*1 wоrker and a he an asbestos length of time had been did not establish exact testimony That smoker. appellant’s dis- disease contributed that each proportion not have been damages should suggests, not that the ability not yet has that medical science only but apportioned, percentages. This as exact proportions calculate the able to the causes of the fact does not diminish the inability Wade, distinct and were, unlike the indivisible harm harm rough approximation. capable
Affirmed. A.2d 1271 Darrell
In re OF DORONE. ESTATE Doron, Parents Appeal and Carol of William DORON Dorone, of Darrell Natural Guardians a/k/a Darrell Dоron. Pennsylvania. Superior Court 6, 1985. Argued June 27, 1985. Filed Dec. *4 Bell, R. Philadelphia, appellants.
William for SPAETH, McEWEN and Judge, President and Before BECK, JJ.
SPAETH, Judge: President of
This from two orders Court appeal is appointing a Lehigh County temporary of Common Pleas necessary as to to blood transfusions guardian consent son, who was a during emergency surgery appellants’ Hospital Center and was Lehigh Valley at The Appel accident. unconscious as the result an automobile purportedly Witness and had lants’ son was Jehovah’s religious effect that for alert card to the signed medical given he not to be blood transfusions. reasons did wish should them argue appointed that the court have Appellants son, hospital than a of their rather temporary guardians administrator, authorizing that the orders blood trans and and right to self-determination infringed their son’s fusions As religion.1 to freedom of right his First Amendment prove neces developed, at least one blood transfusion did hospital where during appellee, As sary surgery. have performed argues appellants that the court’s exceptions to file to by failing waived all issues that argues the case is moot. We hold orders. It also excused; case will that the exceptions the failure to file moot; orders did not violate is not and that court’s son, аppellants’ either self-determination rights affirm the orders. religion. We therefore freedom first, if all appellee’s arguments We must consider moot, is waived, the end been or the case issues have of the matter. action, party this appellants’ son is not himself a
1. We note that ensuing appellants have by our discussion that we do not intimate They standing, rights. standing Amendment do to raise his First however, they appointed their argue son’s should have erred in not temporary guardian, whether the trial court decide rights were appointing we consider whether their son’s them must not, violated, violated; rights were his not as we conсlude were appoint no appellants his violated the court’s refusal to then right appellants. *5 64
The trial court issued in response the orders to emergen- cy telephone calls during which the attending surgeon and hospital the assistant administrator said that unconscious; that he would die unless surgery were performed; that if immediately complications developed during the he die surgery, would without a blood transfusion; parents but the patient’s would not autho- a op. rize Slip transfusion. of tr. ct. at It 1-3. is not surprising that these circumstances orders were first, 1, 1984, August terse. The dated simply appointed a hospital administrator temporary guardian to consent to necessary blood transfusions incident be second, performed day. August 3, The dated added as words, preface a “it appearing appoint that failure to a temporary guardian for Darrell Dorone will in irrepa- result ” ...; harm to alleged incompetent rable this language tracks the statutory provision under which the trial court 10; acted. of tr. ct. 20 Slip op. Pa.C.S. 5513. Neither § contemplated order conformed to form by Pa.R.C.P. 1517, issues, which a statement of the requires a statement facts, discussion of the questions of law and the court’s conclusions. circumstances,
In the we do not believe that excep tions to necessary. the orders were anWhen order neither comports requirements with the of Rule 1517 nor contains a suggestion exceptions must filed in pre order to right appeal, failure exceptions serve to file will be excused. 31, Commonwealth v. Pa. Derry Township, 466 41-42, 606, (1976); 351 A.2d 611 v. Tallon Hose Co. Liberty 1, 530, 1, Pa.Super. 1209, No. 336 534 n. A.2d 485 1211 n. 1 (1984); v. Co., Storti Minnesota Mutual Insurance Life 26, 28-29, Pa.Super. 1062; 331 479 A.2d Barton v. Penco, 202, 204, Pa.Super. (1981). 436 1223 A.2d D’Italia, see v. 287 Pa.Super. 233, But 429 A.2d Cornell (1981). Accordingly, appellants’ failure to file excep did tions not result waiver of the issues seek appellants to have us decide. remains, however, is whether these question general moot. As a rule an actual case have become
sues
stages
judicial
exist at all
controversy must
or
moot be
may
and a case once “actual”
become
process,
Pennsylvania
Mining
Coal
change
cause of a
of facts.
Commonwealth, Department
Environ
Association v.
of
Resources,
Com
(1982);
mental
1,
Moreland School 75 Pa.Cmwlth. 461 A.2d accord In re Remley, (1983); Pa.Super. (1984).2 A.2d 514
Here we may assume that
the particular patient,
son,
appellants’
is
reasonably
not
to suffer
likely
another
emergency involving surgery incident
he is
which
sub
jected
by
However,
a transfusion
court order.
there is a
and it is reason
large class of other
Witnesses,
Jehovah’s
ably likely that at least some of these
be
will
involved
emergencies
in which a doctor will
seek
court order
authorizing
Moreover,
a transfusion.
the issues
by
raised
capable
this case
evading
are
if the general
review
rule
applied,
mootness
a transfusion
ordered
a court
in an emergency
always
given
will
appellate
before the
*7
process
completed.
rights
can
Finally,
alleged
be
the
to
have been
right
violated include the First Amendment
to
religion,
public importance.3
freеdom of
a matter of
We
therefore conclude
this
is
case
not moot.4
may
deciding
important
2. Another factor that
be
in
whether a case is
Carros,
is
moot
the existence of a full
supra,
record. Janet D. v.
240
Here, however,
Pa.Super. at
On the merits of this
the issue
is:
the evidence that
Specifically,
it
the court
quality
a
transfusion
such
refuse
blood
guardian to consent
temporary
a
appointed
should not have
not an
given? Obviously,
this is
being
transfusion
the context
question;
only
abstract
can
answered
of the situation that confronted
particular
fаcts
(1971).
appeal
appointing a
of an order
There the Court heard
necessary
the life of
to save
to consent to blood transfusions
Witness,
though
had
the transfusions
Jehovah’s
even
unconscious
here,
alleged
violated
already
given.
that the order
As
it was
Jersey Supreme
rights.
Court said:
Amendment
The New
First
controversy
patient]
and no
former
is well
is moot.
[The
prospect
at some
longer
plaintiff hospital. The
of her return
day
is too remote to warrant
declara-
in like circumstances
future
tory judgment
Nonetheless,
public
parties.
as between the
cause,
*8
we
and for that reason
a resоlution of the
interest warrants
accept the issue.
579,
A.2d at 671.
Id. at
279
336,
(1976),
by
McAuliffe,
v.
A.2d 634
cited
5. Hamilton
277 Md.
353
brief,
contrary.
case
appellee
also not to the
In that
at 15-17
its
authorizing
sought declaratory judgment
plaintiff
that a court order
a
against
violated his constitutional
transfusion
his wishes
blood
highest
rights.
appealed
the
court of
The order had not been
moot,
though
Appeals
the
found the issue
Even
Court
state.
specifically
distinguished
judicial
the
the
review of
the situation where
Wade,
sought
U.S.
original
appeal, and cited Roe v.
410
order was
on
705,
(1973)
113,
Kennedy Hospital
35
147
and John F.
93 S.Ct.
L.Ed.2d
576,
670,
Heston,
support
supra,
N.J. at
A.2d at
in
v.
3,
Id.,
637 n. 3.
On injured the in was an automobile in Jersey. accident New Surgery performed, was but he lapsed into a transported coma and was by helicopter the appellee, Lehigh Valley Hospital Center, a regional center, arriving August trauma there on Slip op. 1. of tr. ct. at 3. August 1,
On counsel for appellee orally petitioned the authority trial court for to administer a blood transfusion to patient. parte the A ex hearing brief was conducted by telephone. court heard testimony by patient’s the attending surgeon and the hospitаl administrator, assistant testimony the being transcribed anby reporter official court listening who was Slip op. extension. of tr. ct. at 2. The doctor testified that the patient had “an acute subdural hematoma” and that surgery, “without death immi- [was] 8/1/84, nent.” N.T. 2. The doctor further testified that the was in operating room awaiting surgery, and that it might possible while do the surgery “be without a transfusion,” “very blood rapid” and bleeding “severe” might result that require “would transfusion order to Id., save his life.” 2-3. The assistant hospital administra- tor testified as to the name age, which he Id., 22 years. believed be 5. The trial court “found that would die were surgery not immediately performed”. of tr. Slip op. ct. at 2. The “also court found patient] die without blood transfusion if [the complications developed during operation”. (foot- Id. omitted). note The court entered an order appointing the hospital guardian administrator “temporary to consent to blood transfusions to be patient] administered [the surgery being connection with performed by doctor at [the the hospital]”. Order of 8/1/84. after Immediately hearing, performed. The temporary Appellee 6. appellants’ reproduced has moved to strike brief and ground record on include exhibits not of record. We motion, deny aрpellants’ but note improper, we action was and, follows, apparent will from the discussion that we have confined ourselves to the facts of record. *9 to a transfu- present during surgery, the and consented was tr. 4. Slip op. ct. at sion. appellee, for August petition by
On on oral counsel by telephone, the parte hearing ex was conducted second official court re- testimony again being transcribed attending on The listening was an extension. porter who developed had a blood clot surgeon patient testified that the he that the clot should be in the brain and that believed “in the was surgically immediately removed because mas- danger sinking further into coma irreversible “in of death from damage” danger and was sive brain 8/3/84, The doctor further testified that the that.” N.T. 6. low”, “dangerously and already blood count was patient’s administered the during if no transfusion could be hemorrhage from the “could die the surgery [that Id., Finally, the doctor testified that might 5-6. result]”. father, mother, fian- the spoken patient’s he had with cee, minister, the had also his and that while father surgery signed consenting surgery forms —both August surgery 1st and the performed that had been on August should be performed that the doctors believed transfusion because had not consented to а blood 3rd— they Id., 6-7. The assistant Jehovah’s Witnesses. were testified, indicating willingness his hospital administrator id., temporary guardian, again to serve as the him appointing entered an order thereupon and the court transfusions to be guardian to consent blood “temporary pa- and the in connection with administered” Order of 8/3/84. recovery. tient’s temporary guardian departed had
After the doctor and room, that an the court received word operating for the his in Philadel- telephoning from law office attorney was call attorney “patched into the conference phia. for verbally pa- his appearance and then entered ... [the ct. n. A rather extended Slip op. of tr. at 8 21. tient]”. court, attorney, and counsel between colloquy had occurred The court summarized what appellee ensued. call, concluding that it was attorney’s by saying before *10 about “to dictate record an order formalizing” its appointment verbal of the temporary guardian. N.T. 8/3/84, 13. The then court invited the attorney to make such he In statement as wished. Id. the ensuing statement the attorney said that he assumed that patient when the injured, carrying Id., he was a medical alert card. He explained 14-15. that as a member of Jehovah’s Wit- he nesses himself carried such a card. Id. court responded August that at 1st hearing it had been patient advised had been carrying “some kind of as identifying card him a indicating Jehovah’s Witness and transfusions”, something about blood but that the court had not seen the card because it apparently had left in Jersey patient’s personal New with the effects when the patient was transported by helicopter to appellee hospital. 14-17. permission, Id. With the court’s attorney read from his card. He said that his card included the state- “I ments: direct that no blood transfusions be administered to though me even deem necessary preserve others such to my life health”. “This is in my rights accord with as a patient and as my beliefs one of Jehovah’s “I Witnesses.” release hereby hospital the doctors and the of any liability for damages refusal. my attributed This document is valid, unconscious, if I even am and it is binding upon my legal And, heirs or representatives.” “The Bible com- mands: Keep abstaining from blood”. The attorney fur- ther providing place described his card as for the bearer’s signature. Id., 16-18.
As we noted at opinion, have the outset of this appellants argue that should appointed have been temporary guardians, and that in appointing hospitаl administrator temporary consent to blood trans fusions, the infringed son’s, trial court their the patient’s, right to self-determination and his First right Amendment In religion. support argument, freedom this appel lants cite in which cases courts have competent allowed Appel- refuse blood transfusions.7 Witnesses to Jehovah’s the trial court should these cases reason from lants under judgment, of substituted the doctrine applied incompetent try to determine what a court will which to make done had the been able would have doctrine, applied appel- trial court this Had the a decision. from the evidence of mаintain, have found lants it should card, standing his possession of a medical alert his Witness, appellants refusal of and the as a Jehovah’s transfusion, the patient to consent parents Appellants Brief of refused a transfusion. himself have *11 81. appellate applying decision Pennsylvania
We know of no
of
judgment
to allow refusal
of substituted
the doctrine
circumstances,
appellants
in any
and
medical
treatment
Moreover,
the doctrine has been
have cited none.
where
of
to
refusal
followed,
applied
it
allow
typically
has
incompetent
of an
who
life-preserving treatment
behalf
life expectancy, Superin-
ill
a limited
terminally
is
or has
Saikewicz, 373
School v.
Belchertown State
tendant of
Conroy,
Matter
(1977);
98
728,
417
Mass.
N.E.2d
370
Quinlan, 70
10,
(1985); In re
N.J.
N.J.
Id. at 374-75.
Supreme
taken
approach
by the
Court
New Jersey
in its recent decision in Matter
supra,
Conroy,
also
petition by
instructive. That case concerned a
*12
ill
incompetent,
terminally
of an
home
nursing,
patient,
seeking permission
feeding
to remove her
tube.
In discuss-
the
ing
patient
how
determine what
would have done if
herself,
to choose for
the
said
Supreme
able
Court
it
array
evidence,
including
could consider a broad
of
written
documеnts,
members,
friends,
oral
to family
directives
or
providers,
powers
health care
of attorney,
durable
reactions
the
had
patient
expressed regarding medical treatment
ad-
others,
patient’s
ministered to
pattern
the
consistent
of
respecting
care,
conduct
decisions about his
medical
own
tenets of
patient’s religious
and the
the
98 N.J. at
belief.
361-62,
The trial in opinion, court states its slip op. of tr. it, ct. at that given confronting the situation adopted approach the Appeals United States Court of Judge J. Skelly WRIGHT, who, circumstances, in similar wrote: final, compelling, and reason for granting the emer-
gency writ life in hung was that a the balance. There was no time for research and reflеction. Death could minutes, have mooted the cause in a matter of if action preserve were not taken to quo. status To refuse to act, only action, to find later that the required law was a I risk was I unwilling accept. determined to act on the side of life.
Application the President and Directors George- Inc., (D.C.Cir.1964). town 331 F.2d 1009-10 College, agree determination, We with the trial court’s and hold that appointing hospital orders administrator temporary guardian to consent to blood transfusions were properly issued.8
Appellants’ argument
patient’s
that as the
par
they
appointed guardians
ents
should have been
is without
Probate,
merit. Section 5513 of the
Estates and Fiduciaries
Code,
orders,
under
trial
its
provides
which the
court issued
dissent,
entirely
saying,
8. JUDGE BECK is
correct
in her
this
opinion
narrowly.
disagree
should be read
While we
view
with her
speaking
the trial court should be reversed for not
with the
fiancée,
patient’s parents
emphasize
we
that this is because in the
circumstances of
case the
need
this
was immedi-
ate;
parents
already
had
demonstrated their own view
inform-
transfusion;
ing
surgeon
would not consent to a
and the
simply
enough
gather
trial court
did not have
time to
sufficient
evidence,
finding
quantity
quality,
either
terms of
to warrant a
competent.
that the
would have refused blood transfusions
if
today
Our decision
does not reach situations in which the trial court
delay
may
grave
its decision without
risk of death or other
consequences
patient,
irreversible
or situations where clear and
convincing
competent
evidence
what
would do
immediately available to the court.
*14
petition
hearing
required
“notice of the
shall be
as
that
to the court to
feasible in the circumstanc-
appear
shall
emergency
In the
situation governing
20 P.S. 5513.
es.”
§
orders,
the court acted
its
granting
these
within
to,
in not
notice
requiring
testimony by,
discretion
apрellant
that
father had
The doctor testified
appellants.
surgery,
appellants
and that
“were aware
consented
to consent to
the risks of
refused
a blood
[but
seek a
transfusion]”, and “were aware
we would
Court
8/3/84,
N.T.
It is
[authorizing a
6-7.
Order
transfusion].”
formal
required
appel-
that had the court
notice to
evident
testimony,
heard their
the result would not have
lants and
different;
discussed, testimony confirming
as
we
not
opposition to a transfusion would
have been
appellants’
of the doctrine of
application
to warrant
substi-
sufficient
Moreover,
trial court
for the
to have
judgment.
tuted
appellants temporary guardians would have been
appointed
par-
self-defeating:
guardians
the court knew that
necessary
consent
to achieve
given
would refuse to
ents
save
necessary
the court had
found was
properly
what
guardian
of a
appointment
life. When
here,
court,
it
the court
the discretion of the
as was
within
has, may
who
guardian
not select as a
someone
should
have,
incompetent.
that of the
In re
an interest adverse to
98,
The orders of the trial court are BECK, dissenting opinion. J. files a BECK, dissenting: Judge,
I dissent. narrowly: issue wheth- sensibly frames the majority proper that was quality” er the evidence was “suсh to consent to a appoint temporary the court to member. for an adult Jehovah’s Witness transfusion blood Unlike the I conclude at the majority, point that the trial court the assistant appointed hospital adminis- guardian, trator as the court did not have evidence of “such should quality” its action be affirmed. Other relevant necessary evidence was available to the court and for its determination. agree
I that the existence of the medi- majority with the *15 alert card not an support application cal alone would of the court, however, The judgment. doctrine of substituted trial not hear the request testimony patient’s did or the fianсee, present or his in the parents hospital. who were situation, in this the had emergency judge readily Even available, to by telephone, prepared witnesses who were to, things: as other the testify among whether and, did, card if he signed the medical alert under what circumstances; adult; whether the was an and firm patient’s whether the beliefs were and whether he have adhered to them death was certain. The trial would testimony. court should have heard this that, case, particular It in this even after may well be judge such the trial would have been hearing testimony in intent had not justified concluding that the The could then have suffiсiently proven. properly court temporary administrator as appointed hospital the assistant to transfusions. consent to blood to hear the The excuses the trial court’s failure majority (the court’s) of “its testimony ground available on the (the committed to the knowledge parents) were tenets of op. Jehovah’s at 73-74. In Maj. Witness.” testi- necessary action of this nature a court cannot refuse in advance what that because it concludes its own mony I of the deny urgency do not the testimony will be. parents’ in this case. The by judge situation faced the trial however, to the fiancee’s was availаble the testimony, and as the doctor’s and the emergency on the same basis judge administrator’s, testimony and such hospital assistant before he decided to judge essential the the appoint hospital guardian. assistant administrator Osborne, In re majority 294 A.2d cites 374-75 (D.C.1972), proposition judgment for the that substituted reluctantly “it applied be and that is better ... should appraisal patient’s personal make a the desires first-hand Id. for choice.” I that a ability agree rational expression first-hand of his her de- competent patient’s court. The guidepost portion is the best sires on, Osborne majority however, to con- quoted goes by that, asking in possibility clude the absence “give instinct weight a court should known patient, at 72. a statement comes op. Such Maj. for survival.” always state interest stating compelling close very sustaining any life in situation. with very quoting approval
I am concerned trial passage by affirming court’s action above testimony, majori- take of its failure to available spite I do broadly will read more than intended. ty’s opinion in the requiring in this case as courts holding not view incompetent treatment approve life-preserving future to *16 face in a situations in the variety emergency adults broad patient’s contrаry. intent of available evidence holding emphasize the narrowness I would therefore life must preserving in case. state’s interest in this stronger personal much interest give way Conroy, of his own life. Matter 98 directing course 348, (1985). 1209, Competent, A.2d 1223 N.J. 486 medical treat- permitted are to refuse generally persons Id., at A.2d ment, risk of death. at even of incom- I the same should be true 1225. would hold their desires as if it can be determined persons, petent would continue to constitute competent when expressed Osborne, supra, In re intent. See A.2d at present their compel- the state must have a (rejecting view 375 n. life). sustaining interest ling testimony, refused to hear essential the trial court
Since case, I reversed. proper in a