Opinion
No. 12–P–1707.
2012-11-5
GUARDIANSHIP OF J.D.
By the Court (CYPHER, GREEN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from an order by a judge of the Probate and Family Court for substituted judgment. On October 5, 2012, the judge held a hearing pursuant to G.L. c. 190B, § 5–306A, and considered the following evidence: the medical certificate of William Gormley, M.D.; the medical affidavit of Travis Tierney, M.D., Ph.D.; the report of the guardian ad litem; information from an independent medical examination obtained by the incapacitated person's attorney; and the testimony of the incapacitated person's parents.
The matter came before the Probate and Family Court because the parents could not agree on medical treatment.
On that day, the judge issued an order for substituted judgment and explained his rationale. The judge stayed the implementation of his order for three weeks to give the family time to prepare. On October 24, 2012, the father of the incapacitated person filed an appeal, together with a motion for an emergency stay, in the single justice session of the Appeals Court, and the order was temporarily stayed and referred to a full panel for an expedited hearing. On October 26, 2012, the probate judge issued findings and a memorandum of decision for purposes of the appeal. We heard oral argument on October 31, 2012, and all interested parties who wished to be heard were permitted to argue. We had before us the recording of the probate judge's oral decision, the written findings and memorandum of the judge, the memorandum of the father, a memorandum on behalf of the incapacitated person by his attorney, the memorandum of Brigham and Women's Hospital, the petitioner in the Probate and Family Court, and the record before the probate judge, including the report of the guardian ad litem which was incorporated by reference in the judge's findings of October 26, 2012. We also have allowed a motion by Brigham and Women's Hospital to expand the record to include a medical affidavit from the treating physician dated October 26, 2012, regarding competency and the treatment plan.
The father argues that the order of the probate judge should be reversed and the matter remanded for further proceedings, including, but not limited to, an evidentiary hearing. The attorney for the incapacitated person requests similar relief. Among their arguments, not all of which need be specifically addressed, they maintain that the judge, sua sponte, should have sought live testimony from medical personnel,
and they disagree with the judge's decision on the issue of substituted judgment.
The father acknowledges that neither he nor counsel for the incapacitated person made any request for such testimony at the hearing, or raised any objection to the admission of the documentary evidence.
The judge held a hearing to consider the medical portion of the matter on the documentary evidence, including affidavits, as there were no contested issues of fact. See G.L. c. 190B, § 5–306A. At the time of the hearing in the Probate and Family Court, no party disputed the medical evidence. The information from the independent medical examiner indicates that there is no activity in the frontal lobes of the incapacitated person's brain.
With regard to the decision the incapacitated person would make, the judge heard from the parents, the incapacitated person's attorney, and the guardian ad litem was on call in the event any of the parties wished to examine her. There was no objection to the admission in evidence of the guardian ad litem report.
At oral argument before us there was again no dispute concerning the medical evidence before the probate judge.
In these circumstances, statutory and due process requirements were met. There is no obligation for a judge to seek out medical testimony when there is no dispute regarding the medical evidence, no objection to the introduction of the documentary evidence, and no request for witnesses to be heard. It is a fair assessment of the record to say that the evidence is overwhelming: the incapacitated person's condition is such that no improvement of his functioning can rationally be expected, and his condition is, in fact, deteriorating from multiple complications and conditions, including but not limited to repeated instances of pneumonia, fungal meningitis, bacteremia, bed sores that cannot heal, and broken bones that cannot be repaired, in addition to the original traumatic brain injury he suffered that has resulted in his remaining in a persistent vegetative state from which he will not recover. Furthermore, it appears that the incapacitated person may feel pain. Accordingly, there was no error in the judge's findings that the incapacitated person is being kept alive only because of the shunt or drain; that upon removal of the shunt or drain, he will die in a matter of days; that he has no conscious thought; and that he can probably feel pain.
With regard to the judge's conclusion that the incapacitated person would not wish to live in such a state, the judge considered the parents' views, including that the father is hoping for a miracle, as well as the opinion of the incapacitated person's attorney and the guardian ad litem. The judge advised the parents on September 27, 2012, that he would hear from any medical professional, religious advisor, friend, or family member whom the parents would like to have testify. The judge indicated in his findings and memorandum that he balanced all of the substituted judgment factors and determined that the incapacitated person would choose not to continue to live in these circumstances and that he would choose to have the shunt or drain removed. In addition to ordering that the treatment providers withdraw all artificial life support, the judge provided the parents with three weeks to prepare for the withdrawal, and ordered that appropriate comfort measures be employed.
The comfort measures are designed to prevent all possible pain or suffering during the remainder of natural life after withdrawal of artificial support. They include, but are not limited to, continuing suctioning of respiratory passages, hydration, feeding, treatment of a decubitus ulcer, and pain medication.
After review of all of the material submitted and the argument of the parties, we conclude that the judge did not err as a matter of law in making that determination. In fact, the judge's findings and conduct of the proceedings “make it manifest that the utmost care was devoted to the determination of [substituted judgment].” Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
Order dated October 5, 2012, affirmed.