*1 a trade customers’ names constituted compilation their secret, equitable Renee to appropriation of which entitled chancellor, however, injunction based relief. The vacated on the of Renee. Conse- finding part of “unclean hands” on without we affirm the Order December quently, of the “clean hands” issue. Wecht PG reaching merits (1986) Co., 493, 495, 510 A.2d Pub. Pa.Super. (“We when its is affirm trial court a decision theory regard any legal on without ground correct relied.”) which trial court ground upon Order affirmed.
Superior Pennsylvania. Court of
Argued Sept. 1994.
Filed Jan. *3 for Unger, Philadelphia, appellant.
Sue A. Sherman, Schaeffer, Doylestown, Rosemary John N. participating party. Hoffman, PA B. for amicus curiae Med. Harrisburg,
Robert Soc. Meisel, Curiae, University
Alan for Amicus Pittsburgh, Med. Ctr. Pittsburgh CAVANAUGH, ROWLEY, Judge,
Before President CIRILLO, OLSZEWSKI, BECK, WIEAND, McEWEN, POPOVICH, KELLY and JJ.
BECK, Judge. appeal requires sustaining
This that we decide whether life in the of a tube be re- gastrostomy treatment form should in twenty years moved from a who for almost has been patient cognitive powers state with no and no persistent vegetative with the trial court that the life recovery. agree chance of We and, therefore, be terminated sustaining treatment should court. affirm trial family of a member that consent close
We conclude
is sufficient
physicians
of two
along
approval
qualified
with
in a long-term
to a
sustaining
person
terminate life
treatment
involvement. We
court
state without
persistent vegetative
is limited to the
today
decision
further
our
emphasize
vegeta
is in persistent
where
category
patient
cases
recovery
chance of
cognitive power
state
no
no
tive
with
a view as to
expressed
such
has not
patient
previously
where
terminated.1
sustaining
should be
whether life
all
rise
case as well as
such
to this
giving
facts
are tragic.
treatment cases
of life
termination
issue,
Fiori,
is 43
whose future is
Joseph
Daniel
incidents, one in
old. As a result
two successive
years
Mr.
old
one
twenty years
when Mr. Fiori was
Fiori
been
was
Since
Mr.
has
Fiori
rendered comatose.
vegetative
known as a
neurologic
persistent
condition
Director,
Health, 497
Dept.
Missouri
state.
Cruzan
(1990),
In Fiori’s is alive and although body other Mr. has so stay years, cognitive for his function been well alive required category Despite court in this the fact that involvement not case, practical uncertainty may arise as a matter we realize event, guidance. we parties In such an endorse will seek court Opinion pro- Judge Concurring which forth in Wieand’s standard set compassionate for the trial court vides a common sense standard follow. that he not know he is alive. He thoroughly destroyed does Thus, pleasure. although no and he feels no he pain feels tube, he pain presence gastrostomy realizes no from if There is equally pain would realize no it were withdrawn. in Mr. Fiori’s medical condi- dispute no this case that this is tion, condition will never dispute and there is also no that his improve. Mayo Nursing
Mr. Fiori has for been a at the years in and has received Philadelphia and Convalescent Center muscu- capacity voluntary excellent care. he has no Since movement, he is his medi- including swallowing, provided lar cations, through surgically fluids and nutrition a tube inserted mother, tube. His Rose- gastrostomy his stomach called Sherman, was of Mr. appointed guardian marie who person by Fiori’s court order entered has been him visits him several throughout devoted to his ordeal. She every day, nursing personally times his care and supervises him to insure that his provides supplies necessary -with the very care is the best. that her son’s February Mrs. Sherman determined
treatment, tube, should be terminated. gastrostomy i.e. the without nursing comply request The home refused to with her in the Court of Common petition a court order and she filed directing an order County requesting Pleas for Bucks Attorney home to terminate the treatment. nursing and, to its appeared proceeding pursuant General expert appointed medical was request, independent from Mrs. testimony examine Mr. Fiori. The trial court took neurologist from a who examined Mr. Fiori. Sherman and had. report independent The court also considered the prior The evidence revealed that to Mr. expert. injuries specifically Fiori’s he had never commented on how he if in persistent vegetative would wish to be treated he were However, state or rendered his moth- incompetent. otherwise understanding er testified that based on her of her son and his no competent attitude toward life while he was her son would alive in his condition. longer kept present wish to be *5 it insufficient evidence that had The trial court found his treat- concerning Mr. Fiori’s own decision determine what Thus, the applied if court competent. were ment would be he standard,” it which described “objective an what it termed follows: is to be self-determination] right [to
If the of the exercise an by has been made expression no maintained where treatment, place it must take as to incompetent patient implement analysis which seeks to the context of within by interests reference is in best person’s what that assessing criteria.... objective societally ‘[I]n shared would be or course of treatment procedure whether a interests, taken into decision maker must best patient’s suffering, preserva- as the relief account such factors quality as well as functioning, tion restoration extent of life sustained.’ Memorial Op. (quoting Foody at 8 Manchester
Trial Court (Ct.1984). 713, 721 482 A.2d Conn.Sup. Hospital, satisfied, the trial court entered Finding this standard gastrosto- authorizing the discontinuance Final Decree sustaining procedures. my tube and all other life following and raises the Attorney appealed, The General issues for our review:2 failing appoint court erred orphans’
1. Whether the patient’s comatose interest ad litem to guardian represent should be support whether life in a to determine proceeding withdrawn? by authorizing a court erred orphans’
2. Whether the death without result process which would would wish convincing evidence he clear and requiring treatment withdrawn? have life Society, Pennsylvania Medical curiae briefs were filed The Amicus Conference, University Pittsburgh The Pennsylvania Catholic The Ethics, Pennsylvania University Medical Center for Medical Center, Pennsylvania Hospital and the Ethics and Association Nursing Group. In cases Advocacy Home Action Task Force of the this, implicate concern and which issues of broad social such as raise considerations, purely legal the submissions of such more far than helpful. particularly are amici We need not separately address the Attorney General’s first *6 issue. Since ultimately we hold that no legal proceedings are in necessary great majority involving cases the termi- nation of life sustaining treatment in persons Mr. Fiori’s condition, and that no such was proceeding actually necessary case, in this we obviously see no need for the appointment of a guardian ad litem.
The Attorney General’s basic legal position on the issue presented is that sustaining treatment should not be in terminated the case of any Mr. Fiori or other person without clear convincing and evidence that termination of treatment would be the choice that if person would make he or Moreover,, she were competent. the Attorney General would have require this court that the only evidence of the patient’s wishes that will meet this evidentiary prior standard is a express statement the patient. Finally, the Attorney Gen- eral would require that a court proceeding be conducted in every such case so that the determination of whether above-stated test had been met could be made the court. adopt
We cannot
the Attorney General’s suggested ap-
proach
crucially
to the
important
presented
issue
by this case.
outset,
At the
we note that the Attorney General frames the
issue far
broadly.
too
The discussion of this case should be
facts, i.e.,
limited to its
what standard should be
in
applied
case of a
competent
once
adult
in
who is now a persistent
who,
vegetative state and
when competent,
directly
had not
expressed a view on whether he would want life sustaining
circumstances,
treatment
to be terminated under these
but
who has a close relative who believes he would want his
treatment
development
terminated. The
of the law as to
other
types
cases should wait until another day. These
cases arise from greatly differing factual scenarios. Termi-
nation of issues
in
arise
cases involving never
adults,
competent
competent
once
and
incompetent
now
adults,
ill
terminally
never competent children who have been
birth,
severely impaired since
who,
and adults like Mr. Fiori
although
who,
once competent,
longer
no
are while not
ill,
terminally
are in a persistent vegetative state. As to life
have
measures, in
will
patient
some instances the
will
view;
patient
or her
others
articulated his
clearly
articulated;
view,
clearly
has
been
but it
not
expressed
have
others,
view.
and,
any
have
patient
expressed
will not
to deal
attempt
It is
and inadvisable
inappropriate
both
specific
outside
possible
with
of these
scenarios
each
pres-
such case might
facts
considerations each
matrix of
Peter,
See,
108 N.J.
529 A.2d
e.g.,
ent.
Matter of
(1987)
elderly
(setting
terminating
treatment of
standards
state and
persistent vegetative
home
in a
nursing
patients
other
involving
types
from those
distinguishing such cases
situations);
Conroy, 98
Matter
patients
distinct
(1985)
appli-
(distinguishing
standards
N.J.
A.2d
younger
ill
from that of
terminally
elderly
cable to
*7
vegetative
patient).
state
persistent
to the
only
to decide relates
upon
The issue we are called
competent,
of
to a once
sustaining
termination
life
treatment
who
incompetent,
persistent vegetative
now
adult in a
state
want
view on whether he would
clearly expressed
has not
continue,
close relative
sustaining
measures to
but whose
his
terminated.
believes that he would now want
an examination
begin
analysis
our
the issue with
We
protect
right
upon
we are called
underlying
—the
in
regard
acceptance
right
to self-determination
many
rejection
Although
of life
medical treatment.
right
for
existence of a
to self-determi
grounds
different
asserted,
no
such
nation
there can be
doubt that
(Minn.
Torres, 357
See In re
N.W.2d 332
right does exist.
1984)
grounds
law
(citing
constitutional and common
both
self-determination);
right
Foody v. Manchester
existence of
(1984)
127,
40
The to control and refuse medical is treatment also Commonwealth, founded on the common law of this which has that other than in an long provided emergency, medical treat- may given ment not be without the informed consent of the right privacy upon 3. The is founded both state and federal constitu- guarantees. purposes Pennsylvania tional For of the Constitution the I, right grounded privacy is in Article sections 1 & 8. We find that right concerning the to self-determination as to decisions medical aspect privacy right guaran- treatment emanates from that which Pennsylvania right important personal tees citizens the to make deci- sions.
619
Raeuchle,
394, 404, 604 A.2d
v.
529 Pa.
patient. See Moure
Yohe,
(1992)
alia,
412 Pa.
v.
(citing,
inter
Smith
Pa.
223 A.2d
(1963); Gray Grunnagle, 423
Brief of The Medical at 16. See Grant, 545, 747 P.2d e.g., Guardianship In re 109 Wash.2d (1987) Affairs, (citing AMA Council on Ethical and Judicial Medical Treat- “Withholding Withdrawing Life-Prolonging (no ment,” 15,1986) Mar. medical ethical barrier to discontinu- coma- ing indisputably irreversibly to concur). patient responsible patient tose where all for care of Thus, with to our only any pertinence state interest interest in the of life. inquiry general preservation is interest, Although validity there is no doubt as to the this is, is the force or of this interest question import the real what in comparison right to the self-determination? held, so, generally appropriately
It has been that the in preservation outweigh state’s interest of life does not competent right individual’s to self-determination. As the Jersey Supreme New Court has stated: not involve the of the actual or protection cases do decisionmaker, than potential life of someone other in preserving state’s indirect and abstract interest the life of to the competent patient generally gives way stronger personal directing much interest the course of his own life. balance, right ordinarily
On
to self-determination
interests, and
outweighs any countervailing
competent
state
permitted
are
to refuse medical treat-
persons generally
ment,
of death.
even at the risk
A.2d at
In re
Conroy, 98 N.J. at
Cf.
(blood
Dorone,
(1987)
Estate
517 Pa.
More difficult arise the context of to make incompetent particular who are treatment decisions
621 for Such unable to exercise direct- patients themselves. are to or In right accept their own refuse medical treatment. ly behalf, substitute right to exercise that on their attempting simultaneously decisionmakers must seek to both respect aspects patient’s right to self-determination —the cases, live, to die of natural right right, and the some causes without medical intervention. 356, A.2d
Id. at
486
permit
court
asked to
every case where a
has been
patient
life
from a
in a
sustaining
withdrawal of
treatment
state,
if it
the court has held that
can be
persistent vegetative
patient’s
it
have been the
definitely determined that
would
treatment,
patient’s right
not
receive
then the
desire
such
interest and the
outweighs any
to self-determination
state
Mack,
See, e.g.,
be withdrawn.
Mack v.
329
treatment
(1993);
188,
744
v.
618 A.2d
Rasmussen
Mitchell
Md.
207,
(1987);
Ariz.
Fleming, 154
However, as to to do in a question the difficult arises what others, this, many like like where the case so while specific competent simply expressed had never clear kept to whether he or would wish to be alive preference as she rare totally non-sapient excep- for decades state. With tions, confronted with such a situation have stated that courts they permit under certain circumstances would the decision as sustaining to whether life treatment should be terminated judgment” by made through be exercise “substituted Jobes, 108 patient’s family guardian.4 Matter N.J. Missouri, exceptions 4. Two such are the courts of New York and both of appear permit which not to the termination of convincing except can be evidence that where it shown clear and 622 (1987); Ill.2d Longeway, Estate A.2d 434 Rosebush, (1989); In re N.E.2d 292
139 Ill.Dec.
(1992); Conservatorship
491 N.W.2d
Mich.App.
(Minn.1984).
Torres,
Court
Supreme
The
where
patient’s personal
considers the
decisionmaker
surrogate
surrogate
considers
guidance.
system
value
*11
medical
about and reactions to
statements
patient’s prior
that
the
issues,
patient’s personality
facets of the
all the
with,
course,
refer-
particular
is familiar
surrogate
with —
theological, and
philosophical,
relevant
ence to his or her
patient
if he or she were
been the desire of the
such would have
Harmon,
(Mo.1988),
competent.
In for a court to intervene found that there no need have disagreement there is be- decisionmaking process unless this usually are identified as parties, tween the interested who treating evaluating involved professionals See, Jobes, e.g., family guardian. patient’s Rosebush, supra; supra. require judi contrast, General would Attorney a standard of every impose and would
cial intervention case convincing of a prior clear and evidence requiring decision patient that he or she would want statement express presented. circumstances terminated under provide General maximum Attorney purports While im protection to the self-determination standard, in such a standard will posing adoption this fact It must be recalled that under objective. not achieve that law, convincing has been Pennsylvania clear and evidence virtually that is See Leonard indisputable. defined evidence Evidence, Poulin, § Pennsylvania 303.2 Packel Anne *12 (1987). If, to the example, apply for we were clear one, like the convincing test a case instant it would evidence life court the termination of impossible approve for a Fiori, him to Mr. even if those closest to sustaining treatment they is he would want. Unless were convinced that what statement, one, in testify or to an oral produce could a written said, want,” I is could nothing which Mr. Fiori had “This what His not be right protect be done. to self-determination would ed, might negated. but rather well be
Furthermore, life the time of the decision to withdraw for fraught anxiety is one with sustaining pain the with a patient. compound suffering those who love the To unnecessary. special What court is insensitive and proceeding painful have in these knowledge insight does the court patient sufficiently protected Is not the intimate situations? by two doctors? Unlike surrogate’s approved decision by through involvement Attorney General we find state of the individual’s overly courts intrusive and violative by rights adequately represented are privacy. case, clearly quali- in mother. is surrogate, this She express and can what judgment fied to exercise substituted mother, her son given Mr. Fiori would want. His who has decades, all those almost two who has taken devoted care for done, who has consulted her to consider what should be years heart, her is here to tell us that religious advisors and own All time, say “enough enough”.5 son would point this her Fiori, Mr. the inde- including the doctors who have evaluated court, agree the trial pendent physicians appointed disputes state. No one persistent vegetative his irreversible answered. questions these facts. All the have been pertinent terminated, arid not because a court The treatment should be so, express Mr. mother is able to says but because Fiori’s and two attest to physicians what her son would have wanted be in a fact that for remainder of his life he would vegetative state. persistent conclusion, on the heavily this we have relied reaching of our many of the courts of
guidance provided by opinions conclusion. In jurisdictions who have reached the same sister carefully opinion on the crafted we have relied particular, Jobes, Jersey supra. of New Matter Supreme Court Garibaldi, that in majority, for the Jobes held writing Justice in a competent persistent of a once adult the case specific view as to expressed state who had never vegetative treatment, the treatment could nevertheless be in accordance under certain circumstances and terminated certain procedures. with
First, has an Justice Garibaldi found that while state life, preservation interest in the undeniable Attorney suggests fact is an 5. The General Mrs. Sherman may be motivated a desire inappropriate decisionmaker because she hand, We, gain. personal on the other have no such financial *13 court, Sherman because the trial who saw heard Mrs. concern acting good testify, adjudged entirely faith. her to be sincere individual’s to weaken and the ... those interests bodily “as invasion stronger degree the privacy becomes increases and issue] medical treatment at [effected sapient recovery cognitive, state] prognosis [for dims.” in which to conceive a case the State
... difficult [It is] strong enough have an interest subordinate could in a persistent not to sustained right to choose patient’s vegetative state.” (citations Jobes, 413-14, A.2d at 444 108 N.J. at
Matter of
omitted)
Peter,
365, 380,
A.2d
108 N.J.
(quoting Matter of
647,
(1987);
Quinlan,
355 A.2d
re
70 N.J.
N.J.,
Garger
sub
429 U.S.
97 S.Ct.
cert. denied
nom.
(1976)).
319,
The Jobes court concluded of the fully predominating right incompetent effectuate the to determine his own course of treatment was patient on patient’s of substituted judgment exercise permit course, would, solely judgment The substituted aim behalf. determining have chosen for at what the would himself concerning on medical issues prior expressions based view philoso- if and on the patient, any, personality, entire 413-15, system patient. and value Id. at 529 A.2d phy determination, with importance Of is the Jobes court’s equal members, family that entirely agree, patient’s which we spouse, not to the adult child or usually parent, but limited parties are the to render substituted sibling, appropriate 413-20, 444-47. so Id. at 529 A.2d at The court judgment. following cogent for the reasons: found has an intimate un- invariably patient’s family Almost general attitudes and derstanding patient’s is in to know the position view and therefore the best world control the motives considerations would medical decisions.
626 qualified are best to make substituted
Family members not because of incompetent patients only for judgments life, but also grasp patient’s approach their peculiar him or her. special of their bonds with because in deci- family medical treatment importance “The sions is axiomatic. realm of traditionally respected private has
The law
cannot enter....
believe
life which the state
We
family
family
in the
respect
tradition of
for and confidence
that this
to the treatment of the sick.”
ground
approach
should
our
Farrell,
415-16,
In
(quoting,
part,
Finally,
require
like the Jobes
we too would
deci-
surrogate
not be terminated unless the
treatment
statements of two doctors
sionmaker has obtained written
that the
patient’s
certifying
to evaluate the
condition
qualified
state without reasonable
persistent vegetative
is
patient
420-23,
If
Of there will be instances sufficiently judgment close to the to render a member behalf, in the patient’s on his or her or the doctors involved actually that the are not at- perceive family care members choice, own or there is a tempting to effectuate no been among family designat- members and one has dispute In in an advance directive. such ed as the decisionmaker (cid:127) situations, should not be terminated without aid the court. guardian of a and the appointment followed, If the are and none foregoing procedures exist, extraordinary ap above-listed circumstances not of a to termination of treatment proval prior court we has this, merely suspect confirm what required. we families doctors practice by many followed fact been families, in have made decisions been years. These advisors, in privacy consultation with doctors other In re interference. See Estate governmental without Longeway, Ill.Dec. Ill.Dec. N.E.2d (1989). *15 numerous that have found that agree
We with the courts no role in a case there judiciary simply play the has to where and what loving family, willing able to assess the is treatment, necessary or all have as to his her would decided hand, no rightfully medical confirmations are and one disputes family’s the interested the treatment See, Jobes, 415-20, 529 445- e.g., 108 N.J. at A.2d at decision. Rosebush, 47; re 633 In N.W.2d Mich.App. Grant, (1992); re Guardianship 109 Wash.2d (1987). Those with view P.2d 456-57 this disagree who case the every who favor court intervention in often cite and for the this patient. Underlying need court to the protect is the that can the philosophy only provide rationale courts safeguards protection assure of life. This is a necessary to It and view. the essential and unhealthy narrow violates . family. the is another respect yet expansion traditional for It in our are the society repository of the idea courts life protect and the institution available to human only wisdom unarticulated, fear that dignity. underlying and There is guardian the court ad by perhaps without intervention other take to end parent might litem that relative action in rare personal gain. this cases have While fear foundation, its two some it loses force when consent of requirement is a before life physicians necessary treatment terminated.
Moreover, not invasion such fears do of the state justify of the where such private family important into realm be The law of personal decisions should made. this Common- and has sanctity family long respected has wealth to it the to privacy preserve to its sought protect for the Certainly respect this far as possible. itself as govern to decision as intensely private extend to family should reduced tragically has been member who family whether a in that to live state.6 wish to continue state would vegetative point one further need address concluding, Prior to we curiae. amicus and certain Attorney General raised new Ad is made that Commonwealth’s suggestion Act, seq. § et 20 Pa.C.S. Health Care vance Directive for (1992), guardianship amendments to our certain recent then expressly implicitly, if not support, lend statute We, other on the Attorney General. taken position or the statute hand, guardianship in either the nothing find “Act”) (the that rea Act for Health Care Advance Directive in this case or dictating as a result could be construed sonably our decision- guide standard general providing even only with the establishment The Act is concerned making. may execute competent persons to which pursuant standards they wish stating directives what advance binding valid and in the event that their medical regarding done *16 in a terminal and are incompetent in the future become they 20 Pa.C.S. unconscious. are permanently condition or §§ 5405. today’s are points many of families quite correctly out that The dissent
6. require intervention would court of this the dissent unstable. Because majority in total majority The every would not. case. The question raised about that where there is agreement with the dissent judgment making or the substituted appropriateness of the relative relative, adjudicated by the those cases must motives of the questions such hospitals ethics committees in which Most have court. position hospital itself would be in and the addressed would.be course, any patient’s relatives and of the court intervention. Of seek be able decision-making process would also any in the doctor involved necessary. aid of the court where to seek the require in the holding majority does not court intervention which are require it in those cases questions but does absence of such sanctity strongly and the. majority upholds doubt. The not free from safeguard family the law should cherish privacy of the and believes family with life decency of a faced family integrity. The wisdom and to be tested in court. decisions do not need and death in the Act that fact, indicia we find clear for the termi standards not to establish intended legislature case, instant like the any sustaining life nation of by the had not been executed one, directive an advance where no presumption that it “shall create provides The Act patient. who has not executed any person the intent concerning sustain withholding of life consent to the use or declaration to or a state of a terminal condition in the event ing procedures 5402(b). The § 20 Pa.C.S. unconsciousness.” permanent stating that scope provision a limitation of Act also contains or any existing rights supersede “shall not impair the Act § in this Id. at chapter.” not addressed responsibilities rights not address the specifically Act does Since the directives, advance who never executed incompetent persons now are rights persons’ under section 5412 those presumably It is of the Act. passage they what were before exactly time, state, what those for the first in this case to our task Elston, 858 S.W.2d Accord DeGrella v. rights are.7 will” statute construing Kentucky “living (similarly (Ky.1993) Directive Pennsylvania Advance like that using language that does not dictate non-exclusive enactment Act to be a treatment cases where in termination of result will). living not executed a had pertinent is the be viewed as only aspect of the Act that 7. The general findings forth its legislature sets initial section where the statute, underlying as follows: the new qualified competent adults have a Assembly finds that all The General relating care. This to their own medical right to control decisions society, maintenance subject such as the right is to certain interests preservation profession and the standards in the medical of ethical technological proce- protection life. Modern of human beyond natural possible prolongation of human life dures make suffering procedures to an individual application of some limits. The dying may loss of process of cause and uncomfortable a difficult precarious and only continuation of a patient dignity and secure prolongation of life. burdensome 5402(a). § 20 Pa.C.S. already they we findings pertinent confirm what are insofar These of medical concerning right to self-determination have concluded *17 adults, interests in possessed by competent the state all treatment life, modern and the effect of preservation and medical ethics They do not prolongation of human life. developments on the decisionmaking in this case. assist our otherwise statute, as guardianship also made to the Reference is seq. § 5501 et Attorney- The in 1992. 20 Pa.C.S. amended relating of the statute portions those refers to General guardians incapacity appointment and determinations case his to this approach find support appears and convincing and that “clear requires statute that portion adjudi- person before a is presented be incapacity evidence” guardian appointed. and a incapacitated cated statute, we the guardianship reviewed Having thoroughly also that it this case but does not control only find that it not fact The presented. on the issue real guidance no provides convincing clear and requires statute guardianship that to the standard has no relevance incapacity evidence sustaining life to terminate deciding- employed to be proof Moreover, nothing guardianship in the there is treatment. necessary to termi- judicial approval that suggest statute fact, that those subsections sustaining life treatment. nate only specifically be may and duties powers list be or that never a court order guardian by to a granted the termination of no reference to make guardian granted (f). 5521(d) § & 20 Pa.C.S. treatment. sustaining life in this presented the issue not address simply does statute case. that all correctly decided
The trial court to Mr. Fiori should rendered being presently is affirmed. of the trial court The order terminated. CIRILLO, WIEAND, ROWLEY, and Judge, President KELLY, JJ., OLSZEWSKI, join Opinion. this J., in which WIEAND, Concurring Opinion files ROWLEY, joins. Judge, President OLSZEWSKI, JJ., Concurring each file
McEWEN Statements.
POPOVICH, J., Concurring Dissenting Opinion. files a CAVANAUGH, J., Dissenting Opinion. files a *18 WIEAND, Judge, concurring. of a who has been in a
May family patient, persistent vegetative years recovery state for several with no chance for previously regarding and who has not recited his wishes use of life at a time when he procedures and competent, permitted hydra- was to withdraw nutrition I supplied by agree majority tion artificial means? with the that, join a decision possible, and its determination when such by family can and should be made a close member and two qualified physicians necessity obtaining without the for a court instances, however, In many order. the circumstances will I write require that a court intervene. This was such case. therefore, which separately, to elucidate those considerations of a trial court and the review to be should affect the decision court. appellate conducted Joseph Mayo Nursing
Daniel Fiori resides at and in Philadelphia. incompetent Convalescent Center He became age twenty-one, in 1971 at the when he suffered severe damage motorcycle accident. He was confined to a brain only express wheel chair and could himself limited verbal time, and At this his bodily gestures. sounds and facial abilities, limited, were functional. cognitive though In him in a injury, 1976 Fiori suffered a second which left persistent vegetative state. This condition has continued until present. Although primitive his heart still beats and some stimuli, respond applied cognitive reflexes still all brain thought processes inoperable.1 functions and are He feels no pain pleasure, or and he is unable to interact his environ- think; ment or to communicate with others. He cannot he patient persistent vegetative 1. A in a state is not “brain dead.” Al- though inoperable, most brain functions are vital functions such as breathing persist. heart beat See: Lovato v. District Court in and Dist., 419, 6, 1072, the Tenth Judicial 198 Colo. 426 n. 601 P.2d dead, hand, (1979). A 1076 n. 6 who is brain on the other is stimuli, non-responsive independently, to all unable to breathe 426, displays absolutely no reflexive movements. Id. at 601 P.2d at L.W., 53, Guardianship 1077. See also: Matter 167 Wis.2d 62-64 (1992), citing n. 482 N.W.2d 63 n. 1 the Guidelines for State Making Authorizing Withholding Life-Sustaining Court Decision Treatment, Appendix Medical National Center for State Courts B. 438 PA.Super. —22 he cannot eat. He receives he cannot move and speak;
cannot nutrition, gastrostomy hydration through and medication all he will hope There no tube into his stomach. inserted improve. or that his condition will recover Sherman, mother, Fiori’s after consult- Rosemarie that further family, with Fiori’s concluded ing physicians and that all artificial life sustain- treatment was not beneficial However, Nursing Mayo terminated.2 ing measures should be *19 without a court order. carry prior refused to out her wishes Therefore, judicial a autho- petition requesting Sherman filed procedures. hearing A sustaining life rization discontinue and, no of Fiori’s own although was held direct evidence objective court presented, applied was trial desires The Office of the granted petition. standard Sherman’s Pennsyl- the Commonwealth of Attorney General on behalf of appeal. vania filed instant many recognizes, As there will be occasions majority members, pa- with the family along a close patient’s when without court capable deciding, are most physician, tient’s intervention, dis- sustaining life treatment should be whether Al- in a vegetative for a state. persistent continued cases, judicial such though require I would not involvement matter, that, will frequent I there be recognize practical will called decide such upon occasions when the courts be Thus, action, in the family instant Sherman intimate matters. courts, the convalescent initiated contact with because her had her accept which cared for son refused facility case, in my judg- requests for her treatment. Such a son’s ment, brought a court. Other cases properly can be before required requested will or come judicial which intervention to mind. readily medi- right
Debate over
to refuse life
by
cal treatment has been fueled
advances medical technol-
life
practitioners
prolong
have enabled medical
ogy which
where,
shortly
have
past,
in the
death would
been
forthcom-
long
A
now be
after
ing.
semblance of
sustained
by
appointed legal guardian
had been
of her son in 1980
Sherman
County Orphans' Court.
order of the Bucks
terminally ill
“Hopelessly
has ceased.
existence
conscious
end,
a swift
now
have met with
past
in the
would
who
patients
them, near the threshold
can sustain
that medical science
find
Longeway,
In re Estate
death,
yet
not
across it.”
but
292, 294
N.E.2d
33, 39,
139 Ill.Dec.
133 Ill.2d
(1989).
said in Rasmussen
of Arizona
Supreme
As the
Court
(1987):
207,
253 Ga.
321 S.E.2d
of
(common
statutory provisions);
Longeway, supra
law and
Lawranee,
(Ind.1991) (federal
Matter of
635
life
the use of
regarding
wishes
patient’s
Where
discerned,
should be honored.
those wishes
can be
treatment
have
however,
prepared
individual will not
an
Frequently,
that he
the event
regarding
instructions
explicit
it is more
Although
Id.
incompetent. See:
or she becomes
sus-
under which life
the circumstances
difficult to determine
has become
where a
measures should cease
taining
desires, it
his or her
having expressed
without
incompetent
an intent
express
not be assumed that a failure
should
extraordinary
all
accept any
manifests a decision
74-76,
Foody Hosp., supra, v. Manchester Memorial 139, A.2d at 721. 482
A to decide whether medical treatment court which asked the or family’s should consider whether should be discontinued “best interests” of recommendation would be the guardian’s patient. the standard, surrogate the decision-
Under the best interests would in the what medical treatment be maker assesses by objective as determined such patient’s best interest preservation or restoration suffering, as relief from criteria life. of extent of sustained functioning, quality ‘An accurate assessment will Report Commission at 135. present the of de- consideration of satisfaction encompass satisfactions, sires, for and the opportunities the future capacity or the for self possibility developing regaining of determination.’ 222, 154 Ariz. at Fleming, supra, Mitchell v. by
Rasmussen
omitted).
(footnote
objec-
applying
741
at 689
When
P.2d
any
it is
for the court to consider
appropriate
tive standard
the
while
expressions
competent,
relevant
made
available,
presently
which are
the benefits
options
thereof,
improvement,
the likelihood of
non-benefits
associated with either
suffering
amount of
or discomfort
treatment,
course,
degree
dependence upon
presence
progressive
intrusiveness of
procedure,
any,
hospital
if
physical
opinion,
deterioration and
Foody v. Manchester Memorial
bio-ethics committee. See:
718-719;
at
A.2d at
Hosp.,
Conn.Sup.
482
supra,
Fleming,
at
supra,
Mitchell v.
Ariz.
Rasmussen
689;
supra,
In
62 Ohio Misc.2d at
Myers,
P.2d at
re
L.W.,
670;
Guardianship
supra,
610 N.E.2d at
Matter of
84-86,
at
The basis for medical treatment of is primary (specifically, the prospect that each individual’s interests Thus, treatment well-being) promoted. interest in will be life, ordinarily patient through preserving aims to benefit a suffering, against disability, and relieving pain protecting If a returning maximally functioning. progno- effective correct, however, is con- permanent sis of unconsciousness benefits. tinued treatment cannot confer such Toms, 357 N.W.2d Conservatorship Matter of (Minn.1984). from the termination Although death result treatment, if the relatively quick; it will be certain and years, to for several death will still languish is allowed time. it is be imminent but will occur at an unknown Where no produce treatment will extraordinary certain that further may be vegetative patient, for a beneficial result discontinued. in between life
The decision such cases -willinvolve a choice Therefore, a court must exercise caution and and death. trial which has profound responsibility remain conscious of the court, me, in An it to must appellate been vested it. seems has profound responsibility also be which cognizant its been in the trial court and should not substitute vested It that a decision of judgment for that of a trial court. follows court should not disturbed absent an abuse a trial be discretion or an error of law. properly- Mrs. Sherman’s trial court granting petition, incap- Fiori is completely a “best interests” standard.
applied recognizing his environment. He participating able primitive ability the most to cognitive only has no abilities He has his condition respond persisted present stimuli. medical evi- years. for seventeen The improvement -without improve. that will his condition never dence uncontroverted employed be Although technology may perpetuate he continue to years, for several more will his existence already have family physicians deteriorate. As Fiori’s realized, sustaining use of treatment will not the continued life attempts has come to suspend beneficial to him. time be unnaturally allow to follow life and to his life its prolong his to rest. The time has come allow Fiori natural course. appro- I court Because hold the trial considered would determining petition Mrs. Sherman’s criteria whether priate I which granted, would affirm court’s order should hy- nutrition and withdrawal permitted the *24 by a already the represented dration. Because guardian ad litem have added and because could guardian court’s and sensitive consideration nothing the trial careful conten- reject Attorney I would the General’s petition, of the appointment guardian that we reverse for the tion should . ad litem.
ROWLEY, Judge, joins. President McEWEN, Judge, concurring. life!”, your highwayman demanded the money
“Your life.”, protect money, your “I but not your the horseman. can that the How anomalous the lawless decreed chancellor. both particular property. and the lawful share focus— divergent expressed views compelling presentation The fulfills colleagues so our intermedi- my admirably esteemed precisely and so defines the issues as to role appellate ate Thus, while, Supreme review our Court. readily enable case, in the to permit the of this I concur decision under facts Joseph Daniel life-sustaining the termination of I am expression in since joinder any Fiori, I refrain from society does uncertainty: what values aby nagging beset require careful legal system permits when it its reflect affecting property the judicial scrutiny of decisions scrutiny of a deci- judicial similar incompetent, precludes but incompetent? the life of the sion to terminate OLSZEWSKI, Judge, concurring. re- in all majority’s thoughtful opinion
I the agree with dissenting concurring of the aspect I feel one spects. that response. brief opinion merits a privacy and self- uses the individual’s majority
The con- analysis, in its starting point determination as us, legal in narrow fact situation before cludes that termi- in difficult decision of when to system will not aid arrives at a different conclusion support. life dissent nate duty analysis with the Commonwealth’s by beginning its protect obligation its This parens patriae of citizens. that leads dissent to conclude citizens welfare disabled life in to terminate every be involved decision courts must support. parens patriae
I Commonwealth’s would observe that the than courts through bodies other power can be exercised case, the Commonwealth’s legal system. present citizens and protecting preserving its disabled interests two majority’s amply discharged by requirement are To be every termination decision. li- participate doctors Commonwealth, doctors practice medicine this censed to train- training in medical ethics. This undergo extensive must anything than we members ing specialized is far more *25 only bar in our formal education. When bench and receive surrogate are the decision parties to termination decision dis- parens patriae maker and the Commonwealth as duly perfectly capable licensed doctors are subject, abled two majority Commonwealth’s The interests. representing situation, system in narrow the court observes that this rightly nothing except delay, expense to contribute likely intrusion.
Judge Popovich begins by noting his dissent that courts are a reservoir of wisdom on life and death decisions. The same is true of the medical which in the profession, specializes subject instant matter. We members of the bench and bar ought only in mind that we are not the licensed keep in in professionals capable this Commonwealth trained difficult ethical decisions. making POPOVICH, Judge, concurring dissenting. I reached agree ultimately by Majority, with the result I disagree pursued but with the course to achieve that end. Specifically, Majority offers that the courts should refrain from a forum for the resolution of “life and death” being decisions, it that a “close and two believing family member in the best qualified physicians” position are to make such of a patient assessment the case comatose who never articulated his wishes should he find himself an irreversible vegetative condition. state, citizenry, as the of its is not to be parens patriae intrusive, participant
dismissed as an uninvited when the life instances, In just of one of its own is at risk. such the courts (as an of state have been a reservoir of government) extension when a life in being hangs wisdom and counseled reflection inmates, balance, row” of men- e.g., ligation “death tubal for a who tally parents retarded and blood transfusion child oppose procedure religious such a reasons. No less should sagacity such be dismissed-as an unwarranted invasion into a facing “life and death” situation such as the one the Fiori family. it that a
The amount of time and effort would take to insure life-support, espoused comatose on who never his or condition, her in advance of such a should have such position extraordinary by securing medical services terminated the- of a court is no more burdensome than imprimatur obtaining among family physicians consensus and two regarding vegetative patient. Expe- irreversible state of the comatose hearings court-supervised dited are available for such deci- sion-making concerning sanctity of human life and would *26 Rather, such a privacy. not act into one’s be an invasive are with the parties truly acting would assure that all process by any mind and not motivated best interests of the scrutiny veiled light by hidden from the ulterior motive patient’s well-being. concerns for the result, I of involving am in favor Majority, As a unlike the never a who has patient, the courts those cases where treat- life-sustaining his on expressed or her concerns ment, no in a state and reasonable vegetative persistent is foreseen medical awakening from coma likelihood following In a I offer the position, such personnel. support of observations, precipitating facts preceded an account this ease. Joseph Navy, in the Daniel
In while enlisted June from he was thrown a injuries Fiori head when sustained was on base. He comatose motorcycle operated military he consciousness. But was regained until 1972 after which he severely confined to wheelchair had partially paralyzed, only he able to articulate the cognitive limited abilities: was “eye” responses. “itch” in all words admitted to a leg In fractured his was Daniel During stay, his he suffered hospital. veterans administration left comatose so that injury totally a second head which him (and are) admin- medications, were still all fluids and nutrition into surgically inserted his through gastrostomy istered tube stomach. Sherman) (Rosemarie appoint- was Daniel’s mother “to for him decisions guardian person
ed of his make those There- prosecution contemplated lawsuit.” including after, govern- was reached wherein the federal a settlement alia, inter “full- provided, ment a trust fund which established up whereby nursing time ... care.” The trust was set lived, to mother Daniel the more would be available his longer $400,000.00 annuity up upon of an his recipient demise.1 provided tied to the trust document for increments in benefits life; longevity of Daniel’s to-wit: and Convalescent
Presently, Mayo Nursing Daniel lives which, provided has Philadelphia, parties agree, all Center Likewise, has been extraordi- “excellent” care. Ms. Sherman *27 throughout period to Daniel’s needs this narily attentive —1971 present. to the him injury totally incapaci-
After Daniel’s second head left world, oblivious to the Ms. reached a tated and Sherman decision to cease artificial after consultation with life-support all of whom concurred in the family priest, her members and However, life-support. Mayo nursing decision to remove refused to accede to Ms. Convalescent Center Sherman’s sanctioning a court order the removal of the wishes absent gastrostomy Accordingly, tube. Ms. Sherman filed “Petition Life-Sustaining For Authorization To Discontinue Proce- dures,” feeding of the abdominal tube which included cessation life-sustaining proce- of all medications and and discontinuance dures for Daniel.
Prior to for review of Ms. Sherman’s scheduling hearing of the of Penn- petition, Attorney General Commonwealth after served with the secured an order sylvania, being petition, (Dr. David appointing independent expert of court Cook, neurology, University clinical of Penn- professor G. Medicine) to evaluate Daniel and submit a sylvania School of report supple- to the court. This assessment was made and Dr. performed by mented examine William neurological of 1992. Wiggins April Stover $25,000.00 annuity anniversary of the on the second $50,000.00 anniversary annuity of the on the fifth $100,000:00 annuity anniversary of the on the tenth $150,000.00 anniversary annuity on the fifteenth of the $200,000.00 anniversary annuity on the twentieth of the $250,000.00 twenty-fifth anniversary annuity on the of the $300,000.00 anniversary annuity on the thirtieth of the $350,000.00 thirty-fifth anniversary annuity on the of the $400,000.00 anniversary annuity on the fortieth annuity being The incremental nature of the to Ms. Sherman linked to longevity appear specious of Daniel’s existence would to render Attorney argument barring General's that a conflict of interest arises being guardian. Appellant’s Ms. Sherman from See Brief at 11. Her geared prolonging curtailing interest would be toward his life and not it. 1, 1992, was conducted before hearing September On two witnesses only Sokolove. Honorable Leonard and Ms. Sherman. testify Wiggins were Dr. examined neurologist,
Dr. a board certified Wiggins, 3, 1992, him be and found April on 42-year-old Daniel then stimuli, movements for withdrawal save nonresponsive as a the witness described This was pinched. when function. any not brain require reflex which did “primitive” tracheostomy and a by a breathing being was aided Daniel’s inserted surgically that had been (gastrostomy) tube feeding of medication receipt permit into his stomach to nutrition. tests, both
Further, EEG and MRI Wiggins Dr. conducted no normal brain areas of “[t]here were of which showed both abnormalities of “profound were activity” and there abnormalities, with those hemispheres.”2 cerebral Someone *28 witness, eat, or interact speak would not be able noted the Also, observed the in our environment. way in an appropriate ability of the witness, person deprives such a condition think, pain or experience pleasure. records and his examining patient, the medical
After was in caretakers, opinion that Daniel Dr. was Wiggins state”,3 he could do only thing and the “persistent vegetative ‘‘periphery” enables one by Wiggins, Dr. brain 2. As observed think, by breathing are controlled while one's and heartbeat to talk and activity "deep in ... brain stem.” persistent vegetative as follows: Wiggins state 3. Dr. defined you any way. interact with it's who breathes but wouldn’t "... one is lost because capacity and swallow in a normal manner The to chew hearing effectively. voluntary, looking or are as with those functions effectively only persistent vegetative can do thing state] in a [one breathe, beat.” N.T. 17 and their heart Director, Supreme by As United States Court noted Cruzan 2841, Health, Dept. U.S. 267 n. 110 S.Ct. Missouri (1990): n. 111 L.Ed.2d Plum, "persistent vegetative state” Dr. Fred the creator term "vegetative expert subject, on the has described and a renowned following state” in the terms: “ functioning entirely body 'Vegetative state which is describes temperature. It It main- controls. maintains terms its internal digestive pulmonary It maintains beat and ventilation. tains heart effectively was breathe and his heart would continue to beat. Dr. Wiggins believed that Daniel would not improve. This opinion (Dr. Cook) was expressed second neurologist who examined Daniel and prepared report for the court which found him to inbe the same condition. believed,
Both experts within a reasonable degree of medi- cal certainty, that Daniel’s condition would not improve as evidenced by his status quo the last years. seventeen fact, Notwithstanding such a in light of the “superb” nursing (and receive) care Daniel had received was continuing over years, his life-span could extend for another twenty ten to years.
However, in response query to a by the court in regard to the quality-of-life aspect, Wiggins Dr. opined that Daniel does not have sufficient cognitive power to know of his own exis- tence, nor does he experience pleasure pain. stand,
When Ms. Sherman took the gave she an account of a who, son accident, after his 1971 motorcycle could communi cate “facially” with her use the words “itch” and “eye” to express his- wants and needs.4 After his second injury in whereby comatose, he became he was not able any exhibit awareness of his situation. His condition has not changed. Although he can “express” he pain, makes no sound, and he cannot hear or see.
Ms. Sherman admitted that she never spoke to her son about his wishes should the situation in which he now finds Nevertheless, himself occur. in the absence of any quality to life, his Ms. Sherman believed her son should be afforded the *29 opportunity, after seeing limp his and body lifeless over the years, to “rest in peace and be with God.” activity. activity It maintains reflex of muscles and nerves for low responses. level conditioned But there is no behavioral evidence of either self-awareness or surroundings awareness of the in a learned ” Jobes, 394, 403, (1987).
manner.’ In re 108 NJ. 529 A.2d Despite speech 4. classes in speak. Daniel did not learn to He did learn "behavior” and was described his mother as “more sad” as prone time agitation went on and to exhibit and tears over his frustra- tion. a life”, player, a he was football e.g., “loved Because her son band, him to see school high in the drummer surfer “He would his wishes: not in accordance with “suffering” was upon conclusion based this way.” this She not want live than it, my I son better fact, “Because knew phrased as she 48. N.T. living.” liked knew him” and “he anyone opinion issued an testimony, the court After the close request her Sherman petitioner/Ms. granting order The Commonwealth from her son. all life-support withdraw exceptions which filed Pennsylvania’s Attorney General instant of the perfection were denied and followed grounds on that: issuance of the order challenging the appeal guard- by failing appoint 1. erred Orphans’ The Court interest a life-and- patient’s represent ian ad litem to proceeding. death by authorizing erred Orphans’ Court evidence his convincing clear and requiring
death without life-sustaining intent about medical treatment. I issue will posed, of the first addressing
Before the merits that of the Sherman respond argument petitioner/Ms. to the guardian ad litem Attorney failure to raise the General’s trial results its waiver. issue at to raise cavil that the failure jurisdiction, beyond In this it is timely appellate them waived issues in a fashion renders Co., 457 Trust Pa. Lehigh Valley Dilliplaine See purposes. 302(a). bar, At (1974); Pa.R.App.P. 322 A.2d was conduct- pre-trial hearing that Attorney General states time, he alleged, “requested At it is of 1992. ed June expert independent court to ... appoint Brief at 4. Appellant’s ad guardian litem.” However, Attorney General that the the record discloses ap- for the writing only his “recommendations” reduced Daniel and a continu- neurologist of a to examine pointment testing. of the pre-trial hearing pending completion of the ance by the court. requests granted 9. Both were See Record No. issues until the guardian and notice appears No mention *30 646
filing exceptions order granting petition- court’s Sherman her request for relief. er/Ms. Id.
Thus, but for the Attorney General’s exceptions and refer-
ence in
appellate
his
brief to the proffering of the issues
reviewed,
sought
I have no record evidence to refute the
court’s
finding
the issues were waived for failure to raise
either one at
pre-trial
hearing. Contrast Thatcher’s
Drugs
Inc.,
Supermarkets,
Consolidated
524,
391 Pa.Super.
(1990),
5.
litigants
made in the briefs are not sufficient to fill the
void created
preservation
deficient record on a
question. McCor-
Allegheny
mick v.
Hosp.,
General
Pa.Super.
responsibility upon appellant. to so act is See Rule the first preserve Attorney General’s failure For the *31 below, to review, I, find it be the court for as did issue waived.7 a “clear and adopt this to issue asks Court remaining in in known the vernacular proof of cases standard
convincing”
is
cases,
assigned
of which
to die”
the absence
“right
as
a
remedial
a remand
necessitating
as error
presently
seeking with-
petition
anew Ms. Sherman’s
judge
measure to
Daniel.
treatment
for
life-support
drawal of
of what standard
embarking
analysis
an
upon
Before
life-
a
efforts to withhold
guardian’s
is
be
to
proof
applied
to
in a persistent
ward
incompetent
treatment
to
not
case in
state,81
to
that this is
a
point
wish
out
vegetative
perish.
is
let
the Court
asked to
someone
which
dead,
terminally
is
ill.
nor
he
“medically”
Daniel is neither
pu,t
permit
guardian
to
a
to
in
Rather,
this Court is asked
by
Daniel to die
starvation
allowing
motion a series
events
deprivation
dehydration.
This
benevolent
type
otherwise,
if,
my
arguendo, I
review of the entire
Even
were to hold
7.
to
applicable
subject
would lead me
find
law
hand
record and
failing
part
below in
of discretion on the
court
no abuse
guardian
appoint a
ad litem.
by
represented adequately
I
that Daniel's interests were
believe
Estate,
i.e.,
431 Pa.
person,
See LaRocca
guardian of his
Ms. Sherman.
105,
337,
542, 549-550,
(1968); Curry Appeal, 390 Pa.
246 A.2d
(Purdon's
(1957);
Pa.Leg.
§ 3504
20 Pa.C.S.A.
134 A.2d
Ser.,
2, 1992).
I
Ms. Sherman for
Thus
see no need
remove
No.
guardian
a
appoint
or
ad litem.
another
Further,
subject
provider can be
physician
no
or health care
because
any
related to
liability
participating in
conduct
or civil
for
to criminal
life-sustaining
5407(a)
Chapter
patient, see
Section
for a
treatment
(Purdon's Pa.Leg.Ser.,
Act
No.
Directive for Health Care
of the Advance
2,
(“the Act”),
1992)
convincingly
guardian
that
argue
a
nor could one
exposed
or civil
acting
a
to criminal
pursuant to court order would
prosecution
Act from
liability
similar conduct insulated under the
for
participation
a
purpose to
of district
liability, I see no
be served
attorney in cases like the one at bar.
limiting my analysis to situation in which
that I am
a
I would remark
having expressed
person
incompetent without
competent
has become
continuing life-sustaining
when
in
view on
he/she
his/her
persistent
vegetative
state.
any
way formulating a
review
scenario
I
in no
standard of
am
presently before
Court.
the one
this
other than
(as
puts
nutrition and
hydration
perspective
debate
results)
multiple
opposite
evidenced
briefs espousing
death,
not between life and
but a discussion
focusing upon
thereof)
(or
quality of
the absence
death.
sure,
amici curiae
litigants
To be
all
have
coalesced
Daniel,
objective
achieve a common
what is best for
doing
Thus,
similarly
and all
situated.9
others
this Court’s role is
predicated
legal
limited one in
our decision
upon
that
must be
principles
analysis
and reasoned
to remain true to our
goal
ameliorating
limited to
facts with which
disputes
we are
presented.
note
supra.
See
This case is
of first
impression
Pennsylvania
one
appellate
no
has ruled on
posed.
court
Nonethe-
question
less,
the courts of some of our
states
sister
and our own
*32
Courts of
Pleas have
Common
been confronted with similar
unanimity
issues.10
has
permit
Near
been attained to
individ-
resolving
scrutiny,
9.
In
acknowledge
the issue under
I wish to
Pennsylvania
Society
benefit of the
of amici curiae:
briefs
The
Medical
urging
Pennsylvania
seeking
affirmance
Catholic Conference
reversal of the court’s order.
My
following
examination
cases has uncovered
decisions
here;
dealing
confronting
with an
similar to the
issue
one
us
to-wit:
207,
(1987);
Fleming,
Rasmussen v.
154 Ariz.
674
v.
741 P.2d
Barber
1006,
Super.Ct.
Calif.,
Cal.App.3d
Cal.Rptr.
State
147
484
195
of
of
;
(1983)
Super.Ct.
Dority
County
San
Cal.App.3d
v.
Bemadino
145
of
273,
(1983);
Cal.Rptr.
Bartling
193
288
Glendale
v.
Adventist Medical
Center,
961,
(1986);
Cal.App.3d
Cal.Rptr.
184
360
229
Bouvia
Su
v.
1127,
(1986);
per.Ct.
Angeles,
Cal.App.3d
Cal.Rptr.
179
225
Los
297
of
III,
185,
(1988);
Cal.App.3d
Cal.Rptr.
In re Drabick
200
245
840
Dist.,
419,
Trujillo v.
& Tenth
198
Dist.Ct. in
Judicial
Colo.
P.2d
601
for
127,
(1979); Foody
Hosp.,
1072
v.
Conn.Sup.
Manchester Memorial
40
(1984);
Center,
482
Wilmington
A.2d 713
(Del.Ch.1980);
Severns v.
Medical
425 A.2d
Perlmutter,
156
1978);
v.
(Fla.Dist.Ct.App.
649
accomplish
or their wards
seeking
uals
death
themselves
Harmon,
v.
by Cruzan
that end. See Cruzan
408,
760 S.W.2d
200,
(1984);
England
Brophy v. New
Mass.App.Ct.
413 Missouri Health, Dept. 261, 2841, 497 U.S. 110 111 S.Ct. L.Ed.2d 224 (1990).
Absent the
of a
subject,
existence
statute on the
the various
legal precepts
upon
relied
to authorize the withdrawal of
sustenance from a
person
persistent
vegetative state have
been reduced to a “best interest” analysis, “substituted judg-
ment” criterion or a “clear and convincing” evidence standard
of proof which draw their strengths from the federal or state
See,
constitutional
e.g., Rasmussen v.
rights
privacy.
Fleming,
207,
674,
(1987);
154 Ariz.
741 P.2d
Bouvia v.
682
Ct.,
Superior
1127,
297,
179 Cal.App.3d
Cal.Rptr.
225
301
Severns,
In
(1986);
re
156,
In re
(Del.Ch.1980);
425 A.2d
158
A.C.,
1235,
In re Guardianship
(D.C.1990);
573 A.2d
1244-47
Browning, 543 So.2d
258,
267 (Fla.Dist.Ct.App.1989), aff'd
(Fla.1990);
Brophy v. New England
“No right held more or is carefully guarded more law, the common than the every individual to the possession and control of his own person, free from all *34 others, by unless clear restraint or interference of ..., to one’s authority right of law ‘The unquestionable to person right complete immunity: be said to be a of ” be let alone.’ is a jurisdiction, physician/patient relation this because one, in the renders services physician consensual where consent, under of there is an actionable tort absence informed 144, 223 battery.11 423 Pa. theory Gray Grunnagle, the of Doe, 371, 382, (1966); A.2d 663 In re Jane 45 D. & C.3d (Phila.Cty.1987). WL 226878 the of regard “right noted one commentator with to by
As self-determination”: right only of determination can be exercised
Since the self condition, a competent patient her person evaluate right forfeits her of self determination lacking capacity this maker, in surrogate standing place the unless the decision preference. This patient’s asserts the incompetent, decision-making this doctrine surrogate is embodied will on the substitute judgment. rely substitute Courts surrogate the decision-maker only doctrine when judgment person’s preferences with incompetent demonstrates the the a treat- certainty. expresses reasonable When court prior competence, loss of the preference ment her capacity to surrogate merely supplying views Thus, a dying enforce choice. incompetent’s rights right outweighs self determination provider other care to base patient’s family, physician, or their individual interests treatment determination on incompetent’s right The irreversible imperatives. ethical outweighs determination also the state’s interest self conjunction with law precept, 11. This when read one’s common signals with right statutory one receives of self-determination (see infra) passage during of the Act the 1992 session of Pennsylvania ingredients Assembly, General constitutes the out life-sustaining choose discontinue which I conclude through incapacitated person may be exercised his/her accomplished guardian. auspices of court All is to be under the See, e.g., Guardianship case-by-case Matter Ham under a basis. lin, (1984). 689 P.2d See discussion Wash.2d infra. *35 652 life, suicide,
preserving preventing protecting party- third dependents dying patient, of the the ethical preserving integrity profession. of the medical
The crucial trigger judgment exercise of substitute is a determination of what the incompetent’s choice would be if In competent. relatively were the few cases shelThe] clear, patient’s preference where the is substitute judgment is the a proper surrogation method. When court cannot determine a patient’s preference, application strict the of substitute In judgment impossible. doctrine becomes such case, a a allowing surrogate judgment substitute her[/his] for surrogate’s that of the would result the supplying incompetent’s the content of the choice rather merely than implementing clearly choice. This violates underlying the use of principles judgment substitute Thus, effectuate a of self determination. normally rely courts do not on a surrogate supply a treatment decision a patient previously who has not issue.[12] expressed preference a clear on the Note, Quinlan In re Revisited: The Role in Judicial Protect- ing Privacy Right Dying Hast. Incompetents, 15 Const. (1988) (Footnotes omitted; L.Q. 484-^486 emphasis add- ed). Commonwealth, this a case which touches upon the consideration, presented
issue for our the court applied “clear convincing grant evidence” standard to a guard- of a ian/spouse 64-year-old incompetent, persis- who was vegetative tent state with no hope recovery, declaratory judgment seeking authorization for the removal of a nasogas- Interestingly, Majority upon judgment” relies a “substituted which, sense, approach, purest upon patient’s expression in its rests concerning deciding view issues in whether to cease However, providing medical care. at bar this is undermined the fact that nowhere in the record is there evidence that Fiori vocalized his position life-sustaining anyone on the use of treatment should he or else Thus, persistent vegetative appear be in a state. it would that the Majority advocating "hybrid” judgment the use of a substituted approach. Preate, Pa.D. & C.4th feeding Ragona See trie tube. 1990). (Lackawanna Cty., matter, governing
Noting legislation absence subject; law on the analysis on an case court embarked to-wit: jurisdictions other
There is a
from
plethora
precedent
in the
and these courts
concerning
specific
issue
case
required before
degree
specificity
in the
have varied
the patient.
wishes of
being guided by
prior expressed
O’Connor,
court, in In re
72 N.Y.2d
highest
New York’s
(Ct.App.1988,
amended
531 N.E.2d
N.Y.S.2d
*36
1989),
(e.g.,
high degree
specificity
required
relatively
to the
than immediate reactions
“expressions were more
hearing
or
of another’s
unsettling
seeing
experience
at
72 N.Y.2d
532
unnecessarily prolonged
[534
death.”
614).
893],
convincing
N.Y.S.2d at
531 N.E.2d at
“Clear
needed,
firm,
and casual
of a
settled decision was
evidence”
remarks,
Fur-
if
not sufficient.
repeatedly,
even made
were
thermore,
to be
relevant to the
directly
the statements had
In
the
treatment.
proposed
current condition and
patient’s
contrast,
court, in
re
Jersey’s
Conroy,
In
highest
New
(1985),
less
required
specificity
N.J.
Of course the U.S. Director, Health, Department Missouri Cruzan [v. (1990) 2841, upheld U.S. 110 S.Ct. L.Ed.2d ] standard convincing Missouri’s use of the clear and evidence expressed wishes. In that patient’s previously to establish a case, order parents sought directing a court Nancy Cruzan’s feeding of their artificial daughter’s the withdrawal a persis- had into digressed after she hydration equipment life- law that such provided state. Missouri vegetative tent if the only peti- be discontinued measures could sustaining wishes as to incompetent’s express tioner demonstrated convincing “clear and by of such treatment the withdrawal stake, at After the state interests analyzing evidence.” no held that because there was Court of Missouri “Supreme desire to have life- Nancy’s evidence of convincing clear and circumstances, under such treatment withdrawn a request.” to effectuate such authority her lacked parents Cruzan, 265, 110 at 2845. 497 U.S. at S.Ct. supra, Cruzan, petitioner only testimony produced
In made to a incompetent’s general statements consisted live should she face that she would not want to housemate Id., In at 2855. 110 S.Ct. “vegetable.” life as furnished testimony of relevant critiquing paucity distinctly stated Supreme the U.S. Court petitioner, Cruzan not deal in terms with with- observations did “[t]he and nutrition.” hydration treatment or of drawal of medical n Id. short, that a state is court concluded the Cruzan free which proceedings in these adopt proof a standard incompetent’s convincing clear and evidence requires wishes, *37 liberty although equally a state is express stringent less standards. formulate added). for (Emphasis Poised 6 Pa.D. & C.4th at 206-208 that Ruth by Ragona found the court was consideration and state, irreversible, vegetative and that she persistent was in an by means her disdain for medical intervention expressed had feeding artificial tubes. of so, recounted, detail, in the medical doing
In the court by and her examination four neurolo- history in persistent vegeta- whom that she was a gists, agreed all of state, no her condition was irreversible and there was tive improvement. of possibility
Next, statements patient’s the court heard evidence of a which it found was “clear six-year span and conduct over life- intent to refuse expressed of an convincing” evidence legislation and, directly applicable sustaining treatment absent any public of contrary, transgression was no to the there of the Commonwealth. policy on proceed slowly, for the Court to advantageous
It
basis,
the state
awaiting
action
a
case
while
case
Forward,
Moore,
Step
One
Steps
“Two
See
legislature.
Jersey’s
“Right-to-Die”
Latest
Analysis
An
New
Back”:
(1988).
Decisions,
Since
Rutgers L.J.
993-997
decision, however,
fit
Assembly has seen
our General
Ragona
I find instructive
establish
legislation
which
promulgate
issue at hand.13 Other states
resolving
ing standards
statutory
relevant
the resolution
found state
law
have
Director,
Dept.
In
Missouri
issues.
Cruzan v.
these
2841, 2849-51, 111
Health,
261, 275-277, 110 S.Ct.
497 U.S.
(1990),
that:
reported
it was
L.Ed.2d
Drabick,
185, 245
Conservatorship
Cal.App.3d
denied,
lost upon incompetence and is best preserved by allowing
others “to
amake
decision that reflects
patient’s]
[a
inter
ests more
than
closely
purely
would
technological decision
Id.,
to do
possible.”
whatever is
200
at
Cal.App.3d
245
Cal.Rptr., at 854-855. See also In re Conservatorship of
Torres,
(Minn.1984) (Minnesota
357
332
N.W.2d
court had
statutory authority
constitutional and
authorize
conser
vator to order the removal
incompetent
of an
individual’s
interests).
respirator
since
best
In In re
Longeway,
Estate
In the 1992 (Dece- to Title Pennsylvania of enacted amendments wealth Fiduciaries) dents, Pennsylvania and Consoli- Estates of alia, incapacitated persons, concerning, inter dated Statutes and liabili- guardians, powers, of their duties appointment ties, whereby person may a establishing procedure to a indicating physi- execute advance written declaration continue, initiate, withhold or to person’s cian desire in the life-sustaining medical withdraw certain to in a is and is determined person incompetent event unconscious; further permanently terminal condition to be statutory in terms of incapacitated persons providing procedure, guardians, guardians’ scope, appointment Preamble Act No. duties liabilities.14 See powers, (Purdon’s 1992). Pa.Leg.Serv., No. 1992-24 Assembly session of the General during Enacted same For Health Chapter captioned: Advance Directive was Act”). (hereinafter seq. § et It has Act “the Id. at Care competent all right its purpose effectuation own medical care” relating “to control decisions their adults 5402(a).15 §at a declaration to that effect. Id. by executing However, concerning Act no presumption creates a declaration has not executed any person intent who Maryland legislation: recently passed similar Health Care Deci- has 14. Measures, Chapter H.B. No. Life-Sustaining sion Act— Regular Session. Section 5402 reads: qualified assembly general competent that all adults have find relating This right to to their own medical care. control decisions subject society, such as the maintenance to certain interests of preservation profession and the of ethical standards in the medical technological protection proce- life. Modern medical human beyond prolongation natural possible dures of human make procedures suffering application to an individual limits. The of some
consent to the use or withholding of life-sustaining procedures in the event of a terminal condition or a of permanent state 5402(b). § unconsciousness. Id. at Despite the limitations adults, noted the Act’s “competent” reference to I look to it as a with backdrop, along the case law and treatises on the posed issue for our review. many The Act is but one of elements making up approach” my “functional proposed resolution of this particular case.
Further, it must be noted that the Act renders immune *40 from criminal and liability any physician civil or health care in provider participates who determining the course of life- 5409(c). 5407(a), §§ sustaining treatment. Id. at (under The Act Chapter titled: “Incapacitated Per- sons”) recognizes every that individual unique has needs and Thus, differing promote general liabilities. to the welfare Commonwealth, all citizens of the Legislature: the ... system a which permits incapacitated established] persons to participate fully possible as in all decisions them, which which persons meeting assists these in affect the essential requirements their health and physical for safety, protecting rights, their managing their financial re- sources and or developing regaining their abilities to the maximum possible extent and which accomplishes these objectives through the use the least restrictive alterna- tives; and recognizing that when guardianship further services necessary, are it is to important facilitate finding suitable individuals or entities to serve willing as guardians. added). §
Id. at (Emphasis The procedure to be adhered to in assessing incapacity one’s is as follows: process dying may difficult and uncomfortable cause loss of
patient dignity only precarious and secure continuation of a and prolongation burdensome of life. "Incapacitated person” ability means an adult whose to receive and effectively evaluate information any way and communicate decisions in impaired significant is partially totally to such a extent that he is or manage unable to his require- financial resources or to meet essential physical safety. ments for his health and court, upon presen and upon petition, hearing and The evidence, person may find convincing dear and tation of incapacitated to Commonwealth be domiciled estate.[17] guardians person or his or guardian appoint alleged be interested may any person petitioner The The court dismiss welfare. incapacitated person’s not has proceeding it determines that the proceeding where alleged incapacitated or been instituted to aid benefit the incomplete provide or fails to person petition or that the * * * Supreme The Court proceed. sufficient facts to * * * purpose. establish a uniform citation this shall alleged incapacitated be made on Personal service shall be petition shall person, and the contents and terms of possible language maximum extent explained * * * likely is most to understand. terms individual in such hearing given be petition shall [NJotice residing persons court direct all manner as the shall juris Commonwealth who are and would within the sui alleged incapacitated in the estate of the entitled share time, if he that to the person person if he died intestate at time, to the institution person died intestate at alleged incapacitated residential services providing *41 direct, court person may and other as the parties to such providers.... including other service (e) include petition ... shall Petition contents. —The * * * it is over which specific incapacity areas and guardian assigned powers be requested that If limited or guardian. a qualifications proposed shall sought, petition of the estate is plenary guardian include, income value of the estate and net gross also all sources to the extent known. from requires Legislature convincing "clear evidence” is If the that and judged "competent” person is be the standard which a once person or "incompetent”, guardian appointed to have a his estate, legislation public policy and an I consider such an evocation of may legislative purpose approach to the take indication of as courts dealing persistent vegetative in with a a state.
(f) Who appointed guardian. may court —The appoint guardian any qualified individual.... The court shall not ... appoint person whose interests conflict with those of the incapacitated.... Any family relationship to not, itself, such individual shall be considered as an interest alleged incapacitated person.... adverse to the (e) (f) added). 5511(a), § Id. at (Emphasis & process a determination of making incapacity appointing guardian, Orphans’ Court shall consider and make of fact specific findings covering:
(a) cases, incapacity. Determination of all the court —In shall specific findings concerning: consider and make of fact
(1) any disability The nature of condition or which impairs capacity the individual’s to make and communi- cate decisions.
(2) The capacity extent of individual’s to make and communicate decisions.
(3) services, The if guardianship any, light need for of such factors as the availability family, friends and other supports making to assist the individual decisions existence, in light of the if of advance any, directives such as durable powers attorney or trusts.
(4) type guardian, limited or plenary, person or needed based any estate on the nature of condition disability capacity and the to make and communicate decisions.
(5) The duration of the guardianship. (6) prefer The court shall guardianship. limited (b) ...
(c) Plenary guardian of the person. may ap- court —The point plenary guardian of the person only upon finding the person totally incapacitated and in need of plenary guardianship services. *42 (c) added). 5512.1(a), §
Id. at (Emphasis type As for the of evidence needed to conclude one is incapacitated, Legislature the has dictated: present must testi- petitioner
To the incapacity, establish qualified deposition in or from individuals mony, person by evaluating individuals with and by training experience alleged the the which incapacities type petitioner, incapacities alleged the nature and extent of the establishes mental, person’s emotional and disabilities and the condition, skills. The behavior and social physical adaptive the services present regarding must also evidence person alleged for the being requirements utilized to meet essential safety, manage incapacitated person’s physical health regain the develop the financial or to or person’s resources abilities; types evidence assis- person’s regarding less why and as to no restric- required person tance re- and evidence appropriate; tive alternatives would person’s the extent of the garding probability change. or incapacities may significantly lessen §at 5518. Id. appointed position,
In it shall be the complying with his/her (and in regard act duty person of the to assert guardian to) person. rights incapacitated and best interests of the inca- preferences wishes and doing “Expressed so: possible to the respected greatest shall be pacitated person Lastly, specified § unless otherwise extent.” Id. at “shall appointing guardian, appointee the court’s order duty not have the to: power (1) incapacitated person on Consent behalf abortion, sterilization, electro-convulsive psychosurgery, therapy healthy body organ. removal or
(2) or divorce of the marriage Prohibit the consent incapacitated person.
(3) incapacitated person Consent on behalf of the or any experimental biomedical behavioral performance or any or biomedical procedure participation experiment. behavioral
(e) Knowledge objection. hearing to determine —In consent to a guardian shall be ordered to whether omission, if knows has specific guardian act or *43 incapacitated objection reason to know of the to person’s omission, the action or objection whether such had been expressed or prior subsequent to to the determination of incapacity, guardian report shall to the court such or knowledge information.
(f) granted guardian. Powers and duties not —The court not grant guardian powers to a controlled statute, to, other but including, not limited the power: (1) incapacitated person To admit the to an inpatient psychiatric facility mentally or State center re- for tarded.
(2) consent, To on behalf of the incapacitated person, to relinquishment of the person’s parental rights. (g) Criminal civil immunity. the absence of —In gross negligence, misconduct, or recklessness intentional government, a unit of local or non-profit corporation ... guardianship support agency as a appointed guardian not criminally civilly shall be liable or liable for damages duties as a performing guardian person, authorized under this chapter. added).18 §
Id. at
5521(d)-(g) (Emphasis
clearly
As is
evident from Section
where an individual
has
his or
espoused
regarding
her intentions
the use of life-
sustaining
prior
becoming
treatment19
their
incapacitated,
Act,
person
adjudicated
18. Under Section 3206 of the
who has been
§
incapacitated
pregnant
under 20
Pa.C.S.
is
and under the
age
parent
shall not have an abortion unless the consent of the
or
consent,
guardian
deciding
grant
is obtained.
“In
whether
such
pregnant
parent
guardian
only
woman's
or
shall consider
their child's
or ward’s best interests."
aspect
acting
appears
This
in the "best interests” of a ward
Sections 4412.2 and 5521 of the Act.
"Life-sustaining
treatment” is defined at Section 5403 of the Act:
that,
Any
procedure
or intervention
when administered
ato
qualified patient,
only
prolong
process
dying
will serve
or to
permanent
maintain the
in a state of
Life-
unconsciousness.
hydration
treatment shall include nutrition and
adminis-
by gastric
intravenously
any
tered
tube or
other artificial or
qualified patient
specifically
invasive means
the declaration
so
if
provides.
[Emphasis added]
wishes “shall
respected
greatest
to the
possible extent.”
Therefore, in those cases
person
where the
has documented or
verbalized an
in respect
intention
to life-sustaining treatment
in advance of incapacitation, a wish that life-sustaining treat-
with,
ment not be
if
implemented
complied
possible.20
to be
Although courts have had comparatively
difficulty
little
die”,
recognizing the existence of a “right to
there has been
*44
substantially more uncertainty about how it should be imple-
mented, especially in the case
patients
of
who lack decision-
Meisel,
Die,
making capacity.
§
Right
supra
to
at
6.1. As the
remarked,
United
Supreme
States
Court
after
a
reviewing
dealing
host
cases
with discontinuance of artificial nutrition
hydration
and
to an incompetent: “As these cases demon-
strate, the common-law doctrine of informed consent is viewed
generally
as
encompassing
competent
of a
individual
that,
to refuse medical treatment. Beyond
these cases demon-
strate
similarity
diversity
both
and
in their
to
approaches
decision of
agree
what all
is a perplexing question with
Cruzan,
unusually strong moral and ethical overtones.”
su-
pra,
In those instances where there is a lack of a expressed bar, preference, as is the case at court-defined, criteria come into play making treatment decision. See Note, Quinlan Revisited, In re supra, Const.L.Q. 15 Hast. 487.
I my Act, take directive from the out of which semblance of form and substance can gleaned setting perimeters be when dealing alleged with an incapacitated person; to-wit:
1) Court may involvement begin petition being with a filed by any person in the alleged incapacitated per- interested welfare, 5511(a). §§ son’s 20 Pa.C.S.
2) Appointment guardian follow, of a person may which may include a family having member no adverse interest, (f). 551(e), § 20 Pa.C.S. possible
20. Such is not with Fiori he because never demonstrated his intentions, treatment, as incapacitated. to medical if he were to become 3) in a court incapacitation is to be made Assessment of may augmented by independent evalua- setting and be court, 20 appropriate by if deemed incapacity, tion (d). 5511(a), § Pa.C.S.
4) to persons all sui given of the shall be proceeding Notice alleged estate to share juris and entitled estate, and such other incapacitated person’s intestate direct, § 20 Pa.C.S. the court persons 5) testimony be deposi- must incapacity Evidence the individual’s qualified from evaluate tion individuals is to be elicited likelihood incapacity, evidence change, lessen or Pa.C.S. incapacity may significantly § 5518.
6) person’s necessary to establish proof level evidence, 20 convincing” shall “clear “incapacity” 5511(a). § Pa.C.S.
7) appoint guardian it appropriate If the court deems to assert duty guardian shall be the of the person “[i]t person”, incapacitated rights best interests preferences” wishes and “expressed the caveat that with *45 possible, be followed the shall where incapacitated person § 5521. 20 Pa.C.S.
8) the guardian, and duties of a outlining powers In the consent, the on make allowance of may provision court to withdraw or withhold incapacitated person, of the behalf 5521(d). treatment”, § cf. 20 Pa.C.S. “life-sustaining 9) or of “life- The to allow the cessation denial conclusion court,21 i.e., by is to be made sustaining treatment” process pointed judicial is out that the cumber It has been some 21. some, interjects delays significant into the decision- inconvenient and incompetent cut making process, rights person are such that adjudication because dies before final could obtained. short Meisel, he/she Die, cases). (Citing way, § Right supra at Stated another 6.9 family physician(s) and to make. Id. at be left to the should 258, cases); (Citing Browning, 261 (Supp.1993) § In re 543 So.2d 8.6 Morrison, 1990); (Fla. (Fla.Dist.Ct.App.1989), 4 re aff'd 568 So.2d Jobes, 304, 530, (1988), citing In Cal.App.3d Cal.Rptr. 535 re 206 253 394, 434, Note, (1987); Right 451 In re Storar: The 108 N.J. 529 A.2d Patients, 1087, (1982). Incompetent 1104 43 U.Pitts.L.Rev. Die
665 exercise the allowing guardian court enters an order “life-sustaining to refuse the incapacitated person’s right treatment”, only purpose prolong where the served is to in a state of process dying or to maintain the unconsciousness, § 20 permanent Pa.C.S.
10) as irrever- incapacitated person diagnosed The has been state; vegetative comatose or in a sibly persistently 11) receiving “life-sustaining The incapacitated person Act, § 5403. treatment” as defined under the 20 Pa.C.S. 12) incapacitated Two one of whom be the physicians, concur in the person’s attending physician, diagnosis.22 13) incapacitated person’s right outweighs any inter- Commonwealth, does, normally ests of the as it 20 Pa.C.S. 5402(a), i.e., § interest incapacitated person’s it is best treatment,” to -withhold or 20 Pa. “life-sustaining withdraw 3206, §§ C.S. 5512.1 and 5521.
I point weight would out that the to be each of the given proposed vary particular criteria a court will -withthe facts Greenspan, each case. Cf. In re Estate 137 Ill.2d (1990). 860, 867, Ill.Dec. Additionally, 558 N.E.2d because of the inherent sensitive nature of a to die” “right case and the cessation necessarily irrevocable nature order, I would allow for review of the instant appellate type tribunal, permit case and to the scope appellate broadest with the Court not being by any bound inferences deduc- preference I find that this Commonwealth’s avowed for life over the (as Act) precedence cessation of life manifested in the takes over the Moreover, speed-factor resolving "right although to die" issue. extant, delays judicial making general involved in decision are statutory customary procedures there are available in this Com expedited emergency monwealth for resolution with access to our 301(e) Pa.R.App.P. Dept. See courts. v. Director Missouri Cruzan Health, 2841, 2852-53, U.S. 110 S.Ct. L.Ed.2d (1990), wherein it was written: State is entitled to consider that a “[A]
judicial proceeding regarding incompe to make a determination an one, may very tent’s wishes well not be an adversarial with the added guarantee finding adversary process brings of accurate fact that the (Citation omitted). with it.” See, 1, 860, e.g., Greenspan, In re Estate 137 Ill.2d 146 Ill.Dec. 22. 867, 1194, Grant, (1990); Guardianship 558 N.E.2d 1201 In re 109 545, 445, (1987). Wash.2d 747 P.2d 456
666
Terwilliger,
Pa.Super.
In
304
tions of the
court. See
re
lower
Bender,
(1982);
Pa.Super.
261
Under substituted must patient’s rights make exercising incapacitated life-sustaining on the forego treatment decision whether had patient patient of what the would have decided basis Die, Meisel, Right supra been able do so. concisely were forth in In re perimeters of the standard set N.J. at A.2d at 1232: Conroy, supra, test, life-sustaining limited-objective Under from Claire patient be withheld withdrawn trustworthy Conroy’s situation when there is some evidence treatment, have that the would refused is satisfied that it is clear that burdens decision-maker
667 mean By of that life for him. this we outweigh the benefits and will continue to suffer patient suffering, that the life, of his unavoidable throughout expected duration (the prolonged pain of his and that the net burdens pain, less the amount of his life with the treatment suffering likely experience would patient and duration of that the pain withdrawn) markedly outweigh any if the treatment were intellectual satis- enjoyment, emotional physical pleasure, be able to derive from life. patient may faction that the still limited-objective permits This standard the termination ex- unequivocally for a who had not patient treatment it becoming incompetent, when is pressed his desires before question merely prolong clear the treatment would patient’s suffering. for- proper patient Under the circumstances —where a was merly competent judgment substituted standard is —the Rosebush, supra, test. In re 491 N.W.2d appropriate (Citation omitted). However, applied never-competent as the substituted standard is patients, judgment inappropriate patient because it cannot be ascertained what choice the would (Citations omitted). if I competent. have made Id. would that, therefore has patient compe- hold where the never been incompetent expressing tent or has become without ever efforts, life-support decision-making view to terminate test guides guardian that better is the “best interests” stan- dard, supplemented convincing with the clear and evidence of proof Majority contrary, formula. Since the holds to the I cannot approach. embrace such an
For the “best interests” standard was explanatory purposes, Grant, Guardianship summarized In re 109 Wash.2d modified 757 P.2d P.2d 567-568, (1987), (1988), follows:
There will be situations where it cannot be ascer- many tained what choice the would make if competent. cases, guardian good-faith such must make a determina- withholding tion of whether the of life incompetent patient’s would serve the best interests. The following is a nonexclusive list of the factors which should be in making considered this determination: [Ejvidence patient’s present physical, level about emotional, cognitive functioning; degree sensory, condition, treat- resulting from the medical physical pain treatment, ment, respectively; and termination humiliation, dignity prob- and loss of dependence, degree treatment; the life *48 resulting from condition ably and with without prognosis recovery and expectancy effects, risks, treatment; the and the side options; various of options. benefits of each those exis- dignified In of an individual to a balancing right the tence, a of prolongation without and burdensome precarious life, in hu- maintaining interest against Commonwealth’s in being preserved the medical man life and ethical standards I a of the “best interests” of community, melding find that convincing under a clear and patient approach, scrutinized standard, salutary evidence achieves the features emblematic human dignity a life and the society that cherishes an acknowledge a who individual’s people existence. We are Cruzan, life, liberty pursuit happiness. right to (State convincing to a supra authority has establish clear has its in right case, right in a to die which roots standard 14th Amendment of the Consti- liberty interest of the U.S. tution). objective, prudent I deem it to have To achieve this as a source of on dispute-resolution the court involved As the as life versus death. Missouri question so sensitive point: noted on this Supreme Court has ability to decide an issue self law—the Autonomy means It is any to or to other. responsibility without reference found rights to claim that which are logically inconsistent Rights spring in the Bill of and which lurking shadow the autonomy by can be exercised personal from concerns for rigid absent the most of formalities.... another that common refuse do we believe law to Nor personal autonomy exercisable treatment —founded —is A by guardian’s power third absent formalities. party authority, choice from the state’s third arises party exercise guardian The is rights not the constitutional ward. patriae power. delegatee parens of the state’s omitted), (Citation Harmon, at 425 supra, Cruzan v. S.W.2d Health, Director, Dept. v. Missouri f'd Cruzan af (1990). 2841, 111 110 S.Ct. L.Ed.2d U.S. foremost, actions are motivated the desire my
First and
Belchertown
Saik-
preserve
Superintendent
life. See
(1977).
ewicz,
capacity,
With not since what kept motives be discovered and secretive life, and precious in the balance is one’s a valuable weighs not commodity proper inqui- which should be curtailed without end, I an alternate ry justification. espouse as to Toward that I believe approach Majority’s position, to the which better in patient Joseph serves the interests of such a as Daniel Fiori and the in particular public general.23 allow the Majority One last observation is that the would Fiori, patients, family fate of such as left to the devices of receiving hydration It is true that Daniel had been nutrition and for prognosis continuing up years, has the of to do so for to 10 17 and he longest by years. more The recorded survival such means extended life 417, years. Brophy England Hosp., 398 Mass. for 37 See v. New Sinai 670 resolve, an issue which even physicians
member and two soul-searching Majority requires' concedes an element of introspection by the heart-wrenching decision-makers and Obviously, the patient. will be in the best interest of what in medical condition interposed equation in all of which is made consul- recuperation, for prospects professionals. tation with medical are deciding before what choices pursued Given course viable, have necessity parties the interested would most checklist consistent with gone through mental factual precedent my to be satisfied as condition criteria proposed life-sustaining similar to patients measures cessation this writer is that only proposed Fiori. additive Mr. setting in a and not in the corridor discourse occur court would, my To less hospital or a doctor’s office. do some hangs in the opinion, patient be a whose disservice balance. Majority’s adoption
This disservice is manifested family qualified ap- “a physicians” close member and two Doe, 626, (1986); Guardianship 411 Mass. 637 see also 497 N.E.2d 512, 1263, (1992) (10 Guardianship years); re N.E.2d 1266 583 (8 Grant, (1987) years); 455 In re 109 Wash.2d P.2d 860, 862, Greenspan, Ill.2d 146 Ill.Dec. N.E.2d Estate of (1990) (17 persistent years to be record for then stated life-support). state on vegetative provided I have with statistics on number While not been presidential patients systems, 1983 a commission life-support on 5,000 approximately perma- any were that at one time there estimated Life-supporting treat- nently patients in United States. unconscious many physician reported patients. One is withdrawn from such ment single patients [at commission that "between 500 to the university hospital Pittsburgh, Pennsylvania] life-sustaining had have *50 important corti- permanent because of loss of the treatment withdrawn Study the of layers cal of the brain.” President’s Commission Behavioral Re- in Medicine and Biomedical and Ethical Problems search, Report Deciding Forego Life-Sustaining A the Treatment: on Medical, Ethical, Legal 176-177 & n. and Issues in Treatment Decisions Drahick, (1983); Conservatorship Cal.App.3d 200 245 Cal. of (1988). Rptr. 847-848 n. Steinbeck, areas, with See this most of I act caution. In sensitive Coons, Recovery Vegetative Carrie State?: the Case Persistent of from (1989); n. Rptr. Appellant’s at 16 Hastings Center Brief a continued arbiters of comatose proach as the by providing any I not existence, which believe flawed phrase. This lack scope meaning and of insight as to the has society in a which under- uncertainty breeds guidance knit family a concentric metamorphosis tightly a from gone (which decision-making) all levels of familial unit interacted at by an plagued unprecedented to one of distended families divorce rate.
Moreover, family unit has contribut- the deterioration homes, single-parent of a patchwork ed the creation establishing a envi- marriages, step-parent second third and bonding non-blood straining family among ronment and by re-marriage by brought together relatives alienated spectra scenarios raise who varying divorce. Such in Does a Fiore-type step- situation: precedence takes or sibling spouse life or death of parent’s concerning decision parent spouse? natural or precede the wishes of a divorced deceased, are do the wishes of a both natural parents Where uncle, aunt, priority take sibling, grandparent cousin and/or irreversibly member is comatose? Is patient/family where the it to in factor or is be looked at to be sole sanguinity re-marriage other bonding by lineage with combination deciding hierarchy decision-making? in Should factors in this life- deciding partner(s) have a voice in their physicians process? death which surface and light multiplicity scenarios piece-meal approach, by Majority’s
remain unanswered inevitably by the require resolution of which will intervention Majority’s non-court-involve- courts and is at odds "with application I embrace its of a formula position, ment cannot best disingenuous which is and death situation wake. There- uncertainty stability creates more than its fore, concern this most engendered maelstrom of warrants, my opinion, impartial sensitive of issues hand and doctors alike family-member of the courts to assure that benefltting are interests aimed at motivated condition, and not some expedí- particular his/her *51 672 interest. The patient’s far from the
ent measure removed objective. achieves that supra of factors set forth checklist on this issue advances Majority’s posturing Since the involvement, my view of court approach alternate at odds with Majority’s holding that of the portion I dissent to respectfully the contrary.24 to
CAVANAUGH, Judge, dissenting. mother, Fiori and his Joseph of Daniel tragic plight com- Sherman, challenge which presents Rosemarie issues are confounded because judicial process. of the We petence law, and theolo- metaphysics where presented the issue is one intersect, thus, overtaxing poor powers provide our gy solution. proper dispositions I the sensitive and reasoned
While
esteem
myself
agreement
I find
colleagues,
learned
espoused by my
Attorney
Pennsylvania
General of
position
with the
of the
coincides with his.
position
which
adopt
would
I
find that
the court erred
say
is to
that would
Which
Fiori, who, after
ad litem for Mr.
guardian
failing
appoint
all,
subject
as the
matter
continued human existence
has his
case,
one
not overlook the benefits
Albeit not evident in this
policy
beneficiary
flowing
patient’s
under a
insurance
to a comatose
family
is the "close
member”
the heir to a
estate
or whether
input
life-support measures should be discontin-
providing
into whether
case,
be
undercurrent of self-interest must
ued.
If such be the
judicial light
evaluate its
brought
under a
to the fore and scrutinized
implicit approval
extinguishing
Anything
genuineness.
less would
legitimacy
judicial concern or intervention
assure
a life without
of the motives.
advance the
upon
proffered
this writer would
Reliance
the criteria
family
allow the motive of the "close
interests of the
best
impairing
of the issue.
be examined without
resolution
member” to
Pa.Super.
Terwilliger,
450
than In re
One need look no farther
(1982) (tubal
mentally incompetent)
ligation
to confirm
A.2d 1376
serving
court-supervised
the best interests of
such
intervention
fact,
promulgation
Terwilliger guidelines,
patient.
since the
Court,
only
appealed
once to this
adherence to its directions has been
feasibility
looking
courts for a
to the
to the
which is silent testament
authorizing
privacy.
invasion of one’s
of factors in advance of
checklist
(en
C.W.,
(1994)
Pa.Super.
v. Waters, M. Michael J. and Aimee BRANDYWINE HOSPITAL Representa Margolies, Margolies, Price Personal and Richard Margolies, M.D. M. Price M. Price and tives of Estate of Margolies Associates, Appellees, EDWARDS, Appellee,
Charles Waters, J. M. Michael Aimee BRANDYWINE HOSPITAL Margolies, Representa Margolies, Personal Richard Price Margolies, M.D. M. Price M. Price tives of the Estate of Associates, Margolies Brandywine Hospital.
Appeal of Pennsylvania. Superior Court Argued Dec. 1994.
Filed Jan.