Opinion
No. 404,369.
Decided September 19, 1991.
Isaac, Brant, Ledman Becker and Thomas N. Taneff, for co-guardians.
Arter Hadden and R. Douglas Wrightsel, guardian ad litem, for Dawn M. Crum.
This matter came before the court on the 28th day of August, 1991 to consider the co-guardians' application for authority to withdraw nutrition and hydration from their ward, Dawn M. Crum. Representing the co-guardians was attorney, Thomas N. Taneff. Also appearing was R. Douglas Wrightsel, appointed by this court as guardian ad litem for the ward. The matter was heard on record.
Based on the case file and evidence adduced at this hearing, the court finds the following facts.
Dawn M. Crum was born December 15, 1973, the only child of Dillman L. and Diana M. Crum. Dawn had a typical, normal, and active childhood until March 23, 1986 when she acquired viral encephalitis and rapidly deteriorated into acute epilepticus and acute respiratory arrest requiring intubation. She has remained in a chronic vegetative state since that time.
Dawn has been placed at the Northland Terrace Nursing Home in Franklin County, Ohio, where she receives nutrition and hydration from a feeding gastrostomy tube and tracheostomy.
Dawn's parents were appointed as co-guardians of her person on February 15, 1991. On July 3, 1991, the co-guardians filed their application to have this court authorize them to withhold nutrition and hydration from Dawn. It is the opinion of the co-guardians that Dawn no longer has any quality of life and that providing nutrition and hydration constitutes cruel and inhumane treatment. The court appointed R. Douglas Wrightsel as guardian ad litem for the ward and also appointed Dr. John Drstvensek to serve as independent physician.
It is well established and undisputed that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. As early as 1914 Justice Cardoza wrote in Schloendorff v. Society of New York Hosp. (1914), 211 N.Y. 125, 129-130, 105 N.E. 92, 93-94, that "every human being of adult years and sound mind has a right to determine what shall be done with his own body."
More recently, the United States Supreme Court in Cruzan v. Director, Missouri Dept. of Health (1990), 497 U.S. ___, 110 S.Ct. 2841, 111 L.Ed.2d 224, assumed for the purpose of its discussion that for a competent person there was a constitutionally protected right to refuse lifesaving hydration and nutrition.
The question that is brought in the application before this court is whether an individual who is incompetent, both mentally and due to age, also has the right to terminate or refuse nutrition and hydration. In order to properly decide this issue the court must review the case law, the guardianship statutes, and the legislative intent of the Ohio General Assembly.
Ohio courts have dealt with the issue of termination of life sustaining care or nutrition and hydration through two reported decisions. In Leach v. Akron Gen. Med. Ctr. (1980), 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809, the probate court permitted the removal of a respirator pursuant to a constitutional right to privacy while in Couture v. Couture (1989), 48 Ohio App.3d 208, 549 N.E.2d 571, the appellate court prohibited the withdrawal of nutrition and hydration from a comatose patient in a persistent vegetative state with no realistic prospect of recovery when the withdrawal would likely result in the death of the patient.
The Leach decision followed the guidelines set forth in In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647. On April 15, 1975 Karen Ann Quinlan ceased breathing for two fifteen-minute periods. As a result, her examining physician diagnosed her as being in a "chronic vegetative state" which another expert defined as a "subject who remains with the capacity to maintain the vegetative parts of neurological function but who * * * no longer has any cognitive function." At the time of the decision, Quinlan's physicians and the other experts who testified believed that she could not survive without the assistance of a respirator to assist her in breathing. The prognosis was that she could never be returned to cognitive or sapient life; however, she did not meet the medical definition of "brain dead." Quinlan's father applied to be appointed her guardian so that he could request that the treating physicians terminate the use of the respirator.
In reaching its decision, the court relied upon the constitutional right of privacy. Recognizing that the United States Constitution does not mention any rights of privacy, the court cited Supreme Court decisions such as Eisenstadt v. Baird (1972), 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, and Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, which guarantee these rights. In Griswold v. Connecticut (1965), 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, 514, the Supreme Court found an "unwritten constitutional right of privacy which existed in the penumbra of specific guarantees of the Bill of Rights `formed by emanations from those guarantees that help give them life and substance.'" Likening the right to refuse medical treatment to a woman's right to abortion ( Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147), the Quinlan court held that the concept of the right of privacy was broad enough to encompass a patient's right to refuse treatment. Thus the right of privacy would permit a competent individual to decline treatment unless there was a compelling state's interest which would override that right.
Having held that a competent individual could refuse treatment, the court then turned to whether the right existed for an incompetent:
"If a putative decision by Karen to permit this noncognitive, vegetative existence to terminate by natural forces is regarded as a valuable incident of her right of privacy, as we believe it to be, then it would not be decided solely on the basis that her conditions prevent her conscious exercise of the choice. The only practical way to prevent destruction of the right is to permit the guardian and the family of Karen to render their best judgment, subject to the qualifications herein stated, as to whether she would exercise it in these circumstances." 70 N.J. at 41, 355 A.2d at 664.
Although Quinlan dealt with the withdrawal of a respirator, the United States Supreme Court dealt with the withdrawal of nutrition and hydration in Cruzan, supra. The Cruzan decision consisted of three Justices joining in the majority opinion, two separate concurring opinions, three Justices joining in a dissenting opinion, and one separate dissenting opinion. Through the multiplicity of opinions, eight Justices concurred that there was a right to withdraw nutrition and hydration. The argument among these Justices was to the state's role in allowing the withdrawal of the life-sustaining care.
Nancy Cruzan was incompetent from sustaining severe injuries in an automobile accident. It was estimated that she had been without oxygen for twelve to fourteen minutes causing permanent brain damage. Cruzan remained in a coma for approximately three weeks and then regressed to a permanent unconscious state. After it became apparent that Cruzan was not improving, her parents requested the hospital to terminate the nutrition and hydration. The trial court, relying on conversations between Nancy Cruzan and her roommate as to her intent, found that a person in the position of Cruzan had a fundamental right under the state and federal Constitutions to refuse or direct the withdrawal of death-prolonging procedures. This decision was reversed by the Supreme Court of Missouri, stating the conversations upon which the trial court relied were not clear and convincing evidence of Nancy Cruzan's intent. The case was appealed to the United States Supreme Court.
In its decision, the Supreme Court stated at 497 U.S. at ___, 110 S.Ct. at 2851, 111 L.Ed.2d at 241-242:
"The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."
However, the court would not accept the argument of the petitioners that an incompetent person should possess the same right to refuse life-saving hydration and nutrition as is possessed by a competent person. An incompetent individual cannot assert the right, the right must be asserted by a surrogate decision maker. The court recognized that Missouri had granted the power of a surrogate decision maker to act for the individual in certain instances, but in so doing, Missouri had established certain procedural safeguards to assure that the actions of the surrogate conformed with the expressed intent of the individual. Evidence of the individual's wishes must be established by clear and convincing evidence. The question in Cruzan was whether the United States Constitution forbids the establishment of this procedural requirement by the state. The argument was not whether there is a "right" for the surrogate decision maker to refuse or terminate life-sustaining care including nutrition and hydration but rather to what degree the state may impose safeguards upon that ability of the surrogate decision maker.
Both Cruzan and Leach required the courts to balance the individual's constitutional rights against the relevant state interests. Leach referenced the individual's constitutional right to privacy and the Cruzan case cited the individual's constitutional liberty interest under the Due Process Clause.
The Leach court reviewed four relevant state interests which may be compelling enough to outweigh the constitutional right to privacy: preservation of life, protection of third parties, maintenance of the ethics and integrity of the medical profession, and the prevention of suicide.
With regard to the first state interest, preservation of life, this court can find no benefit to the state of Ohio by preserving the life of Dawn M. Crum. Crum is a child not quite eighteen years of age. Although Dawn had a typical normal and active childhood until age twelve when she acquired viral encephalitis, she has since been in a chronic and vegetative state for approximately five years. She is unresponsive to commands of any kind and she receives nutrition and hydration from a gastrostomy tube and a tracheostomy. All medical avenues have been exhausted and her family merely watches her continue to physically deteriorate with no hope of ever improving. It is the conclusion of this court that the state of Ohio has no interest in the preservation of the life of Dawn M. Crum.
The second state interest is the protection of third parties. Dawn M. Crum has no children or a spouse who is dependent upon her. Her next of kin are her parents, who have stood by her side during her long illness and are in agreement with the application to terminate the life support. Two other relatives, an aunt and a cousin, also stated that they concur in this decision. This court concludes that there are no third parties who will be injured by the termination of the life-sustaining care. The interests of the third parties are meaningful, but do not outweigh the rights of Dawn M. Crum either individually or through her surrogate to make life-sustaining health care decisions.
The third interest of the state has been enumerated as the maintenance of the ethical integrity of the medical profession. A discussion of the ethical integrity of the medical profession has been presented in a multitude of cases commencing with the Quinlan decision. No authority has been presented to this court to indicate that the withdrawal of extraordinary life support for a patient in an irreversible permanent and vegetative state is inconsistent with any of the canons of medical ethics. The two physicians who testified, Dr. Drstvensek and Dr. Hackman, stated it was both ethically and medically appropriate to remove the nutrition and hydration. Therefore, it is the conclusion of this court that the ethical integrity of the medical profession does not outweigh the right of Dawn M. Crum, individually or through her surrogate, to make the decision to terminate nutrition and hydration.
The final state interest which has been discussed in right-to-die cases is the prevention of suicide. Suicide requires an affirmative action to terminate one's life with the specific intent to do so. Withdrawal of nutrition and hydration, much like the withdrawal of a respirator, is merely an intent to forgo extraordinary measures and allow the body to cease functioning by natural means. It is the conclusion of this court that the prevention of suicide is not a state interest at issue in this case.
It is the conclusion of this court that the interests of the state of Ohio do not outweigh the interests of Dawn M. Crum and therefore this court has the power to protect her interests pursuant to existing case law and authorize the guardian to terminate nutrition and hydration.
Since the Leach decision, the Ohio General Assembly has dealt with the issue of surrogate decision makers. The 118th Ohio General Assembly passed Am. Sub. S.B. No. 13 in 1989, which allowed an individual to appoint an attorney in fact for health care decisions. The statute specifically limited the power of the attorney in fact to terminate nutrition and hydration only in cases where death was eminent or the continued delivery of nutrition and hydration could not be assimilated or would shorten the principal's life.
Following the enactment of Am. Sub. S.B. No. 13, the Court of Appeals for Montgomery County in Couture v. Couture (1989), 48 Ohio App.3d 208, 549 N.E.2d 571, stated in its syllabus:
"The public policy of this state, as announced by the General Assembly in its enactment of R.C. 1337.11 through 1337.17, forbids the withdrawal of hydration or nutrition from a comatose patient in a persistent vegetative state with no realistic prospect of recovery, where the withdrawal of nutrition or hydration is likely to result in the death of the patient. Such withdrawal is prohibited notwithstanding previous oral statements of the patient himself that he would not desire the use of artificial life support to prolong his existence."
In the next General Assembly, the General Assembly passed Am. Sub. S.B. No. 1, which becomes effective October 10, 1991. The bill amends the power of attorney for health care statute, adopts a modified version of the uniform rights of the terminally ill act otherwise known as a "living will," and provides for individuals who have not executed a health care power of attorney or a living will. This bill has affected the Crum case in various respects. It expresses the legislative intent regarding the Couture interpretation of Am. Sub. S.B. No. 13. Section 5 of the bill states:
"The General Assembly declares that its several intents in enacting Amended Substitute Senate Bill No. 13 of the 118th General Assembly did not include any intent to affect the ability of competent adults or the guardians of incompetents or minors to make informed health care decisions for themselves or their wards." (Emphasis added.)
Thus, it is the express intent of the legislature to allow the guardian of a minor to be empowered to make health care decisions regarding the care of the ward.
Am. Sub. S.B. No. 1 specifically allows the probate court to order the withdrawal of nutrition and hydration for an adult patient in certain instances where a prior living will has not been executed. R.C. 2133.09. In order to authorize withdrawal of nutrition or hydration, the court must first find that the individual is and has been in a permanent unconscious state for the preceding twelve months, or the individual is in a terminal condition. In addition, the court must find the consent of a given class of individuals has been given to the withdrawal of life-sustaining treatment. Finally, the court must determine that the nutrition and hydration will not or will no longer provide comfort or alleviate pain for the individual.
Notwithstanding the effective date of Am. Sub. S.B. No. 1, the legislature has indicated its intent for public policy by the passage of the Act. It is the conclusion of this court, in accordance with the Cruzan decision acknowledging the right of the state to establish procedural safeguards to protect an individual's due process rights, that the Ohio Legislature, in establishing its procedural safeguards, has expressed its intent that the probate court is empowered to authorize the withdrawal of nutrition and hydration.
Evidence that this legislative intent is extended to minors is shown by the enactment of S.B. No. 46, effective January 1, 1990, dealing with the power of the probate court and the guardian to control medical decisions on behalf of the ward. R.C. 2111.50(B) states:
"* * * In connection with any person whom the probate court has found to be an incompetent or a minor subject to guardianship * * * the court has * * * all the powers that relate to the person and estate of the person and that he could exercise if present and not a minor or under disability, except the power to make or revoke a will." (Emphasis added.)
R.C. 2111.50(F) states:
"When considering any questions related to, and issuing orders for, medical or surgical care or treatment of incompetents or minors subject to guardianship, the probate court has full parens patriae powers unless otherwise provided by a section of the Revised Code." (Emphasis added.)
It is quite clear that the legislature intended, in the enactment of the above statutes, to ensure that a minor ward shall not lose his right to consent or refuse to consent to medical treatment because of his incompetency, such right being encompassed in the individual's liberty interests. Clearly, the legislature's intent is to place the responsibility of ensuring these rights upon the appropriate guardian and the probate court.
Having determined that the probate court has the jurisdiction and power to authorize the guardian of a minor to refuse or terminate life-sustaining care of his ward, the court must determine whether such authorization is appropriate in the within case. In order to make that determination the court must review the filings, the testimony of the two doctors and four lay witnesses and the recommendations of the guardian ad litem.
Both doctors stated that, in their opinion, the ward is in a chronic vegetative state with no possibility of recovering, that she has no insight and no cognitive functioning. The doctors further stated that she has inconsistent responses to stimuli but that such responses are only reflexive and noncognitive. It was the opinion of the doctors that the withdrawal of nutrition and hydration would be of no discomfort to the ward and that she would not know nor feel any pain as a result thereof. The medical testimony indicated that since Dawn M. Crum has been in this chronic vegetative state for a period of six years, the doctors could conclude with medical certainty that there was no hope of recovery for the ward. It was their further testimony that, in their professional opinion, it was both ethically and medically appropriate to remove the nutrition and hydration which would allow her to die peacefully.
The four lay witnesses who testified were her mother, Diana M. Crum, her father, Dillman L. Crum, her aunt, Roberta Hornsby and her cousin, Jerry Welsh. All of them knew Dawn since her birth. All four lay witnesses testified that she was a normal healthy child until the age of twelve when, after a prolonged staring episode and a trip to the hospital, she suffered prolonged seizure activity and acquired viral encephalitis on March 23, 1986. From that time forward they testified that she has remained comatose, in a fetal position, with no communication skills or cognitive functions. The lay witnesses further testified that Dawn expressed her concern regarding a foster child brought into her home who suffered from spina bifida. The foster child, D.J., was confined to a wheel chair and was severely handicapped. Dawn advised her parents and friends that it was unfair for D.J. to have to live that type of existence and she would not want to do so. From her comments, the lay witness inferred that Dawn would not want to be sustained in the manner in which she currently lives.
The co-guardians, who are also her parents, consent to the withdrawal of nutrition and hydration stating that they believe it is in their daughter's best interest to allow their daughter to die peacefully.
Although a multiplicity of tests have been used in determining whether or not life-sustaining care or nutrition and hydration should be withdrawn, the two most prevalent tests are the substitute judgment test and the best interest test. The most reliable test is the substitute judgment test, attempting to determine the wishes and desires of the individual and having a surrogate decision maker implement those previously made desires. In the within case, Dawn M. Crum was only twelve years of age at the time she deteriorated into her chronic vegetative state. At such an age she did not have the experience nor the insight to make informed decisions as to her future health care. However, Dawn was exposed to a severely handicapped individual and expressed her opinion that she felt she would not want to live in a severely handicapped situation. From that evidence the court can conclude that Dawn, if she were aware of her present condition, would not want to remain in her current state.
Irrespective of the substitute judgment test, the court has the ability to enter its decision based upon the best interest of the individual. R.C. 2111.50(C) specifically states that in making determinations regarding the guardianship the court shall consider the best interest of the ward. In addition, pursuant to R.C. 2111.50(F) previously quoted, the probate court has full jurisdiction to consider any question relating to medical or surgical care or treatment.
It is not the intent of the court to construe or determine the quality of life of the ward herein. Rather, the court must determine the best interest of Dawn M. Crum and her family in deciding whether to authorize the withdrawal of nutrition and hydration. Testimony indicates that, to a reasonable degree of medical certainty, Dawn M. Crum will not recover from her chronic vegetative state. Evidence revealed that her hands are curled and she needs to have constant physical therapy to keep her limbs from contracting further. Aides must roll her over and her muscles must be frequently massaged to prevent accelerating her deterioration. Her legs and arms are turned and drawn up and she must wear a mouthpiece to prevent chewing of her lips and tongue. She makes no noise except for her breathing which at times is very raspy and congested. She has no ability of movement other than occasional opening of the eyelids at which time the eyes continue to remain totally unresponsive. She suffers from different types of infections and her body temperature fluctuates.
Considering her physical state and her lack of cognitive function along with the testimony of the physicians that the withdrawal of nutrition and hydration would not cause any discomfort or pain to her and considering the testimony of her family as to her physical deterioration, it is the opinion of the court that it is in the best interest of Dawn M. Crum to authorize the withdrawal of nutrition and hydration and allow her to die peacefully, painlessly, and with dignity.
Therefore, it is the order of this court that the co-guardians are hereby authorized to direct the treating physician and health care provider to withdraw the nutrition and hydration being provided to their ward, Dawn M. Crum.
So ordered.