*1 18, hearing. bidding first March following acts notice and formal The advertised 14, April judge opened nor a were 1987. The commissioner neither bids reject- quasi-judicial May highest 1987 the bid was Long officer. See v. Bates On irresponsibility respon- County Hosp., ed for financial Mem. 667 S.W.2d (Mo.App.1983). argues Sterling high the bidder. The commissioner dent was declared appeal July 16 The suits were filed that there was no effort to obtain review now 536.150, gener- summary judgment was under but section is a 1987 and § 12,1987. circum- provision, designed facilitate entered November These al review delay. limit do not indicate undue decisions rather than to stances administrative small, by accepted not The amount of the bid is access the courts. The section is standards, procedures the but a other such as the state’s substantial exclusive of orga- nonprofit appellants the amount for individuals or declaratory judgment action indeed, suit, need undue The nizations. There for present resorted to. expense closing, the of elemen- appropriate action haste the would be an within process appellants’ lim- unre- contemplation time tal due the of that section. No expressed present claims. it is 536.150. So the solved § the commenced to review properly action eq- claims of appellants have stated commissioner’s valuations. is a cognizance. The court below uitable claim, possessed pow- the equity, that full respondents essentially, court If chancery. in not the case were terminat- appellants guilty were of laches ers the by summary judgment appellants the bringing had ed suit until the commissioner opportunity to deprived be rejected greater part of their claims would preju- litigate their claims and would be property for sealed bid- and advertised com- Laches, decision ding. defenses some- diced the unilateral related we “estop- administration. This missioner of times referred to as “waiver” or simply should not countenance. pel,” equitable defenses which summary judgment. cannot ruled on re- judgment and I would reverse on a Application depend laches con- proceedings for further mand case finding appellants guilty had been my opinion. sistent waiting delay in until of unconscionable property and the bids had been received
sold, undertaking chal- then
lenge might It be said in the sale. did contrary position
of a lessees received, know, were before the bids accepted fall far short bid would CRUZAN, co-guardians, By Beth thought At one bidder their claims. least Cruzan, CRUZAN, Joyce Jr. & Lester L. $1,500,000. property was worth Respondents, respon- financially Had that bidder been v. sible, resulting provid- sale would al., pay HARMON, Appellants, whatever value ed sufficient funds to Robert et im- their appellants could establish for v. surplus for the state. provements, with McCANSE, Thad will be able the court below On remand Appellant-Guardian Ad Litem. appellants and of weigh equities of the No. 70813. get the purchaser, who stands to now one much than at least property for less Missouri, Supreme Court of if Perhaps, thought it was worth. bidder En Banc. the commissioner’s trial court found 16, 1988. Nov. inadequate, improvements valuation Rehearing Dec. 1988. Denied figure as to so bidder would raise make the lessees whole. as to valua- decision commissioner’s January
tion was transmitted
ROBERTSON, Judge. persistent vegeta- Cruzan lies Hospi- tive state the Mount Vernon State Cruzan, Jr., Joyce tal. Lester L. Cru- zan, co-guardians, parents request- employees hospital ed terminate *3 hydration Nancy. for artificial and nutrition Gen., Webster, Atty. L. William Robert carry hospital’s employees refused Presson, Gen., Atty. Ass’t. North- Robert authority request from a out this without cutt, Counsel, Dept, Missouri of Gen. declaratory court. The Cruzans filed a McCanse, Health, City, Jefferson Thad C. seeking judgment judicial action sanction Mouton, Carthage, appellants. David B. for Following hearing, their wishes. directing trial court entered its order City, E. Colby, William H. Kansas Walter Missouri to employees the State of Williams, respondents. Joplin, for co-guardians of the request “cause record, Phillips, Carter G. counsel hydration nutrition or to be car- withdraw D.C., Haddad, Washington, Mark E. Mark that out.” The trial court held to the ried Thornhill, Johnson, City, A. Kirk B. Kansas 459.055, 459.010(3) and extent Sections Hirshfeld, Ill., Chicago, for Edward B. ami- public policy set forth a RSMo cus American Medical Ass’n. curiae Assembly prohibiting the withhold- General Jr., Everson, City, hydra- E. for of nutrition and David Kansas and withdrawal curiae, circumstances, Academy all such statutes American of Neu- tion under amicus Nancy liberty, due rology. violate Cruzan’s process equal protection of law and under Herr, Maryland, Stanley University of S. constitutions. Both the state federal Law, Baltimore, Wolf, Md., Blake School guardian appeal- and the ad litem state Jr., Marzen, Joplin, Bopp, Thomas J. James presented: single May is ed.1 A issue Nimz, Avila, Kealy, Mary Teresa M. Daniel guardian hydra- order that all nutrition and Barkow, Legal for Joel M. Nat. Center incompetent an tion withheld from ward Disabled, Inc., Dependent In- Medically vegetative state, persistent in a who is who Assn, curiae, Ind., for amicus dianapolis, meaning of Sec- neither dead within and the for Retarded Citizens the U.S. 194.005, terminally nor ill? tion RSMo Advocacy Task Force of the Ethics Const, V, jurisdiction. Mo. art. We have Nursing Group. Home Action find trial court 3. Because we § III, Scofield, City, law, York R. New erroneously Giles declared the we reverse. Louis, Watters, D. St. for amicus Richard I. curiae, Dying. Concern For Murphy review case under v. We this Louis, Nangle, Fenella Jane Adams St. 1976). Carron, (Mo. banc S.W.2d Gasner, Cohen, N. Rouse, Elena M. Rose the trial court “will be Wasserman, City, New York for Richard there is no substantial sustained ... unless Right to for the Die. amicus curiae Soc. it, against unless it evidence Louis, Cole, amicus curi- S. St. for James evidence, it weight unless errone ae, for Life. Citizens Missouri law, or unless errone ously declares applies the law.” ously Louis, Boozang, for M. St. ami- Kathleen a.m., January the Mis- curiae, System 12:54 SSM Health Care At cus dispatched Trooper Ethics, Highway Patrol St. souri for Health Care the Center single car scene of a Dale Penn University Medical Louis Center. pursue guardians neys ad litem was guardian finds himself in ad litem believing Nancy's predicament highest state in view that it is court in the matter feeding impression discontin- to have the tube “best interest is a case of first of the fact that this ued,” "feeling appeal should be but State of Missouri.” in the responsibility to her as attor- made because our accident in Jasper County, Missouri. Penn maintained and are the normal within limits female; (2) arrived six minutes later to find of a thirty-year-old she is Beth lying ditch, Cruzan face down except “oblivious to her environment approximately thirty-five feet from her responses perhaps sound and reflexive overturned trooper vehicle. The painful stimuli”; (3) examined suffered she anoxia of Nancy and found her without detectable resulting enlarge- the brain in a “massive respiratory or cardiac function. filling ment of the ventricles with cerebro- spinal fluid in the where the area brain has a.m., At 1:09 Paramedics Robert degenerated” and “cerebral cortical Maynard Williams and Rick arrived at the atrophy irreversible, permanent, progres- scene; accident they immediately initiated ongoing”; (4) highest sive and “her cogni- Nancy. By a.m., efforts to revive 1:12 gri- tive brain function is exhibited cardiac respira- function and spontaneous macing perhaps recognition ordinarily tion had recommenced. The ambulance painful stimuli, indicating experience *4 transported Nancy crew to the Freeman pain sound”; (5) apparent response to Hospital exploratory surgery where re- spastic quadriplegic; (6) she is a her four vealed a of laceration the liver. A CAT extremities are contracted with irreversible scan significant showed no abnormalities of damage muscular and tendon to all extrem- attending her physician diag- brain. The ities; (7) cognitive “she has no or reflexive probable nosed a cerebral contusion com- ability to or swallow food water to main- pounded by significant (deprivation anoxia tain daily her needs” essential and that oxygen) of of unknown duration. The trial “she ability will never her judge deprivation recover to swal- oxygen found that a satisfy low sufficient her needs.” approaching brain six minutes [sic] would sum, Nancy diagnosed persist- as in permanent result a damage; brain vegetative ent She best state. is not dead.3 period Nancy’s estimate of the ano- xia She terminally experts is not ill. Medical twelve to fourteen minutes. testified that she live thirty could another Nancy remained in a coma approxi- years. mately following three weeks the accident. Thereafter, improve she seemed to some- Nancy trial court found that ex- what and was able to take orally. nutrition pressed, serious “somewhat conversa- began. Rehabilitative efforts In order to injured tion” that if sick or she would not assist her recovery feeding ease the want to continue her life unless she could process, gastrostomy feeding tube was “halfway normally.” live Based on this surgically implanted 7, 1983, on February conversation, the court concluded that trial (then) with the her consent of husband. “she would not wish to continue with nutri- hydration.” tion and period time,
Over a substantial valiant efforts to Nancy place, rehabilitate took court concluded no state inter- without success. She now lies in the outweighed “right est Nancy’s liberty” Hospital.2 Mount Vernon State She re- co-guardians and that deny Nancy’s au- ceives the her totality hy- nutrition and thority to act under these circumstances through gastrostomy dration tube. equal protection deprive Nancy (1) respira- trial court found that employ- law. The court ordered state tion and artificially co-guardi- circulation are not ees to request “cause the (1) bearing respiration 2. The court determined State is When and circulation are maintained, the entire cost of artificially economic care. there is an irre- respiration spontaneous versible cessation of 194.005, 1986, provides: 3. Section RSMo circulation; legal purposes, For all the occurrence of (2) respiration When and circulation are human death shall determined in accord- maintained, artificially and there is total and customary ance with the usual and standards function, of all irreversible cessation brain practice, provided of medical that death shall including the brain stem and that such deter- not be determined to have occurred unless the physician. mination is made licensed following minimal conditions have been met: hydration veys both to and her loved ones and ans to withdraw nutrition out.” be carried she must die. sure, no carries a malevolent To be one II. Only litigation. to this the coldest motive said, single presents As we this case anguish these heart could fail to feel the guardian May for resolution: order issue parents terribly have these who suffered be withheld from an that food water many They any years. have exhausted in a incompetent persistent ward who is wellspring hope might earli- have
vegetative state
who is
alive
but
otherwise
accompanied
er
their now interminable bed-
194.005,
meaning of Section
within the
understand,
vigil. And we
for these
side
terminally
As
and not
ill?
RSMo
loving parents
seen
defeat
pointed out
in their
parties carefully
through
they
hold of a vi-
memories
one,
briefs,
thoughtful
is a
issue
broad
future held but
brant woman for whom the
invoking
authority
consideration of
promise.
wards,
incompetent
public
guardians of
Finally,
case
policy
regard
of Missouri with
to the termi-
we are asked to decide this
life-sustaining
this,
treatment and the
nation of
nor
as a court of law. Neither
rights
amorphous
of constitutional
mass
lays proper claim to omniscience.
court
“right
as the
to liber-
generally described
by all
human
We share the limits borne
privacy”, equal protection
“the
ty”,
beings, only too
of our earthbound
aware
process.
due
can-
perspective
and frustrated
what we
*5
role
a limited one to
not now know. Our
is
euphemisms
This is also
case which
only
is
which we remain true
if our decision
fore,
way
perhaps
readily find their
legal principles
rea-
firmly
founded
really at
reality
soften the
of what is
analysis. And we must remember
soned
But this is not a case which we
stake.
Nan-
Nancy is not
case not
for
are asked to let someone die.
that we decide this
ill.
terminally
many, many
is she
This is a
cy,
dead. Nor
others who
but
to allow the
loving family
case which we
asked
by the
not be surrounded
profession to
die
medical
make
with which she
blessed.
dehydration. The debate
starvation
death; it
is thus not
life and
here
between
A.
quality of life and death. We
is between
impression in
is a
of first
While this
case
of
to hold that the cost maintain-
are asked
Missouri,
of some of our sister
the courts
present
great
life
too
when
ing Nancy’s
grappled
similar issues.4
have
weighed against
benefit that
con-
states
Hospi
Kennedy
Memorial
John F.
following
Ct.App.1984);
4. is a list of state court cases
Bludworth,
(Fla.1984), Cor
v.
So.2d
tal
addressing
452
921
or removal
since 1976
initiation
D'Alessandro,
the value of
recognized
never
court
that Storar
life,
reject
firmly
it.” 370
quality of
we
competency to
mental
possessed sufficient
Instead,
the Massachusetts
N.E.2d at
extraordinary
render a decision as to
extraordinary
found the
nature
court
from
sustaining
Departing
procedures.
sufficiently massive
presented
treatment
Saikewicz,
York
analysis
the New
privacy person’s
warrant
invasion of
found it “unrealistic
Appeals
Court
undergoing treatment.
against
decision
he
attempt
whether
to determine
*7
prolonging
potentially life
Appeals
want to continue
In
New York Court
438
competent.”
he were
approach
treatment
if
different theoretical
advanced a
Instead,
275,
Noting pretend that “it is naive Supreme At about the time the Judicial to self-determination serves the Court of Massachusetts considered Bro making....” basis for substituted decision Appeals phy, the California Court of decid 1231, the 486 A.2d at court went on to Court, 179 Superior ed Bouvia v. Cal. *8 permit support the termination of life “if it (1986). Cal.Rptr. App.3d 225 297 is manifest that such action would further quadriplegic 28-year-old, There woman a patient’s the palsy sought best interests....” Id. afflicted with severe cerebral Thus, nasogastric where it is clear that the burden removal of the tube which her patient’s pain the and suffer- she was fed. The court characterized unavoidable during pendency apply Conroy of the 8. The court intended to its tests 9. Ms. died the in litigation. circumstances in which the had a life expectancy year. of no than one 486 A.2d more at 1231. 416 competent.” family Ms. “intelligent, very mentally court determined that Jobes’
as
Cal.Rptr.
Finding
225
at
it
make the
to remove
300.
“immateri-
could
determination
nasogastric
al
support.
that the removal
tube
her life
the court’s reason-
Given
eventual
ing,
family’s
will hasten or cause Bouvia’s
assume that
one must
death,”
Cal.Rptr.
225
the court held
right
at
that
is unbridled
to make
decision
right
dignity
to
her
in
given
patient’s
that Bouvia’s
live
life
inability
objec-
to voice
outweighed
peace
the state’s interest
Again,
and
to
the court was able
dis-
tion.10
preventing
preserving
in
life and
suicide.
in
entirely the state’s interest
count
life, finding
preservation of
it “difficult to
Jobes, 108
remote, general, spontaneous, and made deny Nancy ‘right to Cruzan’s liber- would Indeed, they deny coguardians casual circumstances. ty’ and that to examples of evidence closely track authority on her behalf would de- to act explicitly characterized as that we have prive equal protection her of of the laws.” at Conroy unreliable. ... 486 A.2d See support the trial court’s order Respondents (negating probative of ‘an off- value by urging has both a common wanting to remark about not live hand right to free from constitutional be law and certain circumstances made under “invasive, unwanted nonbeneficial” peak person young when treatment, right and that her health’).... incompeten- survives refuse such treatment guardians cy exercised be at 529 A.2d 443. as decisionmakers. substituted relying Conroy, the court Instead involving persistent- determined that cases Right Treatment A. Refuse required return ly vegetative patients recognizes Quinlan. law Assuming again persist- The common relating autonomy decisions vegetative patient choose to individual over ently able, From this if to one’s health welfare.11 support life terminated have all troublesome, of a given rightfully member civi- exercised over 10. This conclusion will, prevent against community, his is to rejection patient’s lized statements re- court’s good, physical His own either garding inherently harm others. unreliable. moral, He can- not a sufficient warrant. contrary would be if statements One wonders similarly compelled rightfully to do or to forebear decision en- and leave the unreliable so, for him to do it will be better because guardian. tirely in the hands because, happier, make because will him others, wise, or opinion do so would be 11. self-determination and individu- “The Mill, right.” Liberty, in Great Books autonomy deep history.” On our even al has its roots (R. ed. point, Hutchins At of the Western World Brophy, 497 courts N.E.2d *9 1952). proposi- citing inspiration. Mill for the regularly Aside from to Mill for turn J.S. announced, indulge seldom the power courts purpose which can be tion for ”[T]he
417 autonomy, hypothetical root of common devel- or to refuse—under cir- the law sent principle cumstances; circumstances, a oped battery the that occurs such under physician performs proce- when a a medical nor the of neither benefits risks treat- Hershley dure valid without consent. v. weighed fully ap- can properly ment be or Brown, 671, 676 (Mo.App.1983). 655 S.W.2d preciated. of
The doctrine informed consent arose recognition society places of the on a value Right Privacy B: The to person’s autonomy primary as the ve- Quinlan, it, and cases which an follow by person protect hicle a can patient’s right that a to nounce refuse body. his integrity of If one can consent to medical treatment also arises a consti from Thus, treatment, one can refuse it. as also Although right privacy. of tutional some necessary consent, corollary a to informed right courts find that embedded their right to refuse “The treatment arose. 12, argument privacy state constitutions patient’s ability integ- bodily to control his is most often founded on decisions rity significant only recog- ... one when Court, Supreme primarily United States right encompasses nizes also a that Wade, 113, 705, 410 U.S. Roe v. 93 S.Ct. 35 right to informed 486 Conroy, refusal.” (1973). Unfortunately, L.Ed.2d 147 A.2d at 1222. right privacy bare statement of A decision as to medical treat to extends treatment decisions seldom ment must informed. accompanied by any analysis reasoned prerequisites There three basic right scope application of its informed consent: the must refusal life-sustaining of treatment. the capacity judg- to reason and make ments, the decision must volun- be made Neither the federal nor the Missouri coercion, tarily pa- and without and the expressly provide right constitutions of understanding tient must have a clear of privacy. Walsh, In v. State 713 S.W.2d the risks and of proposed benefits 508, (Mo. 1986), 513 banc this Court was nontreatment,
treatment alternatives recognize right asked unfettered of along understanding with a full privacy. We declined to do so.13 This is nature prognosis. of disease and the consistent with our view that Missouri’s Wanzer, Adelstein, Cranford, Federman, interpreted according constitution must be Hook, Moertel, Safar, Stone, Taussig plain language & to a manner con Eys, Physician’s Van “The Responsibility understanding peo sistent with the of Patients,” Hopelessly Toward Ill ple adopted 310 New who it. State ex rel. Danforth Med., Eng. 955, (1984). Cason, 405, (Mo. J. 957 In the ab- v. 507 S.W.2d 408-09 banc elements, sence 1973). of these three con- right neither We thus find no unfettered Thus, sent nor refusal can privacy be informed. under our constitution that would definitionally impossible person for a right person refuse make an informed every decision—either to con- medical treatment circumstance.
temptation
decisions);
person’s
privacy
whether
determine
one
in medical
treatment
Matter
autonomy
Quinlan,
10,
(1976);
self-determination
exer-
can be
647
70 N.J.
355 A.2d
another,
though
very
cised
terms seem to
114,
Colyer, 99
Matter
Wash.2d
of Welfare of
alienable,
rights
indicate that these
are not
un-
(1983);
P.2d 738
Rasmussen Mitchell v. Flem
they
person
less so determined
for whom
(1987).
ing, 154 Ariz.
If
a
it must
fused to
an unlimited
such
past.
kind in
this
the
found to derive from the
consti-
be
federal
right
privacy
by
announced
tutional
to
Roe,
C. State’s Interests when a person ability who has lost the to direct her 1. medical treatment. In such a circum- right Neither the to refuse treat stance, we must tread due carefully, with absolute; ment nor the to privacy are regard incompetent persons those each against must be balanced the State’s whose wishes are unknowable but who interests to contrary. Four state inter would, able, if choose to continue life-sus- preservation ests have been identified: taining Any princi- treatment. substantive life, suicide, prevention of homicide and ple adopt pro- of law which we must also protection of interests of innocent third vide shelter for those who would choose to parties and the maintenance of the ethical despite live—if able to the incon- choose— integrity profession. of the medical See might venience that choice cause others. 459.055(1), 1986; Section RSMo Brophy, life, beginning adopts At of Missouri case, 497 N.E.2d only In this strong predisposition preserv- favor preservation state’s interest in the of life is 188.010, life. Section RSMo an- implicated. nounces the “intention of the General As- The state’s interest life em sembly of grant Missouri to separate braces two concerns: an interest humans, life to all born and unborn....” prolongation in the of the life of the indi 188.015(7), Section RSMo determines patient vidual and an interest in the sancti that a fetus is viable “when the life of the ty former, of life itself. As to the may indefinitely unborn child be continued preservation The concern for of the life outside womb natural or artificial of the normally lifesupport added). systems” (emphasis involves an inter Thus, 188.130, est prolongation in the Section RSMo denies a cause of life. the State’s preserving wrongful interest in action for wrongful life is life and very high birth. when “human life be [can] saved where the affliction is curable.” life, At the end of this State maintains its
Saikewicz,
...
ed). Rights Terminally The Uniform of the Ill
The state’s in prolonging (URITA) interest provided is Act many the basis for particularly valid in Nancy statute, case. of these acts. Missouri’s Sections terminally 459.010, is not ill. Her death is imminent seq., et RSMo is modeled only if URITA, she is denied food and water. Medi- after but with substantial modifi- cal evidence shows will continue a strong cations which reflect this State’s relatively life of normal duration if allowed interest in life.
basic sustenance. “life-sustaining URITA defines treat- sanctity
The state’s concern “any procedure of ment” as medical or inter- principle that, life rests on the pre- that life is quali- vention when administered to a worthy preservation cious and patient, only prolong without fied serve will regard quality. dying process.” 1(4). to its This latter concern is URITA Missouri § argue “death-pro- parties None of the that Missouri’s call such treatment a chose to applies in this case. longing procedure” Living which is defined as Will statute First, take until after the law did not effect procedure or intervention Second, if law Nancy’s accident. even which, applied patient, when effective, Nancy had had executed artificially dy- been prolong serve where, living import here is will. The statute’s ing process and in the expression policy of this attending physician pursuant as an State *12 standards, life. customary regard sanctity We usual and medical a short time here as to whether the death will occur within intend procedure right or is utilized. medical treat- whether not such common law to refuse procedure shall not Death-prolonging Living is the Will stat- ment broader than include policy the administration of medication Beyond ute. the broad statement procedure performance or of medical makes, is issue in this that statute not at provide necessary to comfort deemed finding in case. The trial court erred perform- nor pain to alleviate care or provisions unconstitutional. any procedure provide to nutri-
ance of hydration. or tion 2. (emphasis 459.010(3), Section RSMo 1986 equate It to the state’s inter- tempting is added). preservation of life with some est in the defines a “terminal condition” as URITA quality of life. As discus- measure that, “an incurable or irreversible condition shows, find sion some courts which follows without the administration of life-sustain- quality of life convenient focus when treatment, will, opinion in the of the of treatment. justifying termination attending physician, result in death within quality in But state’s interest URITA, 1(9). relatively short time.” § policy life. of the The broad statements 459.010(6)defines a “terminal con- Section distinction; legislature such nor make no “an or con- dition” as incurable irreversible issue, quality of life at shall we. Were death dition which is such that a will ... handicaps persons manner of with all regardless occur within short time might seeking to terminate find state application procedures.” of medical Instead, their the state’s interest lives. 2 of sets the recom- Section URITA out life; unqualified. in that interest to form of the declaration as mended life-sustaining treatment.15 termination Rights Balancing D. Patient’s alia, adds, inter Assembly Our General the State’s Interest following statement to the recommended 1. my to form: “It is not intent authorize casting pa- In the balance between or or omissions affirmative deliberate acts right refuse treat- common law tient’s my only permit rather to shorten right privacy ment/constitutional process dying.” natural Section 459.- life, acknowledge in the state’s interest we 015.3, In a consistent RSMo 1986. manner great majority courts allow the that the 459.055(5), provision, Section with this life-sustaining treatment. termination of 1986, plainly RSMo states: “Sections 459.- so, invariably find doing these courts condone, 010 to 459.055 do not authorize right to patient’s refuse treatment mercy killing or approve euthanasia nor preserving outweighs interest state’s permit any affirmative deliberate act or cases, prod- is the life. In some result or end life.” omission to shorten 2(b) regarding my medical treat- make decisions ment, of URITA reads: Section attending pursu- my physicians, I direct not, may, but be in the A declaration need Terminally Rights Ill to the Uniform ant following form: State, withhold or withdraw treat- Act of this DECLARATION process dying prolongs ment that an incurable or irreversible If I should have my necessary or to allevi- is not comfort my cause death within a condition will time, longer relatively pain. short and I am no able to ate of a hopeless prognosis; uct privacy brate burden of individual’s others, the court qual- right allows concerns with by particular inflicted kinds of treat- ity of life to discount the Tribe, state’s interest ment.” American Constitutional Quinlan, course, life. is the source in Law, (2d 1988). ed. Quinlan Although each instance. dealt Perhaps realizing difficulty of apply- terminally-ill person,
awith
it did so in ing a constitutional standard
relied
language sufficiently broad that courts cite
heavily
too
medical technology,
several
purposes.
it for much different
courts,
Eichner,
right
led
abandoned
hand, Quinlan
On the one
based its deci- privacy reasoning, focusing instead on the
Quinlan’s
sion on Karen
constitutional
right
common law
to refuse treatment.
privacy.
recognizing
While
The common law
to refuse
privacy rights
against
must be balanced
treatment is not absolute.
It too must be
life,
the state’s interest in
the court found
against
balanced
the state’s
interest
life.
that Karen’s treatment was so extraordi-
Quinlan
early application
From its
nary and so invasive that the state’s inter-
*13
Eichner,
terminally-
both which involved
paled
unstated,
est
comparison. Though
patients,
ill
courts have read the
in an
Quinlan
one can properly assume from
everbroadening manner. Brophy led the
that
prevail
the state’s
might
interest
were
way. There the court found that an incom
patient undergoing
the
ordinary medical
petent patient’s imputed desire to termi
treatment. This focus on the extraor-
nate
outweighed
treatment
the
in
state’s
dinary/ordinary
dichotomy provided a
despite
terest
the
patient
fact that the
had
ready
standard
patient’s
which the
inter-
fairly long
expectancy
life
if feeding con
est could be assessed in a constitutional
Farrell,
tinued. Bouvia and
re
In
108 N.J.
against
sense
the state’s interest
in life.
(1987),
This of focus the medical com- analysis Commentators do not find this munity away end, led courts from persuasive. constitutional logical Taken to its this foundations for decisions in this area. ultimately prognosis standard makes irrele- “The erosion of distinctions based on treat- vant. “This situation is to a conducive complicated ment analysis constitutional justification rhetorical of the cases—autho- since there no readily apparent rizing other patient’s merely choice is allow- standard which courts could dying process use to cali- an inexorable to contin- testimony family 16. The in this case tends to confirm terms what the ship wanted or the relation- two, this trend. Dr. Ronald Cranford indicated that between the artificial discontinue nutrition, hydration feeding through gastrostomy however administered tube and then treatment; Cranford, attempt through syringe spoon is medical the control- to feed her ling patient's feeding factors desires and those of would make no sense whatsoever in family. Nancy’s you her cases like "if decid- terms of the overall moral standard of decision making.” ed in terms what the wanted or in equation rhetorically side of the to reach a ue. While this distinction is result convenient, easily justifiable by find it is not we desirable. patient’s right re-
principle: where the constant, pa- is
fuse medical treatment prognosis
tient's condition and
A.
Tribe,
longer
relevant.”
Ameri-
seem to be
case.
We turn now to the facts of this
Once
can Constitutional Law at 1366.
guardians
her
invoke
common law
irrelevant,
pa-
prognosis becomes
right to refuse treatment and her constitu-
always
important
more
than
tient’s choice
right of privacy
tional
as bases for their
interest,
state’s
leads to
standard
They
stop feeding Nancy.
decision
Tribe,
judicial approval
of suicide.
su-
prognosis
hopeless,
that her
claim
pra at 1367.
her treatment is
and that
she
invasive
were
able,
she would refuse the continuation
only if
This result can
obtained
feeding.
will consider each
tubal
We
preservation
in the
of life
state’s interest
separately.
these
courts
substantially
discounted. Yet
manage to
states’
want-
find the
interests
First, the evidence is clear and convinc-
surrogates
ing and
to choose
allow
meaning-
ing that
never interact
will
patients by invoking nearly
death of
un-
again.
her
will
fully with
environment
She
refuse treatment. For an
bridled
persistent vegetative
in a
state until
remain
Quinlan.
explanation, we revert
totally dependent
death. She
on
Respondents
for her
contend
others
care.
Quinlan,
pre-
law
Prior
the common
patient’s
prevail
interest must
ferred to err
the side of life. Choices
*14
only to
medical treatment “serves
when
incompetents
preserve
made to
for
were
life
an incurable
prolong a
inflicted with
Quinlan
life,
changed
not hasten death.17
114,
Colyer,
In
99 Wash.2d
condition.”
re
Moving from the common
the calculus.
738,
(1983).
P.2d
660
743
life, Quinlan
prejudice
law’s
in favor
in life as
subtly
the state’s interest
recast
said,
prognosis
focus on
as
As we have
a
quality
(cognitive
interest in
of life
an
right-to-refuse
permitting the
a
for
basis
sapient),
struck a balance between
problematic.
treatment choice is
Where
Quinlan’s right to
quality of life and Karen
ill,
here,
terminally
patient is
not
of a
privacy
permitted
termination
pa-
diminished capacity of the
profoundly
rhetori-
sustaining procedure. By
life
certainty
that that condi-
tient and
near
replacing a
for life
cal device of
concern
inevitably to
change
not
leads
tion will
life,
quality
managed “to
the court
argu-
with
of life
The
quality
considerations.
accepted
affronting
previously
here,
avoid
Nancy
made
will not recov-
ment
in
Alexan-
reaching
norms”
its decision.
er,
statement that her
thinly
is but a
veiled
Directive”,
der,
living.
Clara
by
present
“Death
28 Santa
is not
life in its
form
worth
67,
(1988).
not
quality
L.Rev
82
Yet a diminished
life does
to cause death.
support a decision
however,
stated,
previously
As we
Second,
argues
of life.
that her
quality
interest
is not
counsel
state’s
took
inter-
The invasion
unqualified
The state’s interest is an
treatment
invasive.
in-
striking
place
gastrostomy
when the
tube was
in life. In
the balance between
est
hope
time
or her
with consent at a
when
right to refuse treatment
serted
patient’s
recovery. Presently,
the tube
privacy and the state’s interest
remained
merely provides
conduit for the introduc-
life,
arbitrarily
either
we
discount
Labrenz,
(Fla.App.1975); People v.
411
have ordered blood transfu
So.2d 53
Missouri courts
religious
618,
(1952);
and children
Petri
sions for infants
over
This second us to as- which does not cure can be withdrawn. hydration and nutrition sume that artificial permit we to think But ourselves “[w]hen are medical treatments. There is substan- preserves that care is useless if it disagreement point among phy- tial on this being human without re- embodied sicians and ethicists.18 Dr. Cranford so storing cognitive capacity, we fall victim Arguments testified at trial. on each side old delusion that failed if we we have compelling.19 temptation here is to cure is, then, cannot and that there little terminology legal allow medical to dictate to continue care.” Green, point “Setting principle. “Using explanations ... Feeding”, for Artificial Boundaries utility has for the courts. It removes the December, 1984, Hastings Report, Center responsibility for decisions that seem harsh (emphasis original). explained plainer language.” when Al- exander, Directive”, 28 Santa “Death The issue is not whether the continued (1988). testimony Clara L.Rev If the feeding hydration Nancy is medical Nancy experience trial would treatment; feeding pro- it is whether pain even if she were to die allowed is a burden to her. viding liquid dehydration starvation is to be be- Conroy. refuse We succumb lieved, argue is difficult semantic dilemma created medical deter- feeding by already conviction that tube treatment; minations of what those dis- place painful constitutes a invasion for her. prove legally tinctions often irrelevant. And common sense tells us that food and stated, For the reasons we do not believe illness, they water do not maintain treat a life. provided by hydration the care artificial guidelines permit Dying urges 18. AMA withdrawal. Concern for that "decisions to Opinion Opinions 2.18 of the Current apply, withhold or withdraw medical care and Council on Ethical and Judicial Affairs of the technology personal, are a matter of not medi- adopted Medical American Association in 1986 cal, judgment, and that such decisions should be pertinent part: reads in wishes, patient’s made in accordance with a pa- Even if death is not imminent but values and beliefs.” *15 beyond tient’s coma is doubt irreversible and Die, Inc., Society Right for the to avers adequate safeguards there are to confirm the right that there is a "fundamental to refuse accuracy diagnosis and with the con- life-sustaining right treatment" and that “that responsibility currence of those who have for permanently can be exercised on behalf of a patient, the care of the it is not unethical to individual.” unconscious life-prolonging discontinue all means of medi- System The Brief of the SSM Health Care cal treatment. Ethics, the Center for Health Care St. Louis Life-prolonging medical treatment includes University Medical Center states that ”[w]ithin artificially technologically medication and foundation, withholding the Christian supplied respiration, hydration. nutrition or treatment, including withdrawing of medical ar- treating terminally a ill or irreversible hydration, acceptable." tificial nutrition and patient, physician comatose should deter- The brief of the Association for Retarded Citi- mine whether the benefits of treatment out- the Ethics and times, zens of the United States and weigh dignity its burdens. At all Advocacy Nursing Task Force of the Home Ac- patient should be maintained. brief, however, Group, such In its amicus the American Medical tion assert that course states not Association that it is unethical as that set out the trial court would “threaten physician certain circumstances for a ply to com- right the affirmation and fundamental to and request surrogate with the of a people with disabilities. It interest in life of life-prolonging medical to withdraw treat- subject them to radical and insidious ment. discrimination based on their disabilities.” for Life The brief of the Missouri Citizens amicus curiae briefs filed in this other 19. argues the state nor federal consti- that neither split thinking. case illustrate the competent person to starve or tution allows Academy Neurology The American in its guardian certainly die of thirst and can make Nancy "prisoner states that is a amicus brief incompetent. that decision for an technology” and that she and her fami- medical ly should be set free. severely diminished to be sure. Yet if food oppressively and nutrition burdensome supplied, in this and water are she will not die. Nancy case. Nancy the fact that is alive Third, Given co-guardians argue that and that the of her treatment are burdens enough to “Nancy’s statements alone are her, not for we do not believe her excessive stop These this artificial treatment.” treatment, to refuse whether that in the tes statements are best summarized right proceeds from a constitutional that she timony of roommate privacy right to or a common law refuse present not want to continue her “would treatment, outweighs immense, clear hope But “in existence without as is.” fact of in which the state maintains peo formally expressed reactions to other vital interest. ple’s do medical condition treatment proof patient’s constitute clear Guardianship K Issues Jobes, citing 529 A.2d at intent.” A.2d 1209.
Conroy, 486
at
incompetent;
make
she cannot
concerning her
informed choices
in
earlier discussion
Our
about
therefore do not decide
treatment. We
requirements for
formed consent noted the
relating
authority
case
issue
this
truly
A
consent or refusal
informed.
competent persons
suspend
life-sus-
treatment,
to refuse
when that
decision
taining
face of terminal
treatment
bring
death, should be
decision will
about
illness or otherwise.
focus here is
Our
accept
as a
treat
as informed
decision
expressly
limited
those instances
refusal,
ment. If offered to show informed
receiving
person
which the
the life-sustain-
here
woe
the evidence offered
“would be
render a
treatment is unable to
decision
fully
inade
inadequate.
It is all the more
incompetency.
reason of
quate
support
result
a refusal that will
Gardner, 534
in certain death.”
In re
475.120.3,
pro
Section
RSMo
J.,
(Clifford,
dissenting.) As
A.2d
incapacitated
guardian
vides
Jobes,
said in
“All of the state
the court
“care,
provide
shall
the ward’s
ward
life-support
ments
attrib
education,
about
were
treatment, habilitation,
remote, general,
uted Mrs.
were
Jobes
power
to:
and maintenance”
has
spontaneous, and made in casual circum
(2)
the ward receives
Assure
closely
ex
they
Indeed
track the
stances.
that are
medical care and other services
explicitly
amples
that we
of evidence
needed;
Jobes,
characterized
unreliable.”
(3)
care,
protect
com-
Promote
Likewise,
A.2d
statements attribut
fort,
health,
safety,
and welfare of
similarly
Nancy in
case
able to
ward;
determining
purpose
for the
unreliable
(4)
required consents on be-
Provide
her intent.
ward;
half of the
....
*16
provision
no
for the
The statute makes
B.
treatment;
to the
termination of
life,
in
The state’s relevant interest is
contrary,
express, affirmative
places an
sanctity.
preservation and its
both its
duty
guardians to
that the ward
assure
expectancy
is
Nancy
not dead. Her
provides the
care and
receives medical
thirty years.
give
power
consent
guardian
to
total,
requirements,
care
while
no
find
statu-
purpose.
that
We thus
for
Nancy. The evi-
to
are not burdensome
argument
guard-
that the
tory
for the
basis
provid-
trial
care
guardian,
dence at
showed
authority,
to
possesses
as
ian
Nancy pain. Nor is that
ed did not cause
of medical treatment.
order
termination
her, given
particularly
for
care
burdensome
guardian pos-
Assuming, arguendo,
respond
not
to it.
that she does
of
power,
such
it must be derivative
sesses
incompetent maintains
rights
Finally, there
no evidence that
Having
person.
found that such
life is
terminally
quality
ill. The
of her
exist, Quinlan held,
rights
broadly
do
and
State does not
the constitu-
have
[T]he
precedential support,
right
authority
give
party
that the
tional
to
a third
without
absolute,
right
possibly arbitrary,
privacy
of
to refuse medical
veto
may
by surrogates
physician
treatment
over the decision of the
and his
be exercised
patient....
Any independent
interest
incompetency.
the event of
In this man-
parent may
have
the termination
ner a rationale was
to reach the
bom
end
daughter’s pregnancy
of
Quinlan:
the minor
is no
sought.20
language
Recall the
of
weighty
right
privacy
more
than the
only practical way
prevent
“The
destruc-
competent
enough
minor mature
right
permit
guardian
tion of the
is to
pregnant.
to have become
family
of Karen to render their best
judgment, subject
qualifications21
Planned Parenthood
Central Missouri
stated,
hereinafter
as to whether she would
52, 74, 75,
Danforth,
v.
U.S.
96 S.Ct.
exercise it
these circumstances.” 355 2831, 2843, 2844,
(1975).
V. feeding was very special facts. The tube principled legal basis which We find no implanted at a time when Nan- surgically coguardians in this case permits and cer- cy’s prognosis not so definite was In the choose the death of their ward. is, to the end that tain as it now legal that deci- of such a basis for absence long any chance remained maintained so as strongly in the face of this sion and State’s condition. The improvement in her for life, policy in favor of we choose to ques- stated if the case would not be authoritative life, rights respecting err on the require side the state could tion were whether persons incompetent who wish implanted, similarly when that a tube be despite severely quality of live diminished do not those near and dear life. proceed. implant should believe ap- is that the state Another distinction judgment of the circuit court is re- Nancy for so willing to maintain parently versed. lives, expense to her long she without her condi- parents or others concerned with J., BILLINGS, C.J., RENDLEN, authority opinion, finally, is not tion.1 The REINHARD, Special Judge, than the any procedure other requiring concur. feeding tube utilization continued HIGGINS, JJ., BLACKMAR deci- already place.2 Thus the separate opinions dissent in filed. its auto- applicability, and sion is of limited different situations application matic WELLIVER, J., separate dissents in Distinguishable should not be assumed. dissenting opinion filed and concurs respirators, radi- mechanical cases involve opinions of BLACKMAR transfusions, dialysis, surgery, blood cal HIGGINS, JJ. or, infection, chemotherapy, treatment of BLACKMAR, said, surgical implantation Judge, dissenting. as has been hope after all of amelioration feeding tubes substantially agree I with the law as has vanished. except that I expressed by Judge Higgins, other opinion frankly concedes that court is that the decision of the trial believe courts, unanimously “Nearly ... principles of com- supported by established wishing persons way to allow equity, and so find it unneces- found mon law and injured was allowed unnecessary but that her husband discus- This circumstance makes patient’s must be circumstance sion of whether the resources a dissolution. This to obtain Nancy requires, such as relativity directed to costs of care of values. indicates a alone though might resources be needed even these care, patient’s persons who liable for the simply statement fail to understand the 2. I support, might have no other means of opinion procedure principal that this others, dependents. ap- patient’s It such as the heroically "invasive.” time pears was married at the she *19 428 court,
die, ward, Very death of a what is cases reach or those who seek the best. few sought.” I this case would be to meet the end We of course are doubt whether Nancy lies by not bound the decisions of other courts before us but for the fact that authority, may adopt hospital. place primary of coordinate in a state I do not rules, others, unique differing emphasis patient’s expressions, on the ex- from all but case, of certainly pause departing cept possibly very we should before in the unusual books, overwhelming example I find no in the in from the course authori- which ty. Many judges struggled patient expresses other have the a view that all problems supports should made use with similar to the ones before available life be patient are opinions strug- us. Their demonstrate this of. Those closest to the best gle. proper positioned judgments It is often difficult to find the to make about conclusion, express patient’s words to a and it is best interest. easy struggles to criticize the of others. principal opinion In footnote 17 the cites task, however, is Our to decide cases rather courts ordered several cases which have philosophize. The conclusion of the than transfusions, procedures such as blood
judges have the issues who wrestled with religious objections parents. of the over signifi- great weight, is entitled to and is goal provide is to The state’s there in spite expression. cant of difficulties of procedures necessary give medical meaningful deny
I child life. A decision to believe that decisions about a by future should made those near and such treatment in the face of medical ad- be her, may policy dear to and that no state re- vice be considered irrational abu- quires may the state to in these deci- sive. Or it be said that the state intervene against principal opinion sions. The fails to con- the child’s interest balances views, judges parents’ religious me other which are con- vince who have problem wrong. dealt sidered outside the mainstream. I am sure with that courts which have ordered transfu- My disagreement principal opin- with procedures sions or other all have relied or fundamentally emphasis ion lies in its very strong acted on the basis of state, of the the interest of and the role very opinion. The Cruzans’ decision is represented by Attorney De- General. nature, different and I cannot conclude prolongation life cisions about are of that it is irrational or abusive. origin. recent For most of the world’s accept thought I that deci- history, presently parts most Nor would world, guardians such decisions would never arise sions of relatives as about technology sustaining necessarily require ju- not measures because the would be avail- agree I those able. Decisions about medical treatment dicial confirmation. with by hold that ordi- customarily patient, been made courts which relatives patient narily important if the decisions of this or those closest to the make court, infirmity, going is kind unless there is patient, youth because of without challenge.3 appointment noth- Formal unable to make the decisions. This is decisionmaking. guardian may requested, should not be but new substituted necessary. person upon always called to be the When state seldom relatives, may without close be desirable decisionmaker. guardian appoint person assumption, accept I not inher- medical treatment. consider decisions about that, principal opinion, our ent arguments I not find the about the technology, advanced the state must neces- do life,” “preserving and the in a decision state’s interest in sarily become involved about prolong statutory provisions of various using extraordinary measures to citation very daily support, particularly helpful. The ex- life. Decisions of this kind are made relatives, capital punishment demonstrates on the basis of istence of establishing relativity as to a of values medical advice and their conclusion Grant, Drabick, See, Cal.Rptr. e.g., Guardianship Cal.App.3d 245 In re re 1987); (1988). (banc Wash.2d 747 P.2d regard sanctity life without proposition that some lives are worth ivory quality. They dwell in Furthermore, “Living towers. preserving. statute, majority which the finds to Will” unimpressive suggestion *20 Likewise expression the policy “an of of this state be court, and that the conclusions of the trial sanctity life,” in regard fact with to of overwhelming majority courts of encourages pre-planned ter- allows the problem, open the which have considered mination of life. per- of the to wholesale euthanasia door defective, to not in a sons considered be but provision The absolutist is also infirm holding approaching Nancy’s. A condition prepared the state does not stand because precedent only partic- facts of is for the the life, preservation to finance the without open protect ular The courts are to case. cost, regard very to many the cases.4 In against incompetents abuse. particular Nancy this case the has state possession, is litigating its to accept proposition Least of all can I the Yet, keep ago, her. several years a re- that is as the Cruzans seek spected judge extraordinary needed treat- precluded by amorphous legislative some hospital ment which he life,” the in which was a policy “favoring so that the courts willing patient was not to furnish a may deny without this the kind of relief until huge deposit, appar- legislature advance and the state decrees otherwise. Mo. Under ently had to help Many open no desire out. courts Const. Art. Sec. are die people unavailability proper because to seek cases those who relief simply involving heroic medical treatment. It cannot actual controversies. The courts duty deciding preserv- said the state’s have the cases on be that interest they just. ing prolonging life basis of what consider is absolute. legisla- cannot shift our We burden say preserva- It is to unrealistic I depreciate capacity ture. Nor would absolute, regard tion of is an without our courts. common law would be quality life. I make this statement poor if jurists indeed such as Sir Edward only in the context of a in which the case had Coke and Lord Mansfield been unwill- judge trial has found there no ing to reach their conclusions about own chance for amelioration of condi- novel issues. principal opinion accepts tion. The grant my approach I to this would appropriate conclusion. It is to consider absolute, case is realistic rather than be- quality in making of life decisions possible express cause not it is absolutes extraordinary about medical treatment. per- such I am situations as these. Those who made decisions about such is a suaded that state better decision- matters without resort to the courts cer- Nancy’s parents. maker should than We life, tainly quality consider bal- respect though, if their decision even sim- against unpleasant ance this conse- situated, ilarly might elect we to continue quences patient. There evidence feeding of a one. There should loved Nancy may pain react to stimuli. If great judge. the trial be deference to she has awareness her surround- dem- appellants have the normal burden of ings, living her life must be a hell. She is error, onstrating which these defendants express anything herself do unable or to have not done. parents, at all to alter her situation. Her relatives, are her closest are best appropriately who able came family The Cruzan seeking feel for her and to decide what best court relief. The circuit before the judge applied for her. The state should not substitute its found the facts and properly impressed findings sup- for Nor I His decisions theirs. am factual law. legal his conclu- crypto-philosophers ported by cited in the the record and authority. overwhelming weight of about sions principal opinion, who declaim pending undoubtedly abling from needed treatment An would be offended itself absolutist state, by inquiry pro- prognosis. as to whether the dire do not have such others who longing Nancy’s expense, life at its is dis- own principal opinion attempts a.m., to establish summoned to the scene at 12:54 arriv- absolutes, expense ing but does so at the Nancy at 1:00 a.m. where he found doing human factors. so it unnecessar- lying face down in a ditch some 35 feet ily subjects Nancy close private driveway and those to her across a south and east family continuous torture which should from her .... overturned-vehicle which was grasping forced I to endure. am resting in a ditch on the west side of the me, say words which elude and so will not private driveway sky- with all four wheels more. ward. lifeless and not breath- Trooper when Penn examined her with-
I judgment. affirm the moving apparently out her. had ex- She *21 pired. apparently She was at a HIGGINS, eastbound Judge, dissenting. speed too fast for the conditions when her In my opinion, impor- the decision in this (north) ran car off the left side of the impression tant case in of first Missouri trees, pavement and struck some small opinion by rests on an unsound a tenuous mailbox and then swerved back across and majority judges sitting in the case. Ac- (south) pavement off the on the side cordingly, respect, and with due I dissent. through and ran a fence and overturned The trial court ruled that Ms. had Cruzan coming top several times rest on from be free unwanted intru- some 210 feet from the on the mailbox body by agents sion of her of the Elm north side of Road in the ditch of the State and ordered the defendant doctors to private driveway. expressed honor the wishes of Ms. Cruzan Carthage Department “The Fire was no- given authority and the consent and her Squad dispatched at 1:05 tified. 107 was guardians surgically for removal of a im- a.m.; command, Lieutenant Ed Nuse in planted support majority life device. The Firefighter driving, and Fire- Bob Smith appellate cites more than 50 decisions from fighter step. They Mike Lee on the back jurisdictions support and validate arrived at 1:12 a.m. Lee commenced a fact, findings the trial court’s conclu- baby reportedly search of the area for a judgment case; sions of law and the thrown from the vehicle while Lt. Nuse and yet, ironically, judgment reverses par- Smith of the went assistance by finding favor of Ms. Cruzan “that the Firefighter amedics with Smith administer- erroneously trial court declared law.” ing Nancy breathing. resumed CPR when view, majority my Because the acts in con- law, trary to the facts and because approximately “At 1:02 a.m. the Car- importance of the case and its effect thage Ambulance service at McCune- Missouri, rights I on the of the citizens of Hospital Brooks was notified Paramed- register my begins formal dissent. It Maynard ics Rick Robert Williams and entered by the trial court: dispatched in were an ambulance. On ar- a.m., Tuesday, January ap- they Nancy lying “On 1983 at rival at 1:09 found a.m., blue,’ proximately 12:50 Beth face down in the ditch ‘code i.e. in Davis Cruzan, ward, driving respiratory nee our was a 1963 total and cardiac arrest. She Sedan, alone, lacerations, on Elm Rambler Classic East had some facial lacerations (a/k/a Road), mouth, Nursery Road Krummel 2.1 within her cuts and massive swell- Highway only miles East of Alternate of the face. The U.S. evidence Missouri, Carthage, Jasper position, lying Southeast cause of death was her face County. Elm Road is a lane in a she position two east-west down the ditch asphaltic pavement, 18 feet wide on an could not No evidence of severe breathe. easterly uphill grade open explanation injury area. The head or other of ‘code pavement dry Cardiopulmonary weather was clear and the on blue’ was observed. re- January night. (CPR) The driver’s condi- a cool suscitation was commenced. She prior to the accident. An tion is unknown was unconscious. Advance reported Trooper procedures per 1:11 accident was Dale were instituted at a.m. Penn, Highway emergency room doctor at the Missouri State Patrol was orders of the hospital. placed period A tube was down her mum for the brain be without windpipe gain complete control of her oxygen causing permanent without some respiratory system and at 1:12 a.m. an I.V. duration, longer damage. The brain introduced, administering was medication damage. permanent the more the and sodium she had bicarbonate because ap- “Nancy’s recovery surgery from was been ‘down a Results while.’ were parently in a uneventful. She remained achieved 1:12 BP at about a.m. with a 60/0. three more she coma about weeks when by stethoscope It couldn’t be heard but appeared progressed to an uncon- a.m., by fingertips. could be felt At 1:13 scious state. She has never recovered pulse the heart monitor disclosed a rate improved February from this state. On per around 92 minute and BP She 80/0. husband, with the consent of her then spontaneous respiration per started 12 min- gastrostomy feeding a # 20 T-tube was ute, a rate normal for some adults. Suc- surgically inserted. This tube has been her returning tion ‘a and mu- lot of blood hydration source of nutrition and since a.m., being prepared, cous.’ At 1:56 after Mt. admission to the Vernon State Hos- transported she was to McCune Brooks pital. discharged She was from Freeman Hospital Emergency signs Room with vital 110/80, Hospital improved February 21, pulse of BP respiration spontaneous. Center, Regional Arrival was at 2:03 a.m. to St. John’s Medical Bra- *22 dy Facility, Joplin, Rehabilitation where re- “She was examined and it was deter- attempted for habilitative measures were mined that she should taken to Freeman discharged six weeks when she was essen- Hospital, Joplin, a distance of about tially unimproved unresponsive and to re- miles. After further to maintain a efforts orally, habilitation. She could not be fed condition, transported. stable she was being significant unable swallow a “Upon Hospital arrival at Freeman amount of food or water. Emergency Room she was still uncon- scious, requiring now respiratory manual grandmoth- “Her took her husband to his assistance, unresponsive painful stimuli er’s home where she was served round wearing and mass trousers. Her vital nursing professional the clock care. After signs were stabilized and she was taken to weeks, developed pneumo- or three she two surgery. nia, probably aspiration from food as a exploratory laparotomy feeding
“An disclosed a result of oral efforts and was re- laceration to her repaired. liver which was hospitalized for a short time and then re- Multiple facial repaired by fractures were grandmother’s turned to the home. surgeon. an oral It was noted she did not later, “A short time she was admitted to
require much sedation or anesthetic. nursing a local home where after six about Majzoub, neurosurgeon, “Dr. H.S. ex- days, she was admitted to Jane Chinn Hos- Nancy amined following the ICU sur- pital, City, Webb with fever of 107 from gery, reviewing a CAT scan of her head some kind of an infection. dis- She was showing significant abnormalities. He charged to be admitted to the Mt. Vernon upper hemispheric found the ventricles of Hospital State on October 1983 where essentially the brain normal in size with no patient. she remains evidence of any intracranial mass lesion or Petitioners, parents, ap- “Her were All systems appeared edema. her basal pointed guardians and conservators after diagnosis probable normal. The was cere- hearing January 1984 and Letters compounded by significant bral contusions duly issued. Her husband did not attend prognosis hinging anoxia with the on the inquire proceedings. A duration of her anoxia which was unknown marriage subsequently dissolution to him. decreed. “Estimates of the duration by primary range “Continuous observations anoxia from 6 to 20 minutes with probable givers, family attending physi- care her most duration 12 to 14 minutes. perhaps neurological Less than 6 minutes is the maxi- cians and a recent examination George Wong report dence finds the current medical condition of by Dr. unconscious, unresponsive to our remains is ward be as follows: atrophy and contrac- her environment with respiration That her circulation finger- tures of her four extremities. Her artificially are not maintained and within nails sometimes cut into her now wrists. year essentially normal limits for a 30 old spastic quadriplegic. She is a Her vital signs reported recently female with vital 130/80, regular, signs, pulse BP 78 and 130/80; pulse regular; BP 78 and res- respiration spontaneous per at 16 to 18 piration spontaneous per min- at 16 minute, essentially year all normal for a 30 ute. At no time has her electroen- old female. 2. That she is to her environ- oblivious cephalogram registered isoelectric or flat. responses except ment for reflexive permanent. Her is considered A condition painful perhaps sound and stimuli. recent CAT scan of her head reveals abnor- 3. That she has suffered anoxia of the suggesting up- malities severe irreversible resulting enlargement brain massive damage per hemispheric brain with mas- filling cerebrospi- of the ventricles with enlargement filling sive of ventricles from nal fluid in the area where the brain has cerebrospinal fluid because brain degenerated. This cortical atro- cerebral degenerating. degeneration irreversible, phy permanent, progres- atrophy called cerebral cortical which is ongoing. sive progressive from her initial condition re- highest cognitive 4. That her brain replacing The fluid is flected on CAT scan. grimacing function is exhibited there is no more the area where brain ordinarily pain- perhaps recognition permanent and tissue. This irreversible stimuli, indicating experience of ful apparent is the result of time condition pain apparent response and her to sound. initially duration of anoxia which was spastic quadriplegic. 5. That she is examining consulting feared *23 of her four 6. That she has contractures weight neurosurgeon. Her normal of 115 slowly progressive extremities which are pounds. pounds has now risen to about muscular and tendon with irreversible accident, Nancy resided “Prior to the damage to all extremities. Paul, year, her husband of about a with cognitive 7. That she has no or reflex- Elm Road from the acci- further east on ability to swallow food or water to ive employed on either dent scene. She daily her needs. That maintain essential graveyard at the 3 to 11 or the shift ability her to swal- she will never recover Foods. She is described a Schreiber satisfy her needs. low sufficient active, vivacious, outgoing, independent father, Petitioners, her mother and “The preferred to do for herself. person who co-guardians, seek this duly appointed and prior to her accident in year “About request their approval Court’s housemate, then discussions with her Superintendent of Respondent Lampkins, co-worder, expressed she friend and Hospital, Mt. to discontin- Vernon State feeling that she would not wish to continue by gas- hydration nutrition and ue further halfway living if be at least she couldn’t by Respon- trostomy and if refused tube lifestyle and other state- normal. Her approval then to dents after this Court’s suggest family and friends ments to re- Respondents carry out their direct present continue her she not wish to quest. would hope as it is.
existence without in only “The economicconsiderations by employer, and treatment Respondent’s “After examination rest case with Missouri, bearing the including three neu- physicians, number of State of specialist is an adult rologists, neurosurgeon, and a entire cost of care. Our ward than So- considering resources other and without financial in rehabilitative medicine not inconsiderable nursing Security whose primary cial the observations of since exhausted insurance has been family co-guardi- medical providers, her and care January convincing ans, and evi- the Court clear and implant has in the stomach if ably
“The Court been well ad- the tube and premises by replacement vised in the repair counsel for or tube should Petitioners, Colby, Esq., surgical proce- William Kansas necessary further become Williams, City Esq., Joplin; and Walter required. hy- dure would Nutrition be the Respondents, The L. Honorable William under circumstances is medi- dration these Missouri, Webster, Attorney General of can be and cal treatment because it Presson, Esq., Attorney Robert Assistant past years has for the five been maintained General, Northcutt, Esq., Robert R. and implanted gastrostomy surgically Department General Missouri Counsel tube. Health, City; all of Jefferson and the Court “Nancy’s present hope- unresponsive and appointed Guardians Ad Litem and attor- less existence is not the will of the Su- Ward, neys McCanse, Esq., Thad C. for our preme forcefully Ruler of man’s will to but Mouton, Esq., both the law David feed her when she herself cannot swallow Flanigan, firm of McCanse and Lasley, Car- fueling respiratory circulatory thus thage, and Amici Curiae Briefs from Socie- pumps cognitive purpose to no for her ex- Die, ty Right For The the Ethics and cept perhaps pain. sound and Advocacy Nursing Force of the Task Home expressed thoughts age twenty- “Her Group Legal Action filed the National five somewhat serious conversation with Medically Dependent Center for the injured if a housemate friend that sick or and the Missouri Disabled Citizens For she her would not wish to continue Life. halfway unless she could live at least nor- being fully premis- “Now advised mally suggests given present her con- es, the Court enters its conclusions dition she to continue wish judgment, accordingly. hydration. nutrition and process “The due clause of the Constitu- legislatively “The Law of this State2 tion of the United States and the statutes public policy prohibits enunciated withhold- require of the State of Missouri1 clear and hydration of nutrition or withdrawal convincing physical of a evidence or mental death-prolonging procedure as a and eutha- may person condition before be declared killing by or mercy nasia act or omission. incapacitated guardian appointed. and a It may only Death-prolonging procedures that no less a follows standard must be require if parties withheld no third innocent met before the Court authorize protection state, no homicide or request Respondents Guardians to to with- *24 good suicide ethical hydration draw nutrition and occurs and standards from their profession Ward the inevitable the medical are maintained. with attendant conse- quences carrying recognize pri- of out such does an act. Our law an individual’s mary right to treatment and refuse medical Petitioners, Co-guardi- “We believe the attending physicians to direct to withhold ans, met parents, heavy her have bur- or withdraw treatment. further den present as the Court has found her medical condition to be and con- clear “In this no innocent third case there are vincing evidence. parties requiring protection, state neither homicide nor committed and suicide will be maintenance of hydra- “The nutrition and the consensus of the medical witnesses in- Ward, unresponsive tion to our to her envi- personal dicated to themselves concerns hope ronment and without of recov- further legal of such consequences the actions ery medical treatment it becomes when can good any objections rather than ethical only provided gastrostomy be tube. professions would be feeding itself be standards the While the more nutri- medical, surgical hydration if procedure tional than breached the nutrition body any personally required invasive to the were the same as other withdrawn 459.015.1; 459.010(3); (1979) Addington v. Texas Section U.S. 2. Section Section 323; 475.075.7, 459.055(l)-(5). 60 L.Ed.2d S.Ct. Section RSMo 1986. prolonging procedures Respondents, employees artificial death the “The of the specifically Missouri, statute authorizes. Euthanasia State directed to cause the statutorily is not defined and there are request Co-guardians of the to withdraw differing lay profes- definitions both hydration nutrition or out. be carried sional terms. having request approval, Such a Court request shall the be taken same as a is a “There fundamental natural any discontinuance of other form of artifi- expressed in our ‘right Constitution as the support systems. cir- cial life Under those liberty’3, permits an individual to cumstances, feeding further could raise the withholding refuse or direct the or with- spectre liability recovery of civil prolonging proce- drawal of artificial death damages provider. the The care from person cogni- dures the when has no more compassion Respondents their as- tive brain function than our and all Ward already sociates our have shown Ward and physicians agree hope there is no guardians, incomparable by stan- recovery further while the deterioration of dards, keeping are in with overwhelm- the brain continues with further overall ing tragedy upon us has been visited worsening physical contractures. To the all. public policy pro- extent that the statute or withholding hibits or withdrawal of nutri- ORDERED, “IT IS SO ADJUDGED hydration mercy tion and or euthanasia or day July, AND DECREED this 27th definition, killing, if such be the under all 1988.” circumstances, arbitrarily and no ex- The mandate of this Court for its review ceptions, it is in violation of our ward’s of this case is that the of the trial rights by depriving constitutional her of court “will be sustained unless there is ... liberty process without due of law. To it, support un substantial evidence decide otherwise that medical treatment evidence, against weight less it once undertaken must be continued irre- law, erroneously unless declares spective of its lack of success or benefit applies erroneously unless it the law.” gives body in effect one’s (Mo. Carron, Murphy 536 S.W.2d v. medical science without their consent. We 1976). given regard “Due shall banc be sing, fervently could then less of the land opportunity the trial court to free, but as medical science advances judged credibility Rule of witnesses.” horizons, fervently to new more much mandate, 73.01(c)(2). I submit under this If land of the brave. we are the victim follow, judg and for the reasons that might cognizant bravery. we of our ment should be affirmed. Co-guardians “To deny authority Appellants and Lamkins contend Harmon deprive to act in this instance is to concluding living the court erred equal protection ofWard of the law prohibit will statute does not withdrawal constitutionally guaranteed.4 which is case; the artificial life in this “In this case the Court acts to au- holding refusal withdrawal Co-guardians thorize the to exercise our deny Nancy “Right Cruzan’s To Lib- *25 constitutionally guaranteed liberty Ward’s erty” deny guardians to and to act request Respondents to to withhold nu- deprive equal pro- her behalf would her hydration. trition and law; failing in to decide tection of the Co-guardians required support of the
“The to whether withdrawal legal authority appropriate, exercise their to act in the in failure to have clear and they convincing support findings, interests of their Ward as dis- to best evidence in charge duty identifying their and are free to act or not and the factors that autho- authority they may this determine. rize the withdrawal. Missouri; I, 2; I, 10; 3. Article Section Article Section Con- 4. Section Article I Constitution of Missouri; XIV, Amendments to the stitution of Article XIV Amendments Article Section 1. to the United States Constitution. United States Constitution. appel- support in curiae briefs Amicus Appellant guardian ad litem advises by The Missouri Citizens filed lants were court: For Retarded Life and The Association For court that felt informed the we we [trial] and The Eth- of the United States Citizens Nancy interests it was in Cruzan’s best Advocacy Force of the Nurs- Task ics and feeding discontinued. to have tube Group. Amicus curiae ing Home Action position of find ourselves in the We now respondents-guardians support in briefs judgment basically appealing from a we were filed and the their favor appeal an agree We felt then that with. Association; Medical So- by The American responsibili- our should be made because Die; For Right To Concern ciety For The guardians ad ty attorneys to her as and System and The Health Care Dying; SSM pursue this matter to the litem was to Ethics, Louis Health Care St. Center For highest court in the state view Center; and The Ameri- University Medical impression fact that this is a case of first Neurology. Academy of can in Missouri. diversionary question Contrary to the guardian ad litem contends sim- Appellant majority, parties as afore- posed by the appellants Har- ilarly to the contentions question by the present said answered mon and Lamkins. He contends additional- Nancy Cruzan: trial court favor authorizing the ly that the court erred in Whether, applicable the evidence and under Nancy guardian ad litem to exercise Cru- law, Cruzan, Nancy incompetent, an adult right sustaining to refuse life medical zan’s right to be free from an unwanted has the treatment because to do so conflicts with surgically im- support artificial life device right guardian’s statutory duty and the planted body, requested in her and autho- personal life here is to Nan- refuse guardians. her Yet rized to removed be cy Cruzan. question posed, no matter how the co-guardians Respondents Lester L. Cru- Murphy sup- judgment for review under zan, Jr., Joyce Cruzan contend for the ported by law and the facts and should asserting judgment of the trial court upheld. be ruling correct in the trial court was Cruzan, daughter, right Nancy their has a The Facts invasive, to be free from unwanted emphasize selected Although appellants treatments such non-beneficial because arguments, of their testimony purposes granted persons by rights are to all dispute contentions appellants’ none of law, right liberty found in the natural by the trial court. Accord- facts as found right self-autonomy the common law and recited ingly, facts stand as found rights liberty pri- the constitutional Murphy; Rule 73.01. judgment. in the vacy; that she did not forfeit the free of treatment because of Nevertheless, intrusive facts majority refinds incompetency guardians result, her con- when inexcusable exer- support its according rights; example, that no the ma- sented to her For cise for this Court. states, feeding present outweighs her “the continuation of jority state interest is heroically inva- through the tube is not free from the state’s intrusive to be evidence, Yet trial court found: care; sive.” that all the credible medical otherwise, supports the with- personally invasive surgical procedure implant- system drawal of the artificial required implant body Cruzan; living will ed repair if stomach and tube not stand to exclude withdraw- statute does should become replacement of the tube implanted support sys- surgically surgical procedure necessary al further *26 tem; hospi- hydra- appellant doctors’ required. Nutrition would be request is medical disregard the these circumstances tal cannot tion under has only be and life it can guardians withdraw the unwanted treatment because maintained past years been for the five support. 436 point persuasive gastrostomy Specifically in surgically implanted case are: Bouvia v. Su resolution this tube. 1127, Court, 225 Cal.App.3d perior subject medi majority’s The statement that (1986) (discussed by ma Cal.Rptr. 297 contrary cal treatment not invasive competent pa- a jority): The court allowed case and the cases both the facts this nasogastric removed tient to have a tube gastrostomy the use of a tube that describe on constitutional body from her based a as a matter of law.” McCon as “intrusive right law right privacy and a common al., Beverly Enterprises, et nell et al. v. Drabick, treatment. In Re 200 Cal. refuse 0293888, slip op. (Conn.Super.Ct. at 25 No. (1988): Cal.Rptr. 840 The App.3d 8, 1988);
July
England
Brophy v. New
exercise the
court allowed a conservator to
417, 435,
N.E.
Hosp., 398 Mass.
Sinai
patient in
right
incompetent
of an
on behalf
(1986).
2d
vegetative
persistent
a
state even without
says,
example,
majority
For further
approval if the decision is made
prior court
regard
“the statements
to whether Nan-
[in
Fleming,
good
faith. Rassmussen v.
cy
this medical treat-
would want to receive
(1987):
public
A
154 Ariz.
437
life-sustaining
Foody,
body
ther
treatment.”
of someone in Gardner’s unfortu-
“recognized
symbolic
recognizes
competent
persons.” Foody,
al.,
(Conn.Su-
Enterprises et
No. 0293888
D’Alessandro,
ner,
(Me.1987):
tation. The
Court held “that
guardian
patient’s
that a
could exercise a
when an individual
clearly
has
and convinc-
stated,
rights
family
is unan
“[w]hen
ingly in
expressed
advance
treatment
his
place great
imous ...
the court must
decision not to
be maintained
life-sus- weight on their decision to enforce the de
taining procedures
persistent vegeta-
in a
McConnell, slip
sires of their loved one.”
state,
professionals
tive
health care
must
also,
op. at 26. See
Delio v. Westchester
respect that decision.”
438 resolved, Jersey legislature proper
Because New the first the the broke is area, ground par government in in guidelines this its cases deserve branch of to set area_’ Farrell, majority ticular The attention. cites Mat this A.2d at In re 529 Jobes, 394, Quinlan 529 434 provide ter 108 N.J. A.2d had failed to suffi- 407. (1987), contending factually similar to is guidelines diversity cient meet the broad however, Nancy’s Jobes, In court case. the presenting life-sup- of cases termination of found clear the evidence was not and con port majority The the projects issues.” vincing that Mrs. to die Jobes would want impression that in In re Farrell the New vegetative if faced life in a persistent with Jersey Supreme found inherent Court some Nonetheless, state. court the allowed Quinlan fault in their The New decision. family’s wishes to be carried out under the Supreme Court, however, recog- Jersey judgment” “substituted test. legislature proper nized the was the branch area, guidelines in yet set this went longest Jersey perhaps New has the line “[nevertheless, patients to hold their and subject. opin- of cases on this In the Jobes physicians increasingly families and be- ion, briefly the court restated rationale ing complex faced with difficult these by tracing the relevant case law: guidelines legislative without decisions summary, again In we state acts, Legislature ... the it is [u]ntil life-support- fateful decision withdraw the must the public courts that look for ing extremely personal. Ac- treatment guidelines procedures life- under which cordingly competent patient’s right sustaining medical treatment be with- outweigh make that decision will 408. or In re Farrell at drawn withheld.” countervailing state interests. re [In Jersey true lesson of the New cases 354, Farrell, 335, 404, 108 N.J. 529 A.2d years elapsed that more than ten had since incompetent patient An does not 414.] Quinlan decision, the yet unresponsive life-sustaining lose her to refuse legislature proce- had failed to establish patient treatment. Where such a has withholding guidelines dures and for the clearly expressed her intentions about withdrawing sustaining medical life treatment, they respect- medical will be treatment. Peter, ed. N.J. at 529 108 [In re] A.2d 425. at only majority case the in cited A.2d 451.
529
which a court did not allow the removal
life-sustaining
treatment is Matter
prob
The court
then
turned
the
98
1209
Conroy,
N.J.
486 A.2d
lem of
whose wishes are not
of
(1985).
distinguishable
It is
because
clear,
judg
and restated the “substituted
guardian
opposed
ad litem
withdrawal
Quin
in In re
developed
ment” doctrine as
feeding tube,
no evi-
and there was
lan,
(1976). Sig
70
would not want have life sustained in a 2841, 2846, reh’g. S.Ct. L.Ed.2d *29 persistent vegetative hope state with no denied 478 U.S. 107 S.Ct. Also, recovery. personnel health care (1986) proposition L.Ed.2d 779 caring Gray for Marcia were adamant in right privacy go to beyond does not opposition their proposal to remove right procreate bounds of the to within the hydration. nutrition and held, Gray marriage. bonds The court concerning medical treatment The Gray’s distinction “[decisions between Marcia little bear connection to the claimed consti- case majority’s and the treatment of Nan- right engage tutional in homosexual Gray, cy’s appeal is that the court in based acts, Instead, Bowers. rejected right facts, on the above followed the law and to control fundamental granted medical decisions is request guardians of the aspect right an of self-determination feeding remove the tube and thus allowed personal autonomy ‘deeply that is Gray rights. Marcia root- exercise her ” issue, history ed in this Nation’s court stated the and tradition.’ “whether or not the Gray state can at 586. person vegeta- insist that a in a incapable sensation,
tive intelligent state Second, the court resolved the issue irreversible, whose condition is may re- hydration “whether nutrition and supplied quired to submit to medical care under through gastrostomy tube are a form of patient circumstances in prefers which the Gray medical treatment Marcia not to do so.” Gray at 584. Gray properly refuse.” at 586. Unlike the majority’s avoidance of logic legal this issue1 the Gray analysis Gray court looked to other case court follow: law “ad- dressing this issue and concluded that an- First, the court resolved the issue wheth- alytically no difference exists between arti- right er there is a life-sustaining refuse feeding ficial and other life mea- medical' treatment. The court discussed Gray sures.” the United Supreme States Court decisions Although symbolism an emotional at- relating held, to the issue and feeding, taches itself to artificial there is “although Supreme Court has never legal difference between a mechanical directly addressed the person’s issue of a person device that allows a to breathe federal right constitutional life- refuse artificially and a mechanical device sustaining treatment, medical the Court’s artificially person allows a nourishment. repeatedly decisions have affirmed the person If right has the to decline life principle of individual self-determination. respirator, on a person then a has the person A right, subject has the impor- equal right gastrostomy to decline a interests, tant state to control fundamen- Accordingly, Gray’s right tube. Marcia tal medical decisions that affect his or to refuse medical treatment includes the body. right, her own This whether de- right [gastrostomy re- tube] principle personal scribed as the au- Gray at 587 (citation omitted). moved. right self-determination, tonomy, the right privacy, Third, or the properly the court the issue resolved grounded protected in the incompetent liberties Gray, whether Marcia like process Fourteenth Amendment’s Nancy, right due “still retains her to decide grounded clause. This is also [gastrostomy whether the remains tube] Gray dignity implanted the notion of an individual’s or removed.” at 587. Un- 1. "The issue is not whether the continued feed- ment." ing hydration treat-
like majority, prevailed. in Gray majority court fol- rec- has failed to prior ognize lowed the case and held law “the to refuse medical treatment ‘must preservation state’s interest [a] incompetent pa- extend to the case of an highest life is when the state seeks to dignity
tient because the value of human
protect
may potentially
an individual who
Any
extends to both.
other view would
subject
be the
of abuse
he or she
because
permit
incompetent’s pan-
of an
obliteration
protect
cannot
his or her own interests.
oply
rights merely
because
here;
clearly
That
the situation
longer
could no
sense the
rather,
violation of those
persons
attempt-
are
a number of
”
omitted).
rights.’
(citations
Gray
at 587
incompetent’s]
to ensure that [an
respected.
wishes
this situation
states,
guardian’s power
The majority
“A
incompetent’s] right to self-determi-
[the
party
to exercise third
choice arises from
prevail
must
over
inter-
nation
the state’s
authority,
the state’s
not the constitutional
*30
preserving
est in
life for all.
rights
majority
further
ward.”
Gray at 589.
statutory
states
find no
“we ...
basis for
argument
the
the guardian possesses
that
majority
At
outset
“Be-
the
the
asserts:
authority,
guardian,
as a
to order the ter
cause
find
we
that the trial court errone-
mination of medical treatment.” To
law,
the
ously
A
declared the
we reverse.”
475.123.1,
contrary,
provides,
medi
“No
ensuing opinion
reader
the
and
§
of
searches
surgical procedure
per
cal
single
or
shall be
waits in vain
citation of a
author-
formed on
ity
support
majority’s
ward unless consent
ob
the
bold assertion
guardian
per
majority
tained from
and its drastic
Yet the
the
his
action.
(1986).
recognizes
itself
that
in
least 16
As
courts
son.RSMo
475.123.1
way
persons
states have found a
to allow
in Gray
court
held:
Nancy
wishing
in the
plight
Cruzan
[gastrostomy
initially in-
tube]
in
die to meet
end. As demonstrated
Gray’s
serted with the consent of Marcia
recog-
dissenting opinion,
cases
this
analytical
husband. No
difference exists
majority’s
uphold
nized in the
footnote
withholding
withdrawing
between
and
sustaining
to refuse life
medical
treatment,
patient’s
A
however.
treatment,
through
personally
either
right to
obvi-
refuse medical treatment
majority’s
guardian. Comparison of the
ously includes both the
to refrain
opinion
dissenting opinion reveals
and this
beginning
from
the treatment and
disagreement
no
on the “White Horse"
‘Moreover,
right to order it’s cessation.
applicable
and
resolu-
case
available
law
standpoint, might
be
policy
from a
well
in this
These au-
tion of the issues
case.
persons
from
unwise
forbid
discontin-
necessary
provide
all the
thorities
uing a treatment under circumstances in
appli-
declarations and
for the trial court’s
permissibly
which the treatment could
of this case.
cations of law under
facts
discourage
withheld.
a rule could
Such
majority why it
ask the
Should not a reader
attempt-
families and doctors from even
recognizing yet reject-
projects
irony of
ing
and
there-
types
certain
care
could
law
dispositive
case
this abundance
by
into
hasty
premature
force them
non-supported
in
its
assertion
favor of
a patient
decisions to allow
to die.’
Is it be-
declaration
law?”
“erroneous
Gray at
n.
bootstrapped
“public policy”
cause of
court,
Last,
following
case,
cited au-
Gray
parties in
that all
this
from statute
incompetent’s right to
thority,
agree
balanced an
majority
has
judge
the trial
case;
against
inter-
self determination
the state’s
or is it because
application
this
preserving
est in
for all and held
would have this Court abdi-
majority
rights prevailed.
In con-
incompetent’s
responsibilities to
Cruzan
cate its
trast,
law
same
and the common
majority
balanced these
under the Constitution
declared,
some
rights
deference to
yet
deny
interests
case
legisla-
unconsidered
yet unspecified and
authority,
without
state’s interest
tion2;
below,
majority’s
or is it
the facts
because
as found
and under the
medicine, ethics,
unarticulated “concerns
large
body
precedent
established
morality,
theology
law”;
philosophy,
of our
states.
courts
sister
simply
majority
is it
because the
elects to
principal opinion,
states that “[n]one
ignore the facts and
of this
law
case and
parties argue
Living
Missouri’s
“choose(s) to err” on
side of
life of
applies
Will statute
in this case.” Cruzan
incompetent persons
live,
who
wish to
McCanse,
v. Harmon v.
760 S.W.2d
not
a case
before the Court at this time?
(Mo.
1988). In
respect
banc
summation,
In
respondents’ counsel ob- parties
eminently
opinion
correct. The
“The family
served:
came to the trial court
unnecessarily
place
dictum
seeks to
long and
after
careful deliberation. Either
constitutionality
a mantle of
on the Mis-
decides,
way this Court
family
the Cruzan
Statute,
Living
souri
Will
which statute
does
win. The trial court found it was
my opinion
a fraud
the people
has been
Nancy’s wish,
wish, to
clear
be free from
beginning
of Missouri from the
and which
this unwanted medical treatment and we
statute,
attacked, must,
directly
if
my
request
that this
affirm
Court
that.”
opinion, be held to be unconstitutional.1
my opinion,
judge
the trial
made a
pointed
principal opinion,
As
in the
out
courageous voyage
previous-
in an area not
McCanse,
Cruzan v. Harmon v.
760 S.W.
courts,
ly
charted Missouri
and the re-
(Mo.
1988),
2d at 419
banc
the Missouri
sulting judgment
supported unquestiona-
Living Will Statute is modeled after the
bly by both the evidence and the law. Nan-
*31
Rights
Terminally
Uniform
of the
Ill Act
cy
and
may
Cruzan
those Missourians who
(URITA),
provides,
be in her situation
the common
deserve
law
rights
and constitutional
that
trial court
Relating
2 Declaration
to Use of
§
has accorded them.
Court
This
should do
Life-Sustaining Treatment
and affirm
judgment.
less
that
(a) An
individual
sound mind and
tion.
Blackmar, J.
dissenting opinions
groundwork
WELLIVER, Judge, dissenting.
This case is not before us to establish
I
respectfully
to examine and determine
It is here Cruzan’s
for future
dissent
of both
to die under the fed-
and
right-to-life litiga-
Higgins,
concur in
J. and
URITA §
As
withholding
otherwise
§
ing treatment
any
[18]
1 Definitions
used
or
time a declaration
more
2(a).
requires:
this
or withdrawal
years
...
[Act]
age
unless the context
governing
life-sustain-
execute at
constitutions,
(f) “Life-Sustaining
eral
state
under our ex-
treatment” means
isting case
requires
law which
us to
procedure
defer
medical
or intervention
legislative
clause,
process
2.
"[Preference
treatment cannot
teenth Amendment’s due
to con-
legally protected
shackle the courts when
inter
involving
trol fundamental decisions
his or her
people
are at
ests
stake. As
seek to vindicate
body);
California,
own
757, 772,
v.
Schmerber
U.S.
384
rights,
their constitutional
the courts have no
1826, 1836,
86 S.Ct.
added). recognize alternative, the Court should the Yes, sign can an instru- we Missourians people I the believe to be the of what withholding or directing ment with- regular have this case decided death-prolonging procedures, drawal The Supreme Court. sub- members amendments, but, after the Missouri case aside and the mission should be set in- “death-prolonging procedure” does regular and hearing for reset before (1) medi- “the administration of clude: duly members of the Court.3 constituted cation,” (2) performance of medical “the provide procedure necessary to deemed rehearing denying from order DISSENT (3) comfort, pain” “the care or to alleviate procedure provide performance any HIGGINS, Judge, dissenting. nutrition,” (4) performance “the or rehearing for a when provides Rule 84.17 hydration.” If we procedure provide ... mis- has overlooked or withdrawing withhold- the Court’s decision cannot authorize argued nothing might about While it be that In a where there a tie vote 3. 2. case case, regular expediting Nancy’s requires result below members of the court the condition Co., 74 Durant v. Essex compassion ignore should affirmed. only could a court without (1868) (a (7 Wall) L.Ed. rever- U.S. 19 154 pain suffering continuing agonizing divided, judges could had if the were sal not be Barring Nancy’s family. ill- death or sudden therefore, stood of the court below ness, why we not have there is reason should Case, force); Albany Bridge U.S. full In re 69 year regular for the balance of the a full court (the Wall) 403, (1864) (2 876 court 17 L.Ed. heavy preclude so as to and our docket is not divided, being equally was affirmed decree rehearing specially set case. of one U.S., (11 by necessity); Etting U.S. v. Bank 24 Wheat) 59, (1826) (the judgment L.Ed. 419 6 evenly divid- was ed). where the Court was affirmed interpreted friend, slip her op. material law fact Athena Comer. See matters (Court as at 411 opinion. shown believes “based on its conversation, the trial court conclud- The decision case is 4 to 3 in this ed that ‘she would not wish to continue majority opinion, subjected to and when ...’”) (em- hydration nutrition and with rehearing matters not scrutiny it what added); at 424 phasis slip op. (Nancy’s dissenters said. The test “ ‘informally expressed reactions to other opinion whether the decisional shows that people’s and treatment medical condition misinterpreted it has overlooked or materi- proof do not of her in- constitute’ clear al matters of or fact as called to the law ...”); (Court slip op. tent holds at attention of the the motion for Court Nancy that “statements attributable to rehearing. similarly in this case are unreliable for ground The first in Ms. Cruzan's Motion determining purpose her intent Rehearing persuasively and, is stated ”); slip ... see op. also my opinion, qualifies this case for rehear- made thereby Court a material ing under Rule 84.17: interpretation mistake of fact in judge’s the factual the trial basis for I. THIS COURT OVERLOOKED OR way decision. The trial in no court limit- THE MISINTERPRETED FACTUAL finding ed its intentions to BASIS FOR THE FINDINGS OF THE single Nancy had conversation TRIAL TO THE COURT AS INTENT her friend Athena Comer. Athena Com- OF NANCY CRUZAN testimony only er’s a half took hour of a This recognized Court Cruzan v. day three trial. The court below heard Harmon, (Mo. banc, No. 70813 Novem- much, much more evidence relevant to 16,1988) (hereinafter “Slip op.”), ber Nancy’s intent. It evidence of oth- heard incompetent people rights. have certain important Nancy er conversations had expressly Court found that an in- about medical And it treatment. heard competent person retains her Constitu- testify witness after witness about the “right tional Slip op. to life.” at 426. was, felt, person Nancy kind of how she incompe- Court also that an found believed, only and what she told as those person tent can determine her medi- own who loved her she could and whom loved cal treatment if sufficient evidence of (L.F. 254). Tr.Ct.Op. impor- An know. present. Slip that intent op. at 415- part tant was the of this evidence testi- (the approval Court cited with mony from different witnesses several Conroy, tests set out In re 98 N.J. absolutely not want to (1985), 486 A.2d “arguably subject family they torture adopted by a court which [tests] (TR See, 544) e.g., (Nancy’s now endure. *33 adequately consider the state’s interest sister, Christy, Nancy’s testified about in life in life-sustaining the context of against wishes the effect of when viewed ”); slip treatment op. ... see also at plight parents: on her “that’s an (“no 424 and 425 can person assume [the stronger even reason because she loved right to privacy] incompe- choice family. them loved her so much. She tent in of the absence ... clear and con- Family important Nancy. If very vincing, inherently reliable evidence ab- them, say, she she could talk to would here_”). sent minute, ‘Hey, just care of take each ...’”). test, however, other approving
After such inexplicably apply evidence, this Court failed to the of days After three full the express findings test factual the of judge Nancy trial concluded that would Nancy’s by ongoing intent made the trial court. forego choose to the intrusion of Instead, the made its judge Court own “factual the The trial gastrostomy tube. intent, findings” of and it not limit- based this conclusion on the Athena, finding essentially ed that of but on “other to review conversation with Nancy family one had statements to and friends” and conversation that overwhelming by Nancy of life- Cruzan the evidence substantial evidence. “[h]er (L.F. 254, 256). style.” Tr.Ct.Op. rehearing point. is entitled to a on this guardian Similarly, independent ad the agree grant I rehearing. I and would litem, appointed by pro- the trial court to dissent, respectfully, deny- from the order Nancy’s interest, the tect concluded that rehearing. ing a trial court had clear con- received and vincing Nancy evidence that would want ON MOTION FOR REHEARING gastrostomy the tube removed. GAL WELLIVER, Judge, dissenting. (L.F. 236). Brief at 32 Post-Trial respectfully I dissent from the Order de- review, Court, sitting appellate This Rehearing nying concur in the dissent the its rules to is bound under follow appellant- J. The today Higgins, filed the trial court unless facts found respondents guardian ad litem the decision of the trial court finds the rehearing have raised on the fact that the “no has substantial evidence 84.15 and Court has overlooked Rule against the ruling “is it” or that 477.020, provide: RSMo § weight Murphy of v. the evidence.” Majority Rule of 84.15. Decision of (Mo. Carron, 30, 32 536 S.W.2d banc Judges Decision of Court. Shall Be 1976). absolutely no Court made This of the majority decision of the ruling It deci such here. reversed the judges sitting of this Court en banc or of judge “that sion of the trial on basis Appeals any. of Court of sit- district erroneously the trial court declared ting of en banc shall decision be added). Slip (emphasis op. at 410 law.” court, judges case any but shall if by the court But the law as found trial opinion then an equally divided in Supreme exactly Court is temporarily judge additional shall be “life-sustaining may be treatment same— pursu- transferred to the court or district incompe from an withheld withdrawn V, ant to Article of the Consti- Section it is clear that tent when tution and the case shall be reheard. particular patient have refused the majority The decision of the in the circumstances treatment under Court shall be judges of a division Conroy, re 486 A.2d at volved.” In the case of the court unless decision 415, 424, 425, 1229; slip op. see also Un- to the court en banc. transferred pursuant own a district less to its rules Appeals determines the Court retry required Cruzan banc, en of a hear a case the decision appellate at the the facts of her case majority of a of that district division court, after full level. trial (Em- shall be the decision of the district. hearing, found clear evidence fair ours) phasis testimony many in the Nancy’s intent Majority decision- Section 477.020. put The State different witnesses. special judge appointed, testimony when contrary. This evidence majority decision whom.—The exactly type of evidence court judges supreme Conroy appropriate in In found court re any appeals of the court of shall district determining “in what course to examine court, if be the decision of the but patient would have *34 treatment judges equally case shall be divided A.2d 1230. pursue.” wished opinion, cause parties misinterpreted the factual This Court agree upon person learned in the some finding of the trial court—evidence law, special judge in the who shall act as one was not limited to Nancy’s intent cause, sit therein with the and who shall This with Athena Comer. conversation court, give decision the same man- led the Court mistake fact material as one of same effect ner and with the in re- mistake law material commit agreement shall judges; and such versing decision without the trial court signed by parties their writing, supported that it determination record, attorneys filed with the
papers part and form a of the record in parties agree If cannot cause.
upon special judge, ap- the court shall record,
point, by person an order of some aforesaid,
possessing qualifications judge. special
to act as such 477.020,
Section 1986. RSMo
It until was not known the vote was regular judges
taken in case evenly
of the Court were divided. The
Rule and statute in the mandate clearest
possible language the cause be re-
heard. rehearing
I would order a before seven Term,
regular judges during January
1989.
BROONER & ASSOCIATES CONSTRUC-
TION, Brooner INC. & Thomas f/k/a Sanders, Zobrist, William H. Karl Black- Inc., Company, Appellant, Construction Lombardi, Weary Matheny well Sanders & v. City, appellant. Kansas for AND WESTERN CASUALTY Gen., Webster, Atty. Jerry William L. B. COMPANY, SURETY Buxton, Gen., Atty. City, Jefferson Asst. Respondent. respondent. for No. WD 40232. COVINGTON, Before NUGENT and Appeals,
Missouri Court of GAITAN, JJ. Western District. COVINGTON, Judge.
Sept. 1988. Construction, Inc., Brooner & Associates Rehearing Motion for and/or granting appeals summary from an order Supreme Transfer to Court Denied Casualty judgment favor of Western Nov. Surety Company. is af- firmed. March, 1980,
In entered into an Brooner agreement County R-I Linn Public high school. West- Schools construct comprehensive liability insur- ern issued a February, policy ance to Brooner. damages County petition Linn filed a against alleging that numerous de- Brooner construction of the and failures in the fects high neg- Brooner’s caused school were ligence. surety per- on the As Brooner’s *35 bond, was also named formance Western separate counts not rele- as a defendant appeal. vant to this