bibles, describes the order of the universe with God or Nature as the top link, with angels and spiritual beings next, then man and woman in the middle, with mind and spirit making the human being ascend to the spiritual, and the glories of the body�s appetites, urges, and sexuality connecting mankind to the next link down, the animal world. Below the animal link is the vegetable world. The final link is the totally inanimate objects, minerals, and rocks.

What necessary loss of mental power permits a person to be classed as persistently (though not necessarily permanently) lower in cognition than a dog, a salamander, or a horse? PVS means complete unawareness of self and environment. What is meant by �complete�? If a patient such as Terri can reveal she is in pain during her monthly menstrual period, as reported by more than one nurse who cared for her, certainly that is awareness of herself. Is that viewed as a mere tropism such as a plant or vegetable moving toward the sun? If she can interact with people at a nurses� station, if she can respond to the voice and appearance of her mother, if she � . Crabs tend to know that no one would want to �live like that,� a squash, eggplant, or cauliflower.

Consider two damning criteria for the PVS diagnosis. No evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli. No evidence of language comprehension or expression. Suppose the patient, like Terri, cannot speak and intentionally has been deprived of sensory stimuli (Michael Schiavo demanded no therapy, no pictures in her room, no voyages outside her hospice room). Sustained behavioral responses must endure how long, how often, how precisely repeated? Voluntary behavioral responses to sight, sound, touch, disgusting odors? No language expression means no vocalizations of variations of �Ahh, aah� on different pitches, with different durations, different rhythms, and with interspersed moans and groans? Parents of brain injured children, nurses, and therapists who long work with such patients understand a primitive language that is not the parents� or professionals� wishful thinking or projection onto the patient of what they want to hear. Well-intentioned physicians examining the same patient during a shorter time span might not catch that alertness or language which those with luxury of more time know to be fact, not fiction. Physicians who diagnose with the philosophy that a low quality of life as they interpret it is or is not worth living, tend to excuse a smile as an intestinal gas bubble or a volitional moan as an unintentional, mindless vocalization.


Many physicians, lawyers, insurance companies, HMOs, clinics, hospitals, and medical groups that promote Evidence Based Medicine, best practices, and single payor universal health care have vested interest in minimizing costs, reducing expensive care to those whose medical outcomes are uncertain or unsuccessful even though certain, and severely restricting care to patients whose poor quality of life make treatment futile and expensive care medically unnecessary. Each italicized phrase seems innocent in plain English but has technical meaning in medical law. Medically necessary, for instance, does not mean whatever diagnostic test, treatment, or curative medicine and surgery is correct for a particular patient�s disease or injury. Medically necessary in medical law means whatever the third party payor will pay for.

In Holland, mercy killing, euthanasia is permitted by law and encouraged by government. Five criteria must be met. Among these are: the patient unequicocally must request dying, two physicians must agree, the prognosis must be hopeless, and the patient must be in intractable pain. What do those words mean? Hopeless for what and to whom? Socialist countries always must ration medical care. Euthanasia is a fine, durable method for reducing costs, decongesting hospitals and clinics, and liberating medical personnel, medications, and surgery for those likely to get well and work again.

Holland�s Groningen Protocol enables physicians to kill children up to age 12 if their physical or mental problems are very �sad,� �hopeless,� and �painful.� This is not simply killing of newborns with terrible congenital anomalies. Children who have lived to be teenagers can be killed if experts believe them better dead than alive. If the parents disagree, that�s tough luck. The Groningen Protocol can override the will of intractable parents. A hospital committee will act in the best interests of the child and kill it for its own good.

All good crabs assure than no crab shall have more or less life or more or less medicine than any other crab. Ultimately, that assures survival of the fittest crabs. Unfit crabs are caught and thrown into the stew pot.

National Socialist law in the 1930s distinguished among qualities of life and determined that useless eaters and lives unworthy of life, lebensunvertes Leben, must be eliminated for efficiency and for genetic good.

Who owns your body? Who shall decide what is done or not done to your body? Who shall determine whether your life is worth living?

As a medical lawyer I applaud the writing of Advance Directives, Living Wills, Surrogate Decision-Maker appointments, and Durable Powers of Attorney. Terri Schiavo had none of these. Neurologists differed on Terri's diagnosis and prognosis. Maybe some courageous tribunal will adjudicate why Terri�s husband Michael's waited years to reveal "her wishes," their lamentable lack of precision, and will examine the violation of the clear and compelling standard of proof that Michael�s hearsay statement could never meet in any logical court. Underlying the Terri Schiavo case is the unstated crab philosophy that masquerades as science. Ideas have consequences. The German philosopher Hegel promoted the idea that whatever is efficient is right. That creates Medical Darwinism. Evolutionary Darwinism in the animal world is unjustly applied to the human world. Medical Darwinism consists of survival of the fittest and extinction of the unfit.

In the 2001 Issues in Law and Medicine (v.17, #1) I wrote "Psychiatric Darwinism = Survival of the Fittest + Extinction of the Unfit" in which I reviewed the mental health provisions of modern laws that place all of us who function with a disability, a disease, an imperfection, or advancing age at terrible risk of meeting a Terri-Fate.

I dealt there with the psychiatric meaning of predicting medical outcomes; and who shall decide whose quality of life is worth living. I reviewed whether in American medicine we ever considered mentally ill people expendable and killed them.

Medical Darwinism = Survival of the Fittest + Extinction of the Unfit

In many countries and in some of America's states Medicaid programs, people with a mental disorder, chronic nervous condition, or brain injury with poor prognosis are given lower priority than more fortunate patients with a time - limited condition and good prognosis. Conditions with low priority receive no money for treatment. Where there is no money, there is no treatment.

What next? Doctors by law cannot treat. Hospitals by law cannot treat. What happens to people with serious conditions whose care has high expense and poor prognosis? People not worthy of treatment must have custodial care. Custodial care, however, is costly. Isn't it wasteful to expend precious medical resources for conditions with poor current outcome and worse prognoses? Isn't custodial care a futile drain upon limited medical resources better applied to medical conditions with hopeful outcomes?

Now what? Maybe hopeless cases should be sent home to their families. Can families care and cope? Wouldn't it be kinder to families to relieve them of the burden? Acute care is expensive, custodial care is burdensome to the state, and caring for hopelessly ill people at home prevents caregivers from social productivity. Parents sacrificing time and spirit for a sick child, for example, might neglect or abandon care to their well children and waste parental effort for little gain for themselves and for the state.

Triage by Hegel's whatever is efficient is right, leads inexorably to an unspeakable conclusion.

But I will speak it. Would it not be efficient and right to prevent hopelessly ill people from selfishly using resources better applicable to patients who are curable and potentially productive Americans? If given a choice, wouldn't ill people want to avoid burdening their families and their state? Wouldn't it be humane to kill them?

Isn't it logical to kill them? If people's medical conditions are incurable, hopeless, futile, and unqualified for life, and they waste limited medical time, medical effort, and medical money, then the people must be unqualified for life. If their treatment is medically unnecessary, they because of their illnesses also are unnecessary. If to treat them cannot be thought essential, imperative, indispensable, obligatory, or required, how can they be? If the life was indispensable we could not dispense with it, and if the life were imperative, we would be obligated to protect it and preserve it.

People with no preservation-worthy quality of life can be treated only if we have funds enough, world enough, and time enough. But we do not. Death for them is inevitable. Germany in the 1930s rationalized exterminating children and adults with hereditary mental disease. I do not say we should. I do not say we will. I only say we could. Because we did.

Expendability of people with mental impairment was acceptable in American medical law, as the Carrie Buck eugenic sterilization case suggests. Carrie Buck, committed in Virginia to the state Colony for Epileptics and the Feebleminded, was sterilized because "three generations of imbeciles are enough," said Justice Oliver Wendell Holm's, pertaining to Carrie, an ostensibly retarded daughter of a putatively retarded mother, who gave birth to a presumedly retarded daughter. In Oklahoma until 1942, a statute authorized sterilization of certain felons so that their crimes would not be inherited. Or consider the Willowbrook hepatitis experiments on retarded children at Willowbrook Hospital on Staten Island, New York. Medical experiments on prison inmates such as the Kaimowitz-prevented psychosurgery research in Michigan in the 1970s suggest our capacity to formulate and actuate medical horrors.

Prejudice against the "hopelessness" of mental diseases and brain injuries is evident in the current social scientific ideas of quality of life, futility, and emphases upon outcomes. Lethal effects of these three ideas are evident in the current case law pertaining to the right to die. I applaud the courageous Cruzan family in the 1990s. I followed with admiration the adventures of the Quinlan's attempt to release from a ventilator their comatose daughter Karen Ann. I agree with most holdings allowing an individual the right to refuse heroic life-extending mechanical treatments.

Yet I am appalled by a recurring emphasis in court testimony and case holdings asserting that death is preferable to disabled lives, lives that observers consider not worth living. Let those who want to die, die. But let us not instill a duty to die.

Quality of life, outcomes, and futility medical intervention also are important themes in medical malpractice cases on wrongful conception and wrongful birth. Courts view some disabilities as fates worse than deaths, with plaintiffs collecting damages for having to suffer the indignities of impaired life. Dr. Kevorkian and his physician-assisted suicide techniques called obitiatry encourage euthanasia for the mentally ill.

Cost consciousness, cost efficiency, and cost savings are major driving practical forces of American medical laws such as those controlling Medicare and Medicaid. Shall we protect the handicapped under the Americans with Disability Act and then kill them off by withholding medical treatment?

Shall we decide refusal to treat by national policy? Under threat of criminal penalties we refuse citizens or families of ill people to obtain from private American sources care prohibited by the American government. Such malevolent clauses, after all, were in the toxic Clinton Health Plan legislation that have been transported in large sections into Health Insurance Portability and Accountability Act. What options are open for people the social scientists determine to be America's unfit? If some Americans are unfit for medical care, what are they fit for, worthy of, deserving, and qualified for?

Since subsistence custodial care is expensive, what should America do with its huge numbers of aged people, chronically sick people, and mentally compromised people who never will get well, never will contribute to the advancement of America, and who always cost plenty to keep alive? Money is in short supply and necessary for other more productive, utilitarian purposes.

Determining what is medically necessary assumes medication is available for treating a particular ailment, ameliorating symptoms, healing, or curing. Medically unnecessary therapies are withheld because the patient's problem either is too benign for medication or too malign. At one extreme, home remedies treat well and nature or passage of time will cure. Contrariwise, medically unnecessary means the patient's problem is chronic, fatal, terminal, and hopeless, and medicine a useless intrusion. For either benign or the malign medical problem, medicine should not be frittered in wasteful expense. Diseases unresponsive to treatment should not be treated because American money, medicine, and time are limited. We can afford only to invest in medical success.

This is medical Darwinism. This doctrine encourages survival of the fittest. The inevitable result is extinction of the unfit. Battlefield triage is reasonable in times of war when the essential purpose is to save as many fallen warriors as possible to enable them to fight again. Utilitarian triage, however, should not be the American philosophical and practical structure for its advanced, civilized, rich, humane society. Or should it?

Medical law now provides mandates for cost-effective research and cost-conscious practice. Many in managed care want to replace old-fashioned, outworn physicians and surgeons (who had pledged allegiance to Hippocrates and Maimonides) with new doctors and medical ethicists who pledge allegiance to the global budget and efficiencies of American government. Even the most benevolent and efficient government cannot protect the patients' best interests simultaneous with state interests. Of necessity, governments are selfish beasts concerned with their longevity, fiscal health, and privileges. In managed competition, managed care, and managed medicine, capitation is a dangerous moral wedge: patients are not individuals but mere "heads" classified by diagnosis. Also toxic is persistent emphasis on medical outcomes. Another peril is the cynical translation of medically necessary as whatever a third-party payor will pay for. Probably the most terrifying concept of all is the one that propels Terri into a crematory jar: third-party determinations of an individual's quality of life.

Inexorably these concepts cause withholding of medical care. That may be efficient and utilitarian. When the state decides, not the citizen, rarely is withholding just. Only accidentally is it humane. Medical Darwinism celebrates survival of the fittest by extinguishing the unfit.

Who owns your body?

� 2005 Madeleine Cosman - All Rights Reserved

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Dr. Cosman is a medical lawyer located in California. Her forthcoming book in 2005 is Who Owns Your Body?: Doctors and Patients Behind Bars. She lectures worldwide on medical law and medical policy, has testified before Congress on medical law issues, and has spoken in Washington for Cato Institute and Galen Institute. She wrote the ABCs of the Clinton Medical World for Congress in 1993. A Director of California Rifle and Pistol Association, she writes "Guns and Medicine" for Firing Line. One of her 15 published books was nominated for the Pulitzer Prize, National Book Award, and was a Book of the Month Club Dividend Selection.

Madeleine promotes free-market, patient-centered medicine, and Health Savings Accounts.

Her J.D. is from New York's Cardozo School of Law, Ph.D. from Columbia University, M.A. from Hunter College, and B.A. from Barnard College. She is a member of the New York State Bar, New Jersey Bar, American Bar Association's Health Law Section, and American Inns of Court. Madeleine is Professor Emerita of City College of City University of New York and a Life Fellow of the New York Academy of Medicine.










This is medical Darwinism. This doctrine encourages survival of the fittest. The inevitable result is extinction of the unfit.