*1 Phila., al. Eichert, City for et Philadelphia, F. Michael 2/5/96). (as of Jordan, City et al. Philadelphia, James B. DiPietrae, et al. Lemer, for P. Philadelphia, Benjamin Brennan, for P. Philadelphia, J. Sugarman, William Robert DiPietrae. Comm, Kohart, for Amicus of Seven- Philadelphia,
Mary E. ty- FLAHERTY, ZAPPALA, NIX, C.J., CAPPY
Before CASTILLE, JJ.
ORDER PER CURIAM. affirmed.
Order JJ., in the NEWMAN, participate did not NIGRO and decision of this case. consideration or
Robert B. for Rose- marie Sherman. Wankmiller, Philadelphia,
James J. for Geriatric & Medical Services. FLAHERTY, ZAPPALA, CAPPY, NIX, C.J.,
Before MONTEMURO, CASTILLE and JJ. THE
OPINION OF COURT CAPPY, Justice:
This an appeal by opinion allowance from the and order the Superior affirming judgment Court entered Court of Common Pleas of Bucks County, Orphans Court a granted appeal Division. We allowance of to decide whether relative, physicians close with the consent of two but without involvement, may sustaining court remove life from persistent vegetative an adult relative who is a state where following that adult has left no advance directives. For the reasons, we affirm. presented,
As with all cases where this issue is the facts Fiori, tragic. Joseph subject here are Daniel the nominal appeal, injuries this suffered head in 1972 when he was severe approximately twenty years regained old. He consciousness after this injury, cognitive severely but his abilities were 1976, injury limited. Fiori suffered a second head while (‘VA”). being hospital treated at a Veterans Administration Fiori regained injury, never consciousness after this second diagnosed being vegetative and he was as in a state persistent (“PVS”). The “vegetative term state” describes: body functioning entirely which is terms of its internal
controls. It maintains It maintains heart temperature. It maintains pulmonary digestive beat ventilation. activity. activity It maintains reflex of muscles and nerves responses. for low level conditioned But there is no behav- ioral evidence of either self-awareness or awareness of the surroundings in a learned manner. Director, Health, v. Dept.
Cruzan Missouri 497 U.S. (1990) 2841, 2846, n. 110 S.Ct. n. L.Ed.2d Jobes, 394, 403, 529 A.2d (citing In re 108 N.J. (1987)).1 zone of “twilight has described as a This state been *6 life, in where death commences while suspended animation Fleming, v. by continues.” Rasmussen Mitchell form, some (1987). 674, 207, 211, P.2d 678 154 Ariz. 741 condition, functions were cognitive In this all Fiori’s brain or and he was unable pain pleasure, He felt no inoperative. for capacity Fiori had no communicate with others. Since movements, main- his life functions were voluntary muscular medications, fluids, nutrition of and by provision tained tube, insert- surgically a a tube which through gastrostomy no of Fiori ever recover- hope stomach.2 There was ed ing. accident, mother, his Rosemarie Sher-
After Fiori’s second man, by of his court order guardian person was appointed England published in The New Journal Medicine 1. A recent article of vegetative persistent permanent a between introduced distinction wakeful unconscious state that lasts ‘‘[a] The article stated that states. persistent vegetative longer state____ weeks is referred to as a than a few state, hand, means an permanent vegetative on the other A state____” PVS, Multi-Society on Medical As Task Force irreversible (Pts. 2), Vegetative Eng.J.Med. pects State 1 & 330 New the Persistent of (1994) prior (emphasis supplied). review of PVS Based on 1501 cases, persistent vegetative state was concluded that where a the article judged permanent brought by injury, the state can be on traumatic injury; the article noted that twelve months after the occurrence exceedingly at For a recovery twelve months is rare. Id. after state, permanent vegetative emergence from a discussion of one such Mercer, Childs, Report; Nancy Late L. M.D. & Walt N. see Brief Vegetative Post-Traumatic Improvement in Consciousness State After , (1996). Eng.J.Med. New 24 article, predated thus the diagnosis condition this The of Fiori’s diagnosis "permanent vegetative was not available to the state” Fiori, vegeta- a attending physicians. We realize that who had been in death, approximately years prior to his would tive state for nineteen vegetative having permanent probably diagnosed as been in a now be state; improper a may, highly be for be that as it we find that it would Thus, to Fiori’s “re-diagnose” we will continue to refer court to Fiori. having persistent vegetative state. as been a condition by the hydration are viewed as treatment 2. Artificial and nutrition See, e.g., by jurisdictions. In re community and courts of other medical Grant, 372-373, (1985); Conroy, A.2d In re 98 N.J. 545, 559-562, (1987). 747 P.2d 452-454 109 Wash.2d requested February in 1980. Sherman entered Center, nursing which was the home Mayo Nursing Fiori, nursing gastrostomy his tube. caring remove request her without a court comply with home refused order; the Court Common petition thus filed Sherman requesting directing an order County Pleas for Bucks Attorney treatment. The General nursing home to terminate and, request, to his an proceedings pursuant in the appeared expert appointed. was independent medical neurologists, of two one retained Sherman opinions expert, were appointed independent and the other the court that within a reasonable agreed entered into evidence. Both Fiori’s condition would not im- certainty, of medical degree in a as he had done for the prove and he would remain *7 existing that medical years. They last seventeen also stated to Fiori’s life functions so technology support could continue twenty years. for another ten to span that his life could extend to spoken that her son had never her Sherman testified into a lapse his wishes should he ever PVS. Neverthe- about less, life,” of on her son’s “love of Sherman was based gastrostomy that son would wish the tube to be opinion her removed. motion, granted Attorney
The trial court Sherman’s and the appealed. General banc, en Court, court Superior sitting
The affirmed. The sustaining that decision to remove life treat- determined ment from an adult in a who did not leave directions as to support may by family of life be made a close maintenance physicians approval. and two without court qualified member Attorney petition The General filed a for allowance 28, Prior to of allow- January granting on appeal nursing oppose support life 3. The home did not the discontinuation of determination, opinion expressed It no as to the ultimate but for Fiori. approval any merely a to obtain court action. rather indicated desire Letter, Mayo Nursing February See Center 1992. R. at 9a. pneumonia.4
anee of
Fiori died of
appeal,
appeal,
procedures
In this
we must determine
a
guidelines
sustaining
for removal of life
from PVS
prior to his
failed to
patient,
incompetency,
where the
Specifically,
his desires on such treatment.
we must
express
may
patient,
determine who
make the decision for the PVS
employ,
what standard the decision-maker should
and whether
the court must
that decision.
approve
starting point
analysis
for our
is an examination
right
protect
right
we are to
to self-determination
—the
rejection
in regard
acceptance
sustaining
to the
or
of life
Although
medical treatment.
some courts have noted consti
tutional
to
right5,
bases
such
we choose
follow the
example
solely
set
the courts which have relied
on the
self-determination,
to
right
common-law basis for the
and have
analysis
upon
principles.
eschewed an
based
constitutional
See,
33, 44-45,
e.g.,
Longeway,
In re Estate
133 Ill.2d
Mack,
(1989);
Ill.Dec.
549 N.E.2d
Mack v.
(1992).
329 Md.
A.2d 744
to
this
We chose
follow
it
us to
example as
allows
adhere
the sound tenet of
jurisprudence
that courts should avoid constitutional
issues
upon
grounds..
when the issue at hand
be decided
other
Court,
549, 568-569,
v.
Army Municipal
Rescue
331 U.S.
(1947).6
1409, 1419-1420,
S.Ct.
601
law, than
the common
by
sacred,
carefully guarded,
more
or is
control of
and
possession
to the
every
of
individual
right
”
Botsford,
Railway Co. v.
Union
person....
his own
Pacific
(1891).
1001,
1000,
This treatment must be balanced to abstain from medical patient most four state interests interests of the state. The against 1) of third protection the courts are: commonly recognized 3) 2) suicide; of the ethical prevention protection parties; 4) community; preservation of the medical integrity v. Belchertown State School Saikew Superintendent life. (1977); 740-741, see icz, N.E.2d 425 Mass. 321, 348-349, A.2d N.J. Conroy, also In re (1985). third protecting the state’s interest examining has is on whether focus
parties,
primary
financially
emotionally
would
left
who
be
dependents
See, e.g.,
medical treatment.
to refuse
bereft were
Saikewicz,
(1987);
Farrell,
335,
Lastly, we focus on the state’s
in preserving
interest
interests,
life.
these four
Of
this one is
significant.
the most
Rasmussen,
Having determined that a patient’s right outweighs any self-determination interests the state have in maintaining sustaining life patient, we must examine how that right may be exercised. Where a PVS incapaci- prior written directives created advance *10 for the provide which tation, statutory provisions have we Di- Advance See wishes. patient’s of the implementation (“Act”). seq. § et Act, 5401 20 Pa.C.S. for Health Care rective where no advance situation Yet, not address the the Act does as to treatment.7 were left directives subject, not on the does exist a statute
Where to authorization theories on which legal there are various approach The predicated. be support may life terminate states8, Superior the by of our sister by many taken to exercise family member below, to allow a close is Court exercising patient. of the judgment” on behalf “substituted maker: decision surrogate the judgment,” “substituted guidance. system value personal the patient’s considers prior statements patient’s the surrogate considers the issues, the facets of all to medical about and reactions with— is familiar surrogate that the personality patient’s or her relevant course, to his with, reference particular to order and ethical values —in theological, philosophical, the of medical what course extrapolate would choose. (footnote omitted). 414-415, at 444
Jobes,
529 A.2d
108 N.J. at
to ensure
“is intended
approach
judgment
The substituted
much as
as
maker effectuates
surrogate decision
that
the
make
patient would
incompetent
that the
the decision
possible
A.2d
444.
at
529
at
Id.
competent.”
if he or she were
thoughts con-
expressed
not
individual has
Even where the
can
treatment,
preferences
patient’s
life-sustaining
cerning
Fiori’s does not
such as
the Act to address situations
7. The failure of
right
refuse medi-
exercising their
preclude
patients from
these PVS
stating that the Act
legislature
meticulous in
was
cal treatment.
responsibilities not
any existing rights or
"impair
supersede
or
does not
Furthermore,
§
the Act
chapter.”
20 Pa.C.S.
5412.
addressed in this
of a declaration
specifically
“[t]he
that
absence
declared
patient to
intent of the
give
any presumption as to the
rise to
shall not
continuation,
initiation,
termination of
or
consent
to or to refuse
Thus,
5407(b).
position
§
life-sustaining treatment.”
20 Pa.C.S.
right
explicitly
Fiori’s
to refuse
condone
the Act does not
that since
it,
treatment,
patently
erroneous.
then it must forbid
medical
Jobes,
Mack,
See,
supra.
e.g.,
supra;
still be
by referring
ascertained
to all
aspects
of his or
personality.
her
49-50,
See Estate
Longeway,
The minority of states requires that
there be “clear
convincing”
patient’s
evidence
intent
to withdraw
support.9
life
This is
stringent
the most
approach. This
requires “[n]othing
standard
unequivocal
less than
proof’ of
patient’s
express wishes as to the
decision
terminate life
support is at issue.
In re Westchester County Medical Center
(O’Connor),
886, 891,
72 N.Y.2d
534 N.Y.S.2d
531 N.E.2d
(1988).
Harmon,
See also Cruzan v.
The Attorney argues General that the clear and convincing evidence standard should be used. To support argument, this he notes that the guardianship statutes employ the clear and convincing evidence standard for the resolution of certain issues;10 thus, since this standard is to applicable some deter- statute, minations via the guardianship it perforce then applies to this decision. disagree. We guardianship statutes simply do not address a situation such us, as we have before 9. We note convincing that the term "clear and evidence” in this context requirement refers to the question that the individual in must have explicit stated in an fashion the exact treatment desired were the lapse to into various medical conditions. The term "clear and convincing however, evidence” commonly, is used more as a burden of context, proof. In that the quantum standard refers to that of evidence necessary party point. for a to establish a For further illumination on Comment, Die, generally the Right distinction see to 96 Dick.L.Rev. 649, 651 and 665-669. example, convincing For clear and required evidence is for determi- incapacity appointment nations guardian. and of a 20 Pa.C.S. 5511(a) (f). §§ and convincing not that and evidence and we do find the clear thus is mandated here. standard
Furthermore, convincing we the clear and evidence test find restrictive, the one would thwart PVS overly to be which to to be received. right determine the medical care patient’s patients all those who did not applied, this test to be Were express clearly to prescience sophistication have or the the precise on this matter would unmistakably their wishes those individu- support to have life removed. For not be able not an als, concerning medical treatment would be the choice Rather, extrapolation upon their individual beliefs. based far the fron- simply upon be how dependent “choice” would if sustaining life of medical science had advanced: tiers available, they automatically admin- were would be procedures This we cannot tolerate. istered.
Thus,
Superior
with the
Court below
agree
we
proper ap
judgment
standard is the
the substituted
has not left
that where a PVS
proach. We believe
treatment,
sustaining
to
of life
instructions as
the maintenance
of the
prevent
to
the destruction
PVS
only practical way
to
to
medical
allow
patient’s right
refuse
what measures
substitute decision maker
determine
light
patient’s
patient would have desired
Jobes,
A.2d at 444.11
Accord
108 N.J. at
prognosis.
judgment
and clear
11. We also note that in addition
the substituted
standards,
adopted a
convincing
some courts have also
evidence
Rasmussen,
See,
analysis.
e.g.,
known as
"best interests”
standard
*12
analysis
a
at
This
allows
decision
We close member is well-suited to see, the of substitute decision maker. e.g., Colyer, role Accord 745-746; 99 at 660 P.2d at v. Foody Wash.2d Manchester Hospital, Conn.Supp. (1984); Memorial 40 A.2d 713 482 Jobes, 415-4117, N.J. at family A.2d at 445. Close usually knowledgeable members are the most about the pa- values; tient’s an preferences, goals, they have under- standing personality apart nuances of our that us as set Jobes, individuals. President’s at also Commission 128. See 445. to greater N.J. at A.2d at addition views, personal knowledge patient’s family PVS close have a with special members bond “Our patient. PVS family informs us experience that members most generally are Jobes, with the a patient.” concerned welfare of at N.J. at 529 A.2d Furthermore, concomitant with the substitute deci sion patient’s right maker’s exercise of the to refuse treatment, the surrogate must also obtain written statements qualified two doctors to eváluate the patient’s condition. certify These statements must that the patient has been diagnosed being permanent vegetative as a If state.12 an attending has that physician, physician shall also Jobes, prepare a statement. See also supra. bar,
In the at neurologists opinions case the two on whose Fiori at presented were the trial court concurred Fiori’s judgment, improper employ via substituted be would instead it Thus, objective best interests standard to make that decision. in cases Fiori's, adult, such of a competent as where a relative once now in a state, permanent vegetative judgment, effectuate can a substituted a analysis may employed. best interests not be however, recognize, We that there will be where situations there is simply judgment. no example basis effectuate a substituted An infant, developed this situation is where the is an and thus never personal a ethical code on life. or views We are here not confronted circumstance, with such a and are loathe to determine now whether we adopt
will the best types interests standard for those of situations. Thus, day jurisdiction we leave another the issue of whether this will adopt the best interests standard where there is basis to make no judgment. substituted permanent persistent vegetative 12. For the distinction between state, 1, supra. see n. *13 of her son knowledge Drawing on her irreversible. was on her that based Sherman testified competent, was when he ethics, would no son her personal and his love of life son’s The in condition. present alive his kept to be longer wish and Sherman’s evidence that the medical held Superior Court to terminate decision support to her were sufficient testimony son; no fault with the we find for her sustaining measures life court’s determination. lower role the review is what final for our question as Fiori’s arise. We when situations such play will
judiciary family close member and the physicians that where the believe “interested no between dispute and there is agreement, in are Accord for court involvement. there is no need parties,”13 Jobes, at 746; 108 N.J. 660 P.2d at at Colyer, Wash.2d Rasmussen, P.2d at 449; Ariz. at 529 A.2d at con decisions court’s involvement “substantive 691. The resolving should be limited cerning medical treatment concur in the parties ... ... all affected disputes Where treatment, approval the court plan of medical proposed necessary nor is neither of medical treatment proposed plan Rasmussen, at 691. at 741 P.2d 154 Ariz. required.” of the decision approval Attorney argues General function, and judicial life-support uniquely is a to terminate a court. our role as We abandoning that we would be below, the opinion stated in her disagree. Judge As Beck play: has no role to judiciary and able assess loving family, willing is a
where there
or her
as to his
would have decided
what
hand,
are in
treatment,
necessary medical confirmations
all
patient’s
in the
rightfully
no one
interested
omitted.)
(Citations
Those
decision.
disputes
family
court interven-
this view and who favor
disagree
who
with
to protect
for the court
every
case often cite
need
tion
philosophy
is the
Underlying this rationale
patient.
to,
include,
family
close
parties”
but is not limited
"Interested
members,
attending physicians, or the
incompetent,
guardian of the
Rasmussen, 154 Ariz.
See
facility in which the
is located.
care
223,
At
the matter sub
opinion,
the close of this
we stress that
judice
only
addresses
a very narrow issue: whether
life-
support may be terminated for a
who was once
competent, but did
express
not
desires as to medical
treat-
ment,
and who
make that
It
choice.
would be unwise for
us to speak to alternate scenarios that are not now before us.
Thus,
explicitly
we
that
holding today
note
our
applies only to
situations where the
in question
individual
was
compe-
once a
adult,
tent
state,
but is now in a permanent vegetative
competent
while
that
individual
left no advance directives
pertaining to life sustaining measures.
think it
We
wise that
“in deciding
question
a
magnitude
such
...
importance
it is the
part
[better]
wisdom not to attempt,
any general
statement,
to cover every possible phase
subject.”
Cruzan,
277-278,
(citations
For the reasons stated we affirm the decision of the Superior Court.
MONTEMURO, J., sitting by who was designation, did not in participate this decision.
ZAPPALA, J., concurring files a opinion.
ZAPPALA, Justice, concurring. join I in majority opinion except insofar as it a imposes requirement the consent of two physicians be obtained Attorney guardian General also raised the issue that a ad litem Fiori’s, appointed need be in cases such as and that the trial court erred failing appoint in legal proceedings one. As we hold that no are Fiori's, necessary clearly in cases such as then there would be no need appointment guardian for the of a ad litem. sustaining to remove life may elect a close relative before of a to conceive It is difficult from an adult. persistent who is in a of an adult a relative situation which attending physician’s not consider the would vegetative state needed, physician another or, if consult with diagnosis medical family decision. Where weighty making such before concludes that the judgment and his or her member exercises unnecessary, it is physician of another expertise advice or physicians, require qualified two unduly burdensome patient’s to evaluate attending physician, addition to condition. physicians statements two written majority requires *15 patient that the is certifying attending physician policy of There is no statement vegetative state. persistent
a obtaining necessity for the given explanation reasons or If is to ascer- purpose physicians. from three statements vegetative persistent is in fact a tain whether statement of a state, the written accomplished by that be of addition- written statements physician. The single qualified doubting con- assuage than a nothing more physicians al do infallibility diagnosis. do not assure the They science. reassurance, will he or she needs such family If the member it. require for the law to seek it. I see no reason single physician of a written statement I hold that the would where there is patient’s condition sufficient to establish the defined have parties. interested We dispute among no members, guard- family include close parties” to “interested the care attending physicians, incompetent, ian of an those I trust is located. in which the facility if dissatisfied disagreement or their concerns parties will voice any compelling reason diagnosis. the absence with the I physicians, of two additional written statements require majority’s decision. portion of the from that depart must