DeGrella by and Through Parrent v. Elston

judiciary and covered the collateral excluding source rule ir- such evidence as LAND, Land, Kenneth Martha Appeals begs relevant. The Court of off Land, Movants, Kendra deciding from this statute whether violates v. separation powers the doctrine of EDWARDS, Wilbur A. Johnetta “comity” grounds. Court, Our and our Haselden, Agway Insurance alone, respon- has the administrative

Company, Respondents. sibility deciding for judiciary for the when statute, unconstitutional, should be em- No. 92-SC-665-D. braced for “comity.” reasons of Supreme Kentucky. Court of 3)This case will be cited to our Court as 21, May 1993. precedent involving in future cases the con- stitutionality aspects of other Amended, As June 1993. Act, Kentucky Tort Reform issues which ORDER DENYING DISCRETIONARY already yet surfaced but not reached REVIEW Court, this Court. Our not the Court of PRIOR REPORT 851 S.W.2d 484. Appeals, should set direction for cases The motion for review the decision of to follow. Appeals the Court of is denied. importance Given case of such obvious institution, judicial within the there is no STEPHENS, C.J., REYNOLDS, SPAIN justification denying for review. Our WINTERSHEIMER, JJ„ concur. charged responsibility Court is with the J., institutional grant. type LAMBERT review of cases of this magnitude. and this LEIBSON, J., by separate dissents How this case would decided our opinion COMBS, J., in which joins. Court, is, important nearly as this is not May ENTERED 1993. important having it heard and decided Stephens /s/ F. Robert by our Court. have made a serious We Chief Justice delegating mistake in responsibility our LEIBSON, Justice, dissenting. deciding Ap- this matter to the Court of peals. Respectfully, I dissent from the decision deny review,

of our Court to discretionary COMBS, J., joins. permitting Appeals’ Opinion the Court of published. case to be involving This is a major issues of importance

institutional for at least three

reasons: 1) The case ques- involves substantial DeGRELLA, by Martha Sue regarding tions constitutionality Litem, Ad Homer Guardian having major impact statute on the trial PARRENT, III, Appellant, cases, many and the Judicial Article Court, intends Kentucky Supreme for the Appeals,

not the ques- Court of to decide ELSTON, Joseph Appellee. G. tions of this nature. No. 92-SC-756-TG. 2) Appeals The Court of defers to a stat- Supreme Kentucky. Court of Assembly ute enacted the General prescribe that certain evidence will be an July “admissible fact” “all actions for dam- ages” (KRS in this Commonwealth 411.-

188). This is relevancy here-

tofore within province the exclusive Heuser, Jr., Louisville,

Vincent F. James Jr., Bopp, Marzen, Avila, Thomas J. Daniel Altomare, IN, Indianapolis, John for ami- cus, Advocacy Ethics & Task Force. Kirven, Louisville, amicus, Gerald for Kirven, of the Bar. Member VanMeter, Stoll, Laurance B. Keenon & Assoc, Park, amicus, Lexington, Ky. for Hospices.

Benjamin Lookofsky, Mayfield, J. for amicus, Jane Doe. Cronan, IV,

Charles J. Martha J. Hassel- bacher, Harbison, Louisville, Stites & for amicus, Jefferson Co. Medical Soc. Gorman, Gen., Atty. Chris Thomas J. Hellmann, Gen., Div., Atty. Asst. Civ. Frankfort, amicus, Atty. for Gen. Edgar Turner, Zingman, A. B. Susan Christian, Raff, Carole D. Wyatt, Lori E. Combs, Louisville, amicus, Tarrant & for Kentucky Hosp. Assoc. Fade, Services, Legal

Ann E. Director of Inc., in Dying, City, Choice York Pa- New Fitzgerald, tricia Walker Walker & Radi- Louisville, gan, amicus, Dy- for Choice ing, Inc.

LEIBSON, Justice. “right This is the first of the so-called cases, spawned by die” modern medical technology, to reach this Court.1 tragic beating As a result of a inflicted upon 22,1983, February her on Martha Sue (Sue) DeGrella an acute sustained subdural causing hematoma damage severe brain for which medical treatment was of no benefit. languishes, slowly wasting away, She now in persistent vegetative Lyn- state at the Parrent, III, Parrent, Homer Yish & don Nursing Lane Home in Jefferson Coun- Smither, Louisville, appellant. ty, Kentucky. She receives nourishment Ceridan, Seiller, Mary Z. Bill through V. Hand- gastrostomy water tube sur- Seiller, Cooperating Attys., maker & gically implanted ACLU into her stomach. She Friedman, Counsel, David A. Gen. tracheotomy Ameri- breathes in- tube can Civ. Kentucky, Liberties Union of serted into her throat. These medical de- Louisville, appellee. 4, place vices have been in since March Coordinating Life-Sustaining 1. The Making Life-Sustaining Council on Decision Medical Edition, Making by (Second 1992).” Medical Treatment Decision Treatment Cases Courts, project guidelines of the National Center for NCSC Publication No. R-135. These provide State Courts funded the State Justice Insti- useful advice for trial courts to consider tute, has written "Guidelines for State Court in future cases of this nature. petition, all of which now 1983, of im- tions significant possibility with no Nevertheless, proved at trial. With provement in her condition. artificial- been trial, Litem Ad attended Guardian ly supplied nutrition and she two-day period in over a place took linger many years in this condition. which tested witness- report July appropriately there no “serious” doctors advise cross-examination, and after the trial recov- es where such a report in he recom- a final which submitted ered. deny relief mended “that mother, Elston, ap- Martha Sue’s was sought.” He stated: legal guardian by pointed daughter’s “Despite horrendous situation Court in Octo- Order Jefferson District itself, your family finds the Elston filed February ber be- simply Litem does not Guardian Ad action, naming the re- Sue as the within in anything present is lieve that there a asking appointment of spondent and Kentucky what law which authorizes Litem to Sue’s inter- Guardian Ad advocate Plaintiff seeks....” declaratory petition ests. seeks a Her judgment acknowledging persistent Sue’s argument the In Brief and oral Guardian and to vegetative asking state the court Litem, appellant, has is Ad who now Elston, (1) declare that “Martha as mother dispute there about conceded that DeGrella, permitted by Kentucky Sue condition, (2) feelings she present Sue’s to her that of law substitute competent adult about expressed as a daughter.” speaking, Martha Strictly her devastating this subject at issue before Elston, petitioner, a court her, (3) does seek her upon and was forced condition gastrostomy to tubes order disconnect the below decid- prognosis. The court provide to and used nourishment water legal mother and ed that Sue DeGrella’s daughter, a decla- her ward and but right to direct her at- guardian,2 has the she, ration that as Sue’s mother and Guard- nursing home tending and the physician ian, right has to such feeding direct discontinu- to disconnect the where Sue resides petition alleges, existence, ation. The and she has and maintaining her that is tube proved trial now to satisfaction of the Ad Litem chal- her die. The Guardian let evidence, convincing judge decision, clear and lenges legality of this speak, fairly “if she could she would facts stated fully agrees the [Sue] ” say, go.’ ‘Let me Opinion. trial court’s is- This is not there this court because Within the context of right is a to dispute family (1) a there between members sues are: whether live; (2) wishes, a choose to die as well as between stated, clearly a has physicians person as to the The whether medical evidence. adult, that she would competent case is before our because Sue’s as a to the condi- attending nursing if ever reduced physician and the home choose die so sanctions, administrative, right to do legal presented, retains the fear civil tions her criminal, devastating injury rendered they carry out the a has even should after persistent through incompetent left her expressed and wishes state; (3) if the legal guardian. Being vegetative thus and answers her mother and affirmative, concerned, they family are in the questions have advised the these two may exer- she they require per- court authorization before retains whether the in this ease mitting participating surrogate, removal of cised guardian. legal provides device which Sue with next kin the medical Sue’s nourishment and water. con- we must addressing these issues Ad file If there is a Litem did not front several sub-issues. Guardian allega- circumstances: response controverting the choose die factual legal guardian Ironically, despite has been substi- persists her con- as her while Sue fied dition, (the petitioner) her mother has died this appellee Order of Court. tuted Elston, brother, Joseph quali- Sue’s G. has now (1) impact upon what is the Fact, such Findings The trial court’s Con- two statutes Kentucky Judgment, enacted clusions of Law and entered (KRS 3, 1992, Living 311.622-644) September Will comprise pages Act some and the hardly Health and can Surrogate Care be summarized within the Act of (KRS Opinion. 311.970-.986); (2) confines Eleven witnesses do statements testified, mother, including Sue’s two by person made competent regard- when brothers, sister, husband, her former ing the forego desire to medical treatment doctors, nursing three home adminis- in the future under pro- certain conditions trator, theologians. and two Irreversible evidentiary vide an basis for de- damage destroyed higher brain Sue’s cision-making when the is rendered functioning. Only brain her brain stem (3) incompetent; powers do the function, continuing operate continues to guardian or next of kin ever extend to respiration and heart. With continued authorizing prolong- the withdrawal of life feeding many years. live Howev- ing treatment, even with a er, body her brain and her will continue to condition; extent, in Sue’s to what wither. She reacts at a reflexive lev- if any, should courts be authorized or re- el, meaning painful she will withdraw from quired play decision-making role stimulus, experience pain by but does not process? cognitive thought. Ceasing the nutrition hydration and pain, although, will cause no prefatory There is one issue which likewise, continuing treatment causes no we must embarking address before on this pain. feeding With the of withdrawal discussion lest our words be misunderstood tube, signs expire all of life in will about step the first slippery slope, onto a ten days. to twelve misapplied by trial courts future cases: that is the quality-of-life long court, finding issue. As of supported the trial by evidence, case is confined to substitute decision- uncontroverted medical is: making by conformity provision “The hydra- of nutrition and patient’s previously expressed wishes, by way tion of a gastrostomy tube is the case right involves of self- found to be an artificial intrusion into the determination and not quality body of life. of Sue DeGrella and under the cir- However, regarding as evidence pa by cumstances of this case is deemed weakens, extraordinary tient’s wishes Court to be an the case measure moves perpetuate signs.” from utilized to her life quality- self-determination towards of-life point test. At the where the with by The trial court found “clear and con- of life-prolonging drawal medical treatment vincing proof evidence” that sustained solely person’s becomes another decision allegations Complaint, both as to life, patient’s quality about the the indi the medical facts regarding condition Sue’s life,” vidual’s right “inalienable as so prognosis and and as to her choice as she declared in the United States Declaration expressed it family on differ- members Independence protected by and Section contexts; ent occasions and in different Kentucky Constitution, One of our out specifically, subject up as the in con- came weighs any quality consideration of the occasions, versation on various she life, life, or the value of the at stake. devastating were injury ever faced with a Nothing Opinion in this should be con incapacitating or illness her such as she is sanctioning supporting strued as incapacitated, eutha now she would want her nasia, mercy killing. approve having treatment We do not terminated rather than prolonged her life permitting anyone by artificial means. As to decide when another by stated the trial court: any should die on basis other than clear convincing and evidence that repeatedly expressed “She view would choose to do so. This was the deci she kept would not want to be alive sion of the trial court and it is artificial means. the plight She found Quinlan this decision which we affirm. Ann Quinlan’s Karen contin- sacred, or is more right is held more her.3 “No to be ued abhorrent law, guarded, on her abilities the common any carefully She hated limitations being being every she feared reduced to individual than the far as dependent person, on others. went so She of his own possession and control being put respirator after protest on a all or interference free from restraint accident, her second automobile even other, unquestionable by clear and unless though ever existed that she authority of law.” recover.” Judge Ben- expressed by This was specifically she stated that While never Cardozo, during his tenure on jamin she did want nutrition York, follows: high New persistent vege- in the event she was in a years being of adult “Every human state, it tative would be unreasonable determine mind has a sound require high degree specificity such a body; own be done with his what shall part.” on her surgeon performs opera- an and a who respon- The trial court found that consent com- tion without his dent: assault, mits which he is liable an rejected during life and at “... her time damages.” Society v. Schloendorff prin- competent was times when she 125, 130, Hospital, 211 New N.Y. York ciple that life must be maintained at 105 N.E. contrary expressed ex- cost. To the duly This noted our same was plicitly many occasions desire Scobee, Ky., S.W.2d her life not if she would Court Tabor be maintained surgeon against a suit come to be under which would 474 conditions extraordinary patient’s Fallopian require preserve means discovered his during her life.” were infected and diseased tubes re- operation appendicitis, and who Based on this evidence the trial court obtaining first the moved them without held, inter alia: patient’s stepmother who the of consent “(6) Petitioner, The Re- mother of the facts Our held the stat- nearby. was spondent, of as well as next against the a cause action ed constituted kin, the power has act stead surgeon though surgeon’s the treat- even may capacity Sue DeGrella. such approved by testimony of the ment “was elect to direct discontinuance of fur- 475); colleagues” professional his {Id. saving ther life treatment on behalf minor, through her patient, who was Sue DeGrella.” wheth- stepmother, had the to decide question by The raised this is of case undergo refuse this er she wished profound public importance: can the trial life- an immediate procedure unless lawfully right of the sanction the impractical emergency made it threatening legal guardian next and of kin of an incom- stepmother’s surgeon to for the obtain petent persistent person vegetative removing patient’s Fal- consent before state to terminate artificial nutrition lopian tubes. Thus, hydration? when the Guardian Ad appealed judg- Litem trial court’s final holds that Tabor v. Scobee ment, granted transfer. we authority was to be consulted parental underage of her on behalf to obtain consent outset, appellant At note does we operating on the stepdaughter unconscious question not common law here this infer that Mar- table. From we competent person forego treat- authority to had similar refuse tha Elston ment, by either refusal As or withdrawal. of her further medical treatment on behalf stated in v. Railway Union Co. Pacific child, 250, 1000, in all circum- 251, incompetent 141 Botsford, 11 adult U.S. S.Ct. 1001, stances, (1891): appropriate circumstances 35 L.Ed. 734 Quinlan, 647, highly publicized case 3. See In re 70 N.J. 355 A.2d L.Ed.2d 289 denied, U.S. media. cert. 97 S.Ct. news there disability where is no state interest sustain- “Where of the individual shown, life ing specifically jurisdiction identified which is of of the court importance outweigh plenary potent sufficient it. Cer- to afford whatever tainly the may necessary protect facts Tabor tear at relief his v. Scobee that, appellant’s preserve the heart contention interests his estates.... although competent special adult has common While this is indeed a exercise right to refuse forego equity jurisdiction, beyond medical treat- it is surgical intervention, pass ment no one thereof the court virtue authority engage in surrogate upon purely personal rights.” decision- Id. at making incompetent, for an Martha El- operation contemplated The in Strunk sought daughter pres- ston to do for her bearing well-being had no on the physical ent circumstances. incompetent brother. was Our court only Kentucky guardian’s

The of which approving choice what as to knowledge having any bearing we on Tommy” would be “beneficial to on based presented Strunk, the issue psychological Strunk and emotional considerations Ky., S.W.2d 145 outweighed Strunk was a of the physical ward adult, petition the mother of an incom- health mere Again quoting survival. son, petent treatise, appointed who had been as his from a the court au- referred for committee, asking recognize English the court thority to an case where the authority transplant to authorize the permitted “... Lord Chancellor the al- healthy son’s kidney a donor to his annuity lowance out of income suffering brother was from a fatal of the estate of lunatic earl as a [a] kidney disease. per- retiring pension aged to the latter’s “The court found that the sonal servant” because the court was [trial] [broth- “ operation necessary, was that under Carysfort ‘satisfied that the Earl of er’s] peculiar approved circumstances of this case it ca- would have he had been ” acting do- pable beneficial himself.’ Id. at 148. [the but also incompe- beneficial to nee] [the appellant authority cites us no tent because was donor] [the donor] contrary. appellant solely relies greatly dependent donee], upon emo- [the the failure statutes tionally and psychologically, and that his guardianship specifically related to to cover well-being jeopardized would be more se- stat situation. We view the verely by the loss of his brother than “Guardianship utes related to and Conser- kidney.” the removal of a Id. at 146. Persons,” 387.- vatorship for Disabled KRS court, recog- Our affirmed the trial seq., 500 et as remedial rather than exclu nizing power “the equity inherent ser provide sive. statutes intend to These regard courts with incompetents.” only to incompetent persons Id. vices for not 147. The engages subject at decision reason specifically articulated also as judgment,” of “substitute refuting pow ably the nature of the inferable from Ad present Guardian Litem’s claim in the ers include in KRS guardian, of a which that the guardianship statutes do not 387.660: specifically legal guardian authorize a “(2) provision make for the To ward’s personal make decisions of this nature. care, and maintenance.... comfort we state: Strunk (3) give any necessary consent To right incompetent “The to act for the approval to enable the ward to receive recognized all cases has become care, professional coun- medical or country as the doctrine of substituted sel, excep- service [with judgment enough only and is broad require procedures tion of certain property cover cover but also to all except in approval emergency touching well-being on the matters situation], ward.” Id. at 148. respect in a To act to the ward quote from a deprivation

We treatise: limits the manner which ward would decision the onymous with the personal his rights civil and restricts competent make if conscious necessary choose to to the extent freedom to him.” provide needed care and services to do so. stan- the substituted “Under by Mitchell quote We from Rasmussen dard, ‘attempt[s] to reach guardian 741 P.2d Fleming, 154 Ariz. person incapacitated the decision guardian addressing or she were able make he for a to terminate nutrition and guides a best This standard choose.’ ... vegetative persistent state: pa- decisionmaking when a guardian's clearly has the abil- competent person “A her intent manifested his or tient has medical ity to refuse to exercise Id., 741 P.2d at competent.” while too, incompetent So, does an treatment. medi- has his or her made

individual Ari- go step, next as the We do becoming in- prior to cal desires known case, did in the Rasmussen zona court competent. Id. 685-86. interest” can extend "best decide that life-sustaining medical treat-

terminating argues that guardian ad litem the ward are the wishes of ment where guardian’s right approve to or to consent unknown. does not include

medical treatment appellant position of treatment.... to refuse medical fiduciary it is unthink guardian “a properly act so fiduciary could able is, in ... ‘Just medical intervention While bring the ward’s death.” as to about cases, clearly in the best majority argument super has recognize that this we ward, nonintervention interests of our the courts seventeen appeal, ficial and, appropriate some cases pondered the same which have sister states ” therefore, interest.’ in the ward’s best “un have not found it presented here issue P.2d Id. 741 at 687. Indeed, every has state that thinkable.” First, following quote approve we upheld the matter considered from Rasmussen: state, vegetative persistent patients in a consequences of termi- “The a decision to to withdraw through surrogates, to elect irre- often nate treatment will their courts based care: some such medical Therefore, dis- the court in versible. rights and some common law decision on pute will assume that the wishes pro constitutionally law viewed common treatment, receiving continue Ari seventeen states tected. These prove will and the burden to otherwise Delaware, California, Connecticut, zona, desiring party parties rest on Maine, Indiana, Illinois, Florida, Georgia, Id., P.2d terminate the treatment.” Minnesota, Missouri, Massachusetts, New at 691. Ohio, Island, York, Rhode Jersey, New are cov these cases interest,” Most of Washington.4 con- We view “best the United States Opinion of text, standpoint exclusively from the of ered Director, Missouri v. well-being syn- Supreme of Cruzan the ward and health and Torres, N.W.2d 332 Conservatorship 357 by Mitchell v. Flem 4. The cases are: Rasmussen of 207, Harmon, (1987); ing, 760 (Minn.1984); Conser S.W.2d Ariz. 741 P.2d 674 v. 154 Cruzan Drabick, 185, 394, Cal.App.3d Jobes, 245 vatorship 1988); 200 (Mo. In re 108 N.J. 408 banc of (6 Dist.1988); Cal.Rptr. 363, v. Bever 840 McConnell Storar, (1987); re 52 N.Y.2d In 529 A.2d 434 Inc., 692, ly Enterprises-Conn., 209 Conn. 553 266, (1981); N.E.2d 64 Leach 420 438 N.Y.S.2d Severns, (1989); re 425 A.2d 156 In A.2d 596 49, Ctr., Ohio 22 66 Med. O.O.3d v. Akron Gen. D’Alessandro, (Del.Ch.1980); 487 Corbett v. Romeo, 1, (1980); Gray v. N.E.2d 809 Misc. 426 L.H.R., (Fla.App.1986); 253 Ga. In re So.2d 368 Grant, (D.R.I.1988); re 109 F.Supp. In 697 580 439, (1984); In re S.E.2d 716 Estate 321 of 545, (1987). 747 P.2d 445 Wash.2d 33, 780, 549 Longeway, 133 Ill.Dec. Ill.2d 139 decid- Island case was We that the Rhode note Lawrance, (1989); re N.E.2d N.E.2d 292 579 Romeo, court, supra, Gray v. ed in federal Gardner, (Me. (Ind.1991); A.2d In re 534 947 32 Lawrance, su- Inc., that Indiana Matter 1987); England Brophy Hosp., Sinai v. New of 417, (1986); part pra, on Indiana statutes. was based in N.E.2d Matter 398 Mass. 497 626 of 706 261, part. Health, longer 497 apply

De U.S. 110 tent it can no said to incompetent person persistent S.Ct. to an L.Ed.2d vegetative decisions reviewed in But stat- Cruzan reason that state. neither these specifically applies present where the utes plainly wishes of the to the situ- ation, looking study manifest from and when we them statements made when com a petent, right policy overriding right the common self-determination treatment, they refuse merely should not medical send mixed be lost an because indi messages. longer is no vidual able to sense a violation right.

of such example, Living begins For Will Act with a reaffirmation of the state, common law every when the court has been right, legislative finding “that all adults persuaded incompetent of the wishes have the fundamental control patient, the court has honored those relating decisions to their own medical states, wishes. In all two but Missouri and care, including the decision to have medical York, New even when the court has been surgical procedures or or means calculated precisely express unable determine the withheld, prolong provided, their lives or patient, wishes it has allowed the 311.622(1). The withdrawn.” KRS statute patient’s family, patient’s guardian, or the goes from specify there to one method to exercise substituted as to adult, a competent through which what the would wish. The cases “living Act, can will” detailed in York, from Missouri and New Cruzan instructing “make a written Harmon, declaration ... (Mo. 1988) 760 S.W.2d 408 banc physician the adult’s with- to withhold or Storar, and Matter 52 N.Y.2d life-prolonging draw treatment in the event recog- N.Y.S.2d N.E.2d 64 having such is diagnosed as a termi- nize the common law to refuse treat- 311.622(2). nal condition.” KRS But it ment is incompetent, retained an exclusive, purport does not or require convincing clear and evidence that supersede rights. common law incompetent person, competent, while expressed the desire such 311.624(5)(b)specifies that in a KRS liv- be refused in presented. the circumstances ing pursuant will document executed “ present In the trial court used ‘life-prolonging statute treatment’ shall convincing “clear and evidence” not include the of medi- administration making decisions, standard for its so we performance any cation or the not preponder- need decide whether a mere procedure necessary deemed to alleviate ance evidence would have sufficed. pain hydration.” or for nutrition or But convincing Clear and evidence was intro- argument limitations in the duced, patient’s both irreversible Living express policy Act for situa- Will persistent vegetative state and the beyond scope tions of the statute is strength commitment to 311.640, conclusively refuted KRS the termination of life such circum- specifies (1) the Act “cre- subsection recognize stances. Once we possibility concerning presumption ates no the inten- of any circumstances where the tion of an adult has revoked terminating self-determination of using Act, executed declaration” treatment can still be exercised “shall ... subsection that the Act surrogate, quali- circumstances impair supersede common law fy application. its has to statutory adult effect withholding of medical or withdrawal appellant contends the common care.” in, law of self-determination and in to, obtaining 311.636, “[njothing formed consent in medical treat KRS states that Living ment has by legislative been attenuated Will shall to be construed [the Act] expressed policy condone, in the Living approve authorize or kill- mercy Act, supra, euthanasia, Will and the Health ing permit any Care Sur or or to affir- rogate Kentucky, supra, Act of to the ex- mative act or deliberate to end life other state, is vegetative process period persistent to permit than natural of fitting the defini- recognized as medically added.) “Mercy (Emphasis kill- dying.” of process the natural “permit[ting] tion of any or other “affir- ing” and “euthanasia” by the evidence as dying” documented life” are or deliberate to end mative act reach We could not us.5 the record before common violations of the law. fundamental definition, so even if we were a different key phrase, “other phrase The is the last inclined, by indulging in an abstract except process dy- of permit to the natural than or “meaning of life” discussion about phrase explains, clarifies and ing,” and this our substitute “quality of life” that would “affirmative or limits what meant an intro- personal for evidence opinions phrase act end life.” This deliberate expressed as duced at trial of medical recognizes the advances judge. findings of the trial it sustain technology possible have made except existence when life ended mean Likewise, special we find no process dying.” of This the “natural rights legislatively ing in the bundle of life, objective quality into of inquiry Surrogate the “Health Care provided by subjective inquiry a into whether supra, limits or Kentucky,” of Act patient wishes the continuation of patient’s common contravenes process procedures to interdict “the natural Act rights This in the situation. dying.” of person capacity” grants a “with decisional “designate” “as a surro hydra- others The withdrawal of nutrition and state, gate to make from DeGrella’s or successor tion a Sue grant- on behalf of the damage prolonged health care decision brain and irreversible Indeed, abo, actually making LSMT decision. See Guidelines State Court Decbion making. they confuse the decision Making Life-Sustaining tend to Treatment Medical (5) are Courts, ed., Cases, nutrition and Artificial National Center for State 2nd treatment; general, their forms important 143-45 "It is note that governed or discontinuation should use already developed major med- consensus has govern practices principles and the same (n. 248). ical-ethical issues relevant to LSMT Although of medical treatment. other forms They following: include hydra- involving and artificial nutrition issues (1) significant are There distinctions be- emotionally, presented more are tion often (stopping withholding withdrawing tween standpoint, they legal raise and a moral from starting) and not LSMT. questions other forms of medical as do the same illness,’ (2) The use terms such as 'terminal treatment. condition,' dying' 'imminently 'terminal and of- (6) significant dis- and are moral There clarity more in LSMT ten create confusion than letting (including die the use tinctions between condition, Regardless patient’s decisions. suffering during the to relieve of medications pro- overriding concerns for the health-care (assisted killing dying process) and suicide/eu- (a) respect- forgoing vider are: LSMT die, thanasia). letting death is the cause of (self-determination), ing patient autonomy and process trau- underlying disease seen as the (b) (the improving patient well-being weighing suicide/euthanasia, cause ma. assisted plan and care in of benefits burdens of one inherently lethal action as the of death is seen alternatives). comparison with itself. (3) duty professionals Health care (n. 248) major LSMT medical- articulated patients. promote the welfare of their Howev- Academy include: American ethical standards er, duty necessarily include the does Academy Neurology, Position American preserve life at all costs. Where LSMT fails to Aspects Neurology the Care on Certain welfare, promote patient’s longer there is no Vegetative Management State the Persistent it, obligation provide Society, and treat- (1988); an ethical American Geriatrics Patient longer ments no beneficial to the De- Treatment Medical AGS Position Statement: (1987); stopped. Elderly Concerning Persons císions forms, many LSMT can take from some- Affairs of the and Judicial Council on Ethical Association, thing simple penicillin pill something Withholding as as a Medical American respirator, depending upon complex Life-Prolonging Withdrawing Treatment Medical Guidelines, 1989); Hastings (1986, circumstances. It these circum- Center 9; Report, making important supra stances that LSMT Commission note President’s 9; pa- Congress, potential to of Technolo- supra decisions and the tient, benefit U.S. Office note Assessment, Technologies ‘extraordinary,’ Life-Sustaining gy no labels such ‘or- (1987)." ‘heroic,’ dinary,’ Elderly are of little value in or, excluding the to withhold or with- Now we turn our attention to hydration,” stated, draw artificial question. nutrition ex- previously evidence As cept questions the Guardian Ad Litem how prior against being Sue’s statements main provision the burden of “[w]hen life-support system, tained on an artificial

artificial hydration nutrition and itself credibly no matter how attested to outweigh benefit, shall provided its persons, may constitute a basis for a determination of burden shall refer to (“whether provision decision-maker a itself and not quality to the guardian, family a judge”) member a person.” continued life of the life-prolonging later decide to 311.978(3)(c). terminate KRS presents medical treatment. He no author It difficult to interpret what the stat- ity point. argues: (1) Instead he an ute means the word for a “burden” which, analogy statutes in some instanc person persistent vegetative state. require proof es written of an action taken We need person not decide like Sue effect, given before it can be such statutes stated, clearly DeGrella who has while 394.040, as requisites KRS of a valid competent, that should she ever be reduced will; possibility the now incom in, to a such condition as she is she now petent person experienced would want terminated. Sue change having unknown heart after has established that her “the burden of voiced family trying the choices her is now provision hy- of artificial nutrition and to effectuate. outweigh[s] dration ... its benefit.” analogy required formalities event, Surrogate Health Care making of a will is unsound because Act, just Living Act, as the specifies Will to refuse or terminate medical it supplements rather than limits com- treatment, power to prop- unlike the devise 311.984(5) mon rights. In KRS it will, erty by does not come from the state. states that impair the Act “shall not ... person’s right It inheres in a of self-deter- supersede any statutory common law or mination the choice of medical treat- right that an adult has to effect the with- ment, yet attempt- and as the state has not holding or withdrawing care.” ed to interfere in its exercise. Having determined that neither the Liv- question, As to the more difficult ing Will Act Surrogate nor Health Care evidentiary past value statements attempts Act intends or contravene preferences subsequent govern treat- supersede Sue DeGrella’s common law decisions, ment these comments made not, not, rights, we do need extend this fairly Justice William Brennan frame the Opinion by addressing ques- constitutional issue: tions which would arise if contrary family “When tells or close questions so. were Constitutional does life friends not want her only arise interpreted these Acts were artificially, ‘expressing] sustained she is legislative impair rights effort to of self- wishes terms familiar to personal autonomy determination or her, clearly lay person and ... as . protects. the constitution Several express should be asked to them. To decisions from our sister recog- states have unrealistic, require more all and for protection nized constitutional for the practical purposes, precludes rights it incompetent individual in Sue De- patients forego life-sustaining treat- Grella’s circumstances have nutrition at ment.” U.S. S.Ct. pro- withdrawn surrogate decision-making, cess of usually protection recognize previous based on constitutional We oral state- right of privacy. That is moot in ments cannot be considered conclusive because, interpret this case we acts nature. The oral directives the Assembly, they gives member, of the General leave com- a family friend or health rights mon law intact. provider significant care value as a

709 relevancy of ex- that consideration, “It is well-settled evidentiary relevant can exist states mind pressions of evidentiary there are other matters point of time a concurrence statements, without outweigh such such making of the statements the between contrary, reactions written directives to required of mind states particular regarding the voiced proved.” treatment, religious be- types of medical religion, liefs or the and the tenets choice statements of Sue DeGrella’s pattern

patient’s consistent of conduct incompetent, made before became respect own prior to decisions about his dispositive of the at not while dis- care. These considerations are hand, competent upon which are evidence Conroy, in In 98 N.J. cussed re surrogate could exercise decision-maker the 1209, 1229-30 But 486 A.2d in the circumstances substitute considerations, evidentiary fact that presented. available, may outweigh oral state- where the to with We conclude not rule them out reliable ments does for a of further medical treatment drawal guide surrogate decision-mak- evidence to vegetative state ex persistent person have been ing, such statements where of the individu within the framework ists present inas the case. made rights of self-determina al’s common law contrary, such falls with On the evidence obtaining and informed consent tion exception the parameters of the Opinion In this we medical treatment. hearsay rule now codified in the rights recognized these can be exer Evidence, 803(3),recognizing KRE Rules incompetent person the cised admissibility the of a the “statement of decision-making so process of mind, existing declarant’s state of then long as the wishes emotion, sensation, physical condition” The to terminate known. relevant to the at For where issue hand. belonging power treatment is not instance, in Dept. Human L.K.M. pur grant withhold. judiciary to Resources, Ky.App., 621 38 S.W.2d is to declaratory judgment of a action pose parental rights a termination of case de rights parties al judicially define the proof pending upon convincing clear and have, rights new ready not to create where (the evidence same standard used in the This exist, them. none or to withhold case), it proper said was attend trial court because the came previous use out-of-court statements nursing home not ing physician and prove children offered to “intense fear” of recognize patient’s right to choose to pertinent parents, though their even surrogate, through refuse treatment mind trial. state of was the time of requiring there is because Likewise, in Ins. Standard prior consent to the exercise court’s Life Jefferson Hewlett, Ky. 210 352 are, be, Co. v. S.W.2d must Courts patient’s right. (1948), an action to the life insur recover controversy cases where a open decide disap ance had proceeds on exists, controversy including a in a case of beneficiary peared, permitted our Controversy exists when this nature. prove previously that the insured had challenges the existence someone expressed intentions commit suicide. Here, support its exercise. or the facts Commonwealth, Ky., And in Wilson v. withholding act of the lawfulness (1977), our S.W.2d 569 Court ruled depends the existence further treatment showing previ the deceased’s statements underlying facts established expressed appel kill ously intention to condition, in such con her wishes proof lant been should have admitted dition, nature and the irreversible aggressor. victim was the initial condition. treatise, challenge these appellant Lawson’s The Ken- does As stated Handbook, Ed., facts; the exis- appellant challenges Law 3rd tucky Evidence 8.50, (1993): though p. even facts Sec. tence exist, stated, the and we affirm existence of such For the reasons we affirm the right. judgment trial subject of this action is of the court. matter judicial treatment, power not to terminate STEPHENS, C.J., Sue to terminate treat- DeGrella’s and COMBS and

ment, JJ., SPAIN, choice she made before was concur. state, reduced to her and retained LAMBERT, J., separate by concurs Thus, tragedy when this befell her. opinion. cases, though open for such the courts are WINTERSHEIMER, J., challenges by no dissents one the existence the REYNOLDS, J., facts, separate opinion underlying legal action is not essen- in which joins. patient’s right. the tial to the exercise of LAMBERT, Justice, concurring. be decided is a fac to IWhile concur with the result achieved one, legal If attending tual not a one. the by majority, the ex- separately I write to

physician, hospital nursing home eth the press my respect dic- reservations with to resides, patient the ics committee where opinion tum potential in the and the created kin, legal guardian or and the next all legal application for an erroneous the patient’s agree and document the wishes principles involved. condition, the if no and and one decision, disputes their order is compelled by The result is evi here the required proceed carry pa to out the virtually every dence. and com tient’s wishes. Future criminal sanctions jurisdiction long recognized mon law liability or civil turn the existence or principle person the order, absence of a court but on the facts refuse medical treatment. Tabor v. Sco pri into case. Judicial intervention bee, Ky., 254 From the S.W.2d decision-making expen vate of this sort is presented by found the evidence and as liability sive and intrusive. No attaches to court, appears trial it that Ms. DeGrella a decision refuse or withdraw treatment expressed had on the numerous occasions ain case of this once the necessary nature firmly held that her life should not be view carefully facts and are. established docu prolonged artificially and that the normal parties mented the involved. On the process dying permitted As to occur. other hand the court cannot absolve the such, it makes little difference this parties liability from do where facts applied legal as to what for the standard support exist to taken. A action false outcome would be the same. fraudulent, collusive, decision is be concerned,'however, deeply I am yond power approve of a court to be opinion may au- majority be understood to fore or after the termination of life-sustain making surrogate thorize decision or sub- ing medical treatment. judgment1 legal stituted as a standard family whereby Because the advances in modern medi- of a close technology, peo- prevail the time has come for or other cal member ple give serious to their wantéd consideration what the would have even tragedy choices if this nature should the absence of clear declaration them, they patient. befall decide what would such a standard is a Such circumstances, significant step merely allowing want done in such rel- beyond atives, friends, family personnel, make their wishes so that known providers sources, respect including writings, and health care can their re- credible port expressed decision. the wishes of (standard): majority opinion, Judgment places At several “Substituted A surrogate By phrase judgment” decisionmaking. “substitute is utilized. standard for standard, Making surrogate State Decision makes deci- Guidelines this Cases, Life-Sustaining Medical Treatment Na- sion on the basis what is known about Courts, ed., patient’s personal preferences. tional Center for State 2nd values and Compare this term is defined as follows: best interest [standard]."

7H recognized Opinion we have incompetence. it “... prior to the time of While in- rights these judgment for [self-determination obvious substituted by an can be exercised formed consent] rife the termination of medical treatment is process incompetent person abuse, potential for a more funda- decision-making long as so objection perceived moral mental patient are known.” wishes of patient may ethical values contradictory or significantly regard foregoing val- lost or influenced I un- Moreover, misleading judgment is surrogate. is a as substituted ues of the there prevail here necessary in circumstances as danger life” “quality substantial of the are known the wishes of where analytical may leak into the considerations convincingly. clearly evidenced and and understood, process. commonly it is As be neces- judgment substituted would True likely so substituted would lawful, only when the wishes of the sary, subjective any confidence as to undermine clearly patient were not ascertainable. patient’s being truly wishes were sought pre- Finally, majority has the observed. We should declare this litigation type by de- in cases of this vent family members nor doctors that neither claring that: certainly judges possess power and not attending physician, hospital “If cessation medical treatment

to authorize of nursing home ethics committee where convincing of and evi- absence clear resides, legal guard- (not and the dence the stricken had kin, agree next of all and docu- ian or have) expressed the desire to avoid pa- wishes and the patient’s ment vegeta- in persistent continuation of life condition, disputes and if no one tient’s tive state. decision, required is no court order their majority While the has established “clear patient’s carry proceed to out convincing and evidence” as standard civ- criminal sanctions or wishes. Future making, decision I remain uncertain liability il not on the existence turn applies to whether this standard to assess- order, facts court absence of a patient’s ment of the medical condition of case.” patient’s determining the wishes re- with view, fully this it must I concur with While spect to discontinuation of medical treat- persons are that all such not be overlooked majority say- ment. While the is correct in estimating duty rightly charged with the ing that the evidence here is and clear so, may do upon failure to the situation and convincing respect questions, with to both As this Court legally held accountable. unmistakably should such we state Commonwealth, Ky. 235 Bailey said in v. respect evidence to the and reiterat- 30 S.W.2d wishes must be whenever discon- Commonwealth, Ky., in O’Leary ed is tinuation of contem- (1969): S.W.2d plated. “It is decisions firmly established My greatest majori- misgiving authority about the criminal law is equal vagueness] opinion appears its ty what to be unconstitutional void [or (1) upon people the amalgamation merely it throws concepts: relevant because estimating a risk of matter rightly incom- dispositive prior declarations actual, degree with fixed and which deals petence judgment. and substituted imaginary from distinguished majority has said: unascertained, conditions.” “Sue DeGrella’s statements of choice accurately stated: majority incompetent, made before became parties cannot absolve “[T]he dispositive while not liability the facts do not exist from where hand, upon competent evidence support action taken.” decision-maker exer- could carry judgment in the who undertake to out cise substitute circum- Those persistent vegetative presented. stances of one wishes state should be problem factoring admonished to exercise the ent in the economic good utmost ingredient faith absolute public taxpayer funding obedience given directions which have been support Medicare for those in patient. nursing persistent vegetative homes or in a state. WINTERSHEIMER, Justice, dissenting. private personal very Death

I respectfully majority dissent from the matter between individual and Cre- opinion because I system believe the court However, every ator. as with other human the authority grant lacks the relief impact event people it has on other both sought proof and the standard of required indirect, direct and well as immediate high sufficiently type case. beings and remote. Human are endowed This is an declaratory action for relief by their an independent Creator with free brought originally by Sue moth- DeGrella’s will. Such free will can be exercised free- seeking er approval to feeding withdraw a ly, subject only accountability. to moral hydration year-old tube from her governments place Courts and have no in daughter persistent who has been in a equation. such an vegetative for approximately state years. The This sought purely mother decision is a secular one. a declaration of rights However, to the certain per- effect she would be ethical values are at the by Kentucky mitted very law to substitute her foundation of our modern civilization. judgment for of her daughter They and that are based on the moral law and ex- she has the to pressed through direct the discontinua- the natural and civil law. gastrostomy tion provide tubes always judicial used It is struggle a for the daughter. nourishment and water her system properly weighty resolve such questions. brings This case into sharp focus much of the current discussion about the so- problem presented here is how does great

called to die. It impor- is of society a civilized react when an individual tance define the terms of this case and is incompetent express her wishes own its application general- specifically both and her family entire and medical and hos- ly. There is an enormous difference be- pital support she believes should be al- tween the water, withdrawal of food and die. lowed to The individual circumstances also called hydration nutrition and and the tragic are indeed and have caused the withdrawal of medical treatment. In my great members of the DeGrella an- family view, majority merges concepts by case, guish. More than the individual this stating feeding pa- the artificial potential establishing situation has the for by tient a extraordinary tube amounts to a rule applied of law that could be I disagree. treatment. Sue De- similarly individuals situated would who treated, really being Grella is not she is have a I approach. different reaction and being through maintained nourishment. pri- judicial believe that intervention into decision-making expen- vate of this sort is Withdrawal of food and will water result sive and intrusive. The to terminate by dehydration. death starvation or power belonging treatment is not danger is a generalization There an over judiciary or specific grant withhold. This problem presented here and attending is here because the application its to a people broad class of physician nursing potential home consequences and the would arising recognize family therefrom. wishes to re- carefully We must consider the fuse her people classes who nutrition or possibly could 1) guardian. by requiring prior affected this There is no law decision. Sue DeGrella 2) family. nursing any and her Those in consent for homes the exercise of handicapped and the such a long similar decision. has been a situations. There 3) population rest of common law to refuse medical treat- by competent face a similar ques- situation the ment adult. This is addition, ever-pres- future. there is the tion of provided by whether food and water ill nonterminally from a support. food and water a tube is means of life an artificial public poli- violates comatose individual It is not medical treatment. cy of this State. eat, or Sue is unable to chew DeGrella 311.978(3) provides part receives and water K.R.S. swallow. She food always pro- which has nutrition and gastrostomy means of a tube captures the phrase this I believe surgically been inserted in her abdomen. vided.” legislative intention thrust of the Without the use the tube reg- In the 1992 dehydration. language expressed. ultimately clear die starvation Assembly, the the General experiences pain ular session of She discomfort food amendment feeding use of so-called “No and water” by reason of the tube. Kentucky Living Will Although offered to the Stat- medical literature ref- some I is ute believe this further recovered was defeated. erences to individuals who have Assembly part, that the General had from this condition least in evidence opinion persistent preference providing basic necessities general medical is that a water. vegetative and one of such as food and state irreversible the witnesses testified that chances particular circumstances of recovery infinitesimal but nil. were questionable prior very it incompetent person a now did statements of Sue DeGrella not execute what for a decision Living pursuant proper can form basis now known as a Will designate hydration from K.R.S. a health to withdraw nutrition and 311.624 care person. There almost unanimous pursuant to 311.978. is K.R.S. She expressed not so her had prior injury testimony could done that Sue DeGrella being on against her maintained feelings because these statutes did not exist support system. It should time. life an artificial testimony of indicat- be noted that none reaching largely In a decision on a based specifically considered the ed that had judicial interpretation public policy of nutrition withdrawal expressed by legislature I is believe it hydration. important existing Living to consider the is legislation legal in order The issue whether Will to determine such fundamental statements, public regardless in this policy case. The medical evi- such verbal credibility is the witnesses who attest dence indicates Sue DeGrella not them, terminally legal basis for ill. She would not soon die can become be- support system and injuries. cause of her if she of a life Even were discontinuance Will, terminally hydration. This Living specifically ill and had a nutrition and Har- remedy sought granted here not concern. Cruzan v. could not be is a new See (Mo.1986); mon, re under the of that In terms statute. with- 760 S.W.2d (1987). Jobes, drawal of nutrition is N.J. 529 A.2d in a authorized terminal case even importance far than Matters of less require- precise where the statute with its may legally be based on death life followed, ments for execution has been in- matters purely expression. Such oral public only interpretation of the reasonable con- enforceability clude: of various policy supporting the statute is that such Frauds, K.R.S. tracts the Statute of under necessarily inappropri- withdrawal must 371.010; against Wills other prohibition ate and unauthorized circumstances writing, 394.040. Of addi- than in K.R.S. imminent, where is not death otherwise impossibility tional obvious concern in this The Living applies case. Will Act ever really know whether patients. ill terminally heart, expressed or change had a either unexpressed actually faced Kentucky absence of statute when directly Here there was point need re- life or death decision. increased the testimony generalized oppo- public analysis. repeated to a policy sort careful An about objective requires supports pa- sition artificial life review these statutes injuries. logical conclusion that the withdrawal of tient before she suffered addition, In there is a ty technical judgment of the substituted rule would argument authority ultimately to withdraw life result in the death of the ward. supports governed by agency law. Oral That was not the case in Strunk. I do not authority case, such as testified to in this holding believe that the in Strunk is suffi- does not requirements meet the authority of a dura cient to authorize the withdrawal power ble appointment pursuant food and water under the substituted K.R.S. 386.093. The common principle judgment rule in addition, this case. authority agent termi Strunk has been eroded the enactment upon nates incapacity principal. 387.660(3). of K.R.S. Rice Floyd, Ky., 768 S.W.2d 57 Cf. Regardless of how sincere the witnesses (1989). The seriousness of this situation family are, sym- how much we can must be balanced and reconciled with exist them, pathize with I do not believe Strunk

ing governing laws existing situations should permit be extended so as to death apply persons. to all because another or court believes my view, under law neither that it is in her best interest. See Justice guardian or the family of a nontermi- Steinfeld’s dissent in Strunk. nally ill judg- use substituted In reviewing type there ment to make a decision which results in precise must be attention specific patient. death of the agree I cannot subject matter presented. The broad sub- that a substituted standard ex- stantive issues connected with mercy kill- ists in Kentucky because of Strunk v. ing euthanasia, suicide, assisted or life- Strunk, Ky., 445 S.W.2d 145 sustaining treatment, must be dis-

As noted judge lengthy the trial in his tinguished from the removal of essential opinion, I supra, Cruzan stated that there food and patient. water to the If as a was principal "... no legal basis which result of this decision Sue DeGrella’s death permits co-guardians follows, in this ultimately case to being it will not be from choose the death of their state, ward.” persistent vegetative nor from beating. the effects of the vicious She will Kentucky regarding power aof killed, die or you prefer, by guardian expressed 387.660(3). is in K.R.S. inherently lethal action of withholding food authority The guardian of a pursuant to and Probably water. that can be accom- the Kentucky statutes only can be exer- plished by either surgical removal cised in categories limited for the purpose tube, feeding by withholding life, achieving appropri- health and food and water. The result is the same: ate care of the guardian ward. A is a death from starvation. fiduciary and it is difficult to understand any circumstances that would cause the It argued long-term could be use death of through a ward proper exer- a feeding intrusion, tube is an artificial guardian cise of responsibility. The supply but the of food and water to one to refuse medical treatment in the case of a supply who is unable themselves is cer- nonterminally ill personal a tainly is deci- not artificial. aCan valid distinction sion type and is not the of decision which a feeding be drawn between the guardian appointed Kentucky under stat- and feeding by the force of an infant a may utes make on behalf of an incompe- parent? incompetent This case is about an tent. express adult cannot her wish as to life express or death and who did not so Strunk, supra, Reliance on margin- is of prior injuries. wish to her al value. in This Court a 4 to 3 decision guardian held that a could consent to the This fully matter cannot be considered removal of one of the kidneys ward’s for without reference ques- to constitutional transplant to the ward’s brother in order to tions particularly in view of the recent deci- save the brother’s life. This case is Cowherd, (6th based sion in Doe v. 965 F.2d 109 entirely on different Cir.1992). facts. Here the act involving incompe- a case an sought performed tent, to be under the authori- relating matters to the so-called

715 is choose because the to live “right questions relat- to die” also involve right or the to have ing constitutionally protected right the ultimate Georgia, 408 U.S. accept rights. and Furman to live treatment. Cf 238, 2726, L.Ed.2d 92 S.Ct. 33 346 State, As a ward of the DeGrella Sue (Brennan, Concurring Opinion). J. constitutionally protected right enjoys the by It is asserted one Amicus accept life-sustaining live and treat- 900 medicaid residents deprived approximately of her ment should not be Kentucky re- equal long-term care facilities anyone process of law or without due fluids ceive nourishment and protection considerations. feeding Financing Ad- tube. Healthcare In this an adult ward ministration, Department of U.S. Health & disabilities, of her and because Services, Summary Human User defined payments federal receives state and Total Report for User Selected Criteria: per Any decision care treatment. with Number of Facilities Residents mit discontinuance nutrition 27, Feeding, June Assistance delegation authority state of that would be provided in this case subject action to constitutional restraint same level with the treat- considered 133 Ill.2d Longeway, and review. In re Cf. by many similarly situ- ment received 33, 780, (1989); 139 Ill.Dec. 549 N.E.2d 292 people in this ated State. Lawrance, (Ind.1991); N.E.2d

In re 579 32 pre- Colyer, problem analysis re Wash.2d P.2d 738 real 99 660 with (1983). majority opinion lies in its sented application persons future potential Director, Dept, Cruzan v. Missouri majority ap- opinion situation. The similar Health, U.S. S.Ct. adopts that there are parently the view L.Ed.2d characterized the deci- significant distinctions between terminat- guardian feeding sion to withdraw a withholding ing food water as a person’s tube decision to terminate a withdrawing life-sustaining treat- There life. would be an contra- obvious support troubling ment. It is for such if Kentucky attempt diction to avoid opinion is found a footnote that statutory system its persons assist I am not deals with medical treatment. provided disabilities as 92 KAR 20:026 if this statement is to be considered as sure 3(5)(a) 3(2)(b) and 907 KAR 1:022 § § it applica- whether holding this case or very allowing fine There is line in to future similar situations. ble death of natural because circumstances actively Certainly when is room for consideration assistance abandoned and there participating Philo- by principle in the onset of death with- of double effect. support. you may drawal of foresee the result but sophically Constitutional values relating patient’s questions in life intend it. The hard are those interest part ex- decision-making pro- require must be between what is choice traordinary ordinary Right cess. See The Due Process means and what is Life Impact question, generally in Die it de- Right Cruzan and its means. Without Laws, University Pittsburgh pends 53 Law Re- on the circumstances each case. (1992). competent always 212 refuse to view 208 A adult could treatment, accept medical but whether patient There is doubt that the would and water received nourishment food and as have a to refuse treatment may placed through a tube be in the same voluntary such a refusal would be a waiver significantly dif- category as treatment is a her sense. The to live question. ferent requires law waivers of constitutional inter- rights subject pro- Federal important ests and other be and State Constitutions by guardian very limits on the decision careful review. Fuentes vide Cf. Shevin, change 32 407 U.S. 92 the current level treatment S.Ct. degree re- (1972). though patient which would L.Ed.2d Even this absolute, may pre- in her There should precedes to live not be it sult death. sumption present that her In Kentucky, the test whether the delib- patient’s served the living relating best interests in erations to the life or death deci- because it sustained her in patient “quasi-criminal” life a nonbur- sions for this Denton, densome manner. in presumption supra. Surely Such a nature. this patient any should stand compel- unless there is others should some be afforded ling the same protection given reason to override constitutional it. There should prosecution. not be an an accused in a criminal arbitrary presumption that the Therefore, patient “beyond waive her to live reasonable doubt” standard of rejecting applied evidence should treatment without type this of ease. producing Roney, See Messer v. sufficiently clear evidence of her Ky.App., (1989). 772 S.W.2d 648 prior refusal. There any should not be reduction in her living interest based law, applying Kentucky In the U.S. Sixth only on an quality assessment of her of Circuit Court has indicated the author- life, but rather it should be evaluated on ity guardian of a to vindicate one interest the benefits provides. her treatment How carefully must be scrutinized if these apply depend considerations on vari- potentially it interferes with another inter- Cowherd, ous factors as raised in Doe v. patient. est of the Doe Doe v. Cf. supra. Austin, F.Supp. 597 (W.D.Ky.1986). Cowherd, the U.S. Sixth Circuit deter- The legitimate interest of a mined Kentucky requires live not suddenly disappear did when her process same level of due given to defen- guardian, relatives, physician hospital dants in proceedings giv- criminal caregiver must be declared their intent to end treat- en in proceeding involving state allegedly pursuit ment of her wishes. deprivation the intentional of an individu- evidentiary If the standard is reasonable constitutionally protected al’s interests. intent, proving prior doubt for it would Commonwealth, See Denton v. Ky., 383 necessarily prevent waiver S.W.2d 681 judgment. based on substituted See Cru Director, 284-86, pp. Cowherd held zan v. 497 U.S. at Kentucky violated the p. S.Ct. at guarantee constitutional equal protec-

tion using procedural different stan- troubling it to read some persons dards for with mental illness and expert testimony presented at trial. those with mental though retardation even It is disturbing physician that one referred both classes were threatened with the same longer meaning- to this life as “no loss constitutional interests. ful” and that her continued care would applies “beyond reasonable doubt” society’s weaken preserving commitment to proceedings affecting standard civil men- “meaningful” testimony lives. Other was tal apply illness and it must the same crite- to the effect that she was “dead” and “no ria to mental retardation cases. Such a longer person” longer because she no analysis applies constitutional in this case image; reflected a divine and other testi- cases which follow it. mony alive, that even if she is there is no continuing “medical benefit” to her care. The “beyond reasonable doubt” standard Such sworn statements demonstrate this by was used Supreme California Court type patient’s vulnerability and raise proceeding commitment in which that serious concern that a decision not to treat liberty against said the confinement could be based on unconstitutional biases only is second to life itself. Hop, In re 29 against persons with disabilities. 82, 721, Cal.Rptr. Cal.3d 171 623 P.2d 282 (1981). Certainly state threatening actions If a is to die from refusal of food the life of a or a ward should fluids, be or then this should an informed conducted with many protec- at least as choice and not as a result of a decision tions, more, provided as are against appropriate rendered process without due threatening state action liberty equal protection considerations. There ward. is much that we do not know or understand

717 patients class of such as the general life in life under such an entire about legiti- are distressing presented permanently unconscious. There circumstances society by everyone here. mate in our concerns or mer- the trend toward euthanasia about contemporary The media-driven culture The cy killing and assisted suicide. careful “right refers this as a to die” case. It is “beyond standard a reasonable doubt” easy phrase simple an remember but “stopper” might conceivably as a on serve apply. premise difficult There is a false slope” “slippery toward euthanasia and inherent in it which assumes human mercy society accept a killing. Our cannot beings regarding a choice death. As death, but a culture of rather culture by in this noted one of the Amicus life. persons may real issue is whether chose allowing proceed disease to natu- between “slippery An of the extreme illustration rally delaying ultimate death death Alexander, slope” presented in problem is medical intervention. The Dictatorship, Medical under Science England Medicine, New Journal of Vol. interesting It is to note that in the Feder- (July 14,1949) and is noted No. at Cruzan, supra, al case the court found opinion in in majority in Footnote 11 regarding that her others statements Mack, Mack v. 618 A.2d 744 Md. her desire or die to live under certain condi- (1993). purpose tions were unreliable determining her intent and insufficient to any judicial I believe that intervention support judgment. claim for substituted appropriate only individual and those Cruzan, In Justice an Scalia delivers excel- family, phy- specific in which the cases concurring opinion prob- lent specifying the hospital agree. sician and the cannot lems type associated with this of decision. judge this case the trial used “clear and convincing” standard. He should not be guidelines suggested The by majority certainly faulted this was for that because opinion by very their title relate life- impression. first I would not a matter of sustaining medical This is treatment. rule “beyond direct a reasonable doubt” such a It is a case. case about with only retroactively prospectively. system through drawal which the receives nourishment and development The of standards in this water. and water Food are basic human type of situation best left wisdom process feeding needs and the is not Assembly. Reliance General treatment under circum Decision-making State Guidelines for stances. Justice Nolan’s dissent Sustaining in Life Treatment re- Cf. Medical Brophy England Hospital, v. New Sinai concept of medi- quires expansion on the (1986); Mass. 497 N.E.2d 626 Ban a representative cal demo- treatment. non, Rx: 12 Hu Dehydration, Death part legislative society, cratic it is Review., man Life 70 No. 3 public policy. function to decide matters greater ques- could Certainly, there only state interest such a policy the matter of life- public tion of than case is preserving its interest life. sustaining hydration. A vari- treatment or goal There can be no transfer of that to a medical, ety philosophic con- ethical and assuring state interest be addressed when decid- siderations must accurately wishes are Primar- determined. ing each such matters which affect serious decision-making ily, process re- should every judicial system individual. private judicial main and I believe that in- application is better for the suited system open remain should to hear matters terpretation they es- of the laws once relating of life-sustain- termination democratically legis- tablished elected ing dispute when a arises body. among lative appropriate parties. Therefore, respectfully I must dissent specific

These must limited to a cases majori- from and individual basis. The removal of tube the decision enunciated feeding applied opinion I automatically ty judi- cannot be because believe system

cial Hawes, lacks the authority grant Jr., Hawes, Lucius P. Richard- requested relief proper son, Burman, and that the stan- Hopkinsville, Cameron & for proof dard of “beyond should be a reason- appellants.

able doubt.” Kirkham, Hopkinsville, John P. appel- lees.

REYNOLDS, J., joins in this dissent. EMBERTON,

Before GARDNER and WILHOIT, JJ.

WILHOIT, Judge. appeal judgment denying This is from a reparation appellant, basic benefits to the Danny Key. R. KeyMr. entered the cab Danny Beverly R. KEY and large appellee truck owned Ronald Key, Appellants, W. Rager through passenger door after finding the driver’s side door locked. Be- sliding seat, fore over to the driver’s (d/b/a Rager Trucking), Ronald RAGER appellant attempted light cigarette, at Co., United Southern Assurance explosion which time an ap- occurred. The Rager (individually), Appellees. Ronald pellant was thrown from the truck and 92-CA-85-MR. injuries. sustained severe burns and other appellant complaint alleging The filed a Appeals Kentucky. Court of negligence seeking claims in addition to reparation basic appellee benefits from the March 1993. United Company. Southern Assurance The Discretionary Review Dismissed summary circuit court entered Supreme Aug. negligence claims and dismissed

appellant’s claim reparation for basic bene- hearing making fits after evidence and findings appellant of fact. The concedes entering the circuit court was correct summary judgment negligence on the claims, disposition but takes issue with the seeking of his reparation claim basic bene- fits. Supreme Court construed Ken-

tucky’s Reparations Motor Vehicle Act State Farm Ins. Co. v. Mutual Auto. Rains, Ky., 715 and held S.W.2d (BRB) reparation that basic benefits payable to of motor vehicle acci- “victims injuries arising out dents use (emphasis a motor Id. at 233 vehicle.” original). majority The six-member adopt “positional Court declined to risk” doctrine advocated Justice Leibson in his dissent in Rains. See id. 234-37 (Leibson, J., dissenting). majority took into purposes account the of the Motor Act, Reparations pro- Vehicle which are to system vide for a of “motor vehicle acci-

Case Details

Case Name: DeGrella by and Through Parrent v. Elston

Court Name: Kentucky Supreme Court

Date Published: Jul 15, 1993

Citation: 858 S.W.2d 698

Docket Number: 92-SC-756-TG

Court Abbreviation: Ky.