Woods v. Com

• Decision Date: 26 August 2004
• Docket Number: No. 1999-SC-0773-DG.,1999-SC-0773-DG.
• Citation: 142 S.W.3d 24
• Parties: Matthew WOODS, Deceased, by and through His Guardian ad Litem, T. Bruce Simpson, Jr., Appellant, v. COMMONWEALTH OF KENTUCKY, Cabinet for Human Resources (Now Cabinet for Families and Children), Appellee.
• Court: United States State Supreme Court — District of Kentucky

142 S.W.3d 24

Matthew WOODS, Deceased, by and through His Guardian ad Litem, T. Bruce Simpson, Jr., Appellant, v. COMMONWEALTH OF KENTUCKY, Cabinet for Human Resources (Now Cabinet for Families and Children), Appellee.

No. 1999-SC-0773-DG.

Supreme Court of Kentucky.

August 26, 2004.

Appeal from the District Court, Fayette County.

T. Bruce Simpson, Jr., Anggelis, Gordon, Simpson & Roberts, Lexington, Counsel for Appellant.

G. Thomas Mercer, Office of the Counsel, Cabinet for Families and Children, Sherri D. Pate, Cabinet for Human Resources, General Counsel, Frankfort, Counsel for Appellee.

Richard N. Bush, George S. Schuhmann, Louisville, Counsel for Amicus Curiae Council for Retarded Citizens, Inc.

Robert C. Cetrulo, Northern Kentucky Right to Life, Covington, Edward L. White, III, Thomas More Center for Law & Justice, Ann Arbor, MI, Counsel for Amicus Curiae Thomas More Center for Law & Justice.

Melissa J. Bowman, Kenneth W. Zeller, Protection and Advocacy, Frankfort, Counsel for Amicus Curiae Protection and Advocacy Division of the Kentucky Department of Public Advocacy.

Francis J. Manion, American Center for Law and Justice—Midwest, New Hope, Counsel for Amicus Curiae Catholics United for Life.

COOPER, Justice.

This appeal challenges the constitutionality of KRS 311.631, a provision of the Kentucky Living Will Directive Act, insofar as it permits a judicially-appointed guardian or other designated surrogate to authorize the withholding or withdrawal of artificial life-prolonging treatment from a ward or patient who is either in a persistent vegetative state or permanently unconscious. If the statute is constitutional, the issue becomes how to implement it.

Matthew Woods was born on November 24, 1941; he died during the course of these proceedings on June 2, 1996. His intelligence quotient (I.Q.) was between 70 and 71 and, by judicial appointment, various state agencies had managed his affairs since May 12, 1970. On January 28, 1991, pursuant to a jury's verdict that he was partially disabled, KRS 387.570; KRS 387.580, the Fayette District Court appointed an agent of the Cabinet for Human Resources ("CHR") as Woods's limited guardian with authority to make certain decisions for him, including consent to medical procedures. Woods lived in a state-approved group home, attended church, had a girlfriend, participated regularly in day-treatment programs, and was able to travel across town by bus to visit friends. He was treated for asthma by doctors at the University of Kentucky Medical Center.

On April 18, 1995, Woods suffered cardiopulmonary arrest while being transported by a friend to the Medical Center for treatment of a severe asthma attack. His friend detoured to the nearest hospital, St. Joseph Hospital, where medical personnel resuscitated Woods and connected him to a mechanical ventilator. Efforts to further revive him failed and he never regained consciousness. An electroencephalogram (EEG) examination revealed severe global encephalopathy, which his doctors agreed was caused by hypoxia, i.e., oxygen deprivation that occurred between the cardiopulmonary arrest and the resuscitation. His treating physician, Dr. Jeremiah Suhl, and a consulting neurologist, Dr. William C. Robertson, agreed that Woods had suffered total and irreversible cessation of all normal brain functions. He responded to neither voice nor pain stimuli. He was unable to breathe or swallow. A tracheostomy was performed to permanently attach a mechanical ventilator that pumped oxygen into his lungs. At first, nutrition and hydration were provided through nasal feeding tubes. Later, a gastrostomy was performed so that nutrition and hydration could be mechanically pumped directly into his small intestines. Nevertheless, Woods was not dead as defined in KRS 446.400 because short bursts of electrical activity still emanated from his brain stem. These impulses caused severe myoclonus, a condition manifested by violent muscle spasms that were controlled only by a paralyzing drug. According to Dr. Robertson, there is no recorded case of a patient with myoclonus regaining consciousness absent some improvement within the first twenty-four to forty-eight hours. Woods's condition did not improve. He remained in a state of permanent unconsciousness,¹ a condition more severe than a persistent vegetative state,² in mors interruptus, suspended by "merger of body and machine"³ in a Limbo somewhere between cognizant life and legal death.⁴

Dr. Suhl estimated that Woods's biological functions could be maintained for one to two years on ventilation, and possibly up to ten years, but that if the ventilator were removed, death would occur in less than forty-eight hours. Drs. Suhl and Robertson both recommended withdrawing artificial ventilation so that the mechanically interrupted natural process of dying could conclude. They did not recommend withdrawal of the artificially administered nutrition and hydration until after death occurred.⁵ After a two-hour meeting with Dr. Suhl and CHR, the eleven members (including four physicians) of the St. Joseph Hospital ethics committee unanimously agreed with the recommendation.⁶ CHR filed a motion in the Fayette District Court seeking judicial approval of the recommendation. The district court appointed a guardian ad litem for Woods, held a hearing, and accepted briefs on the issue. St. Joseph Hospital filed an amicus brief supporting the motion. During the course of these proceedings, Woods was transferred to Vencor Hospital in Louisville where Dr. Arthur T. Hurst, Jr. assumed responsibility for his treatment. Dr. Hurst agreed with the diagnosis and prognosis reached by Drs. Suhl and Robertson and strongly agreed with the recommendation to terminate Woods's life-prolonging treatment: "I regard continuing such heroic measures as a violation of the Hippocratic Oath and in abdication of the Judeo-Christian ethic by which I was raised. Frankly, I do not see much difference between what we are doing here and some of the atrocities that we read about in Bosnia."⁷

On September 21, 1995, the district court entered an opinion and order holding that KRS 311.631 authorizes a judicially-appointed guardian of an adult patient who lacks decisional capacity and has not made an "advance directive," to make health care decisions on behalf of the patient, including withdrawal of artificial life-support systems, without obtaining advance judicial approval, so long as the guardian acts in good faith and in the best interest of the patient.

The guardian ad litem appealed to the Fayette Circuit Court, asserting that KRS 311.631 is unconstitutional or, if constitutional, the judicially-appointed guardian must prove by clear and convincing evidence that withdrawing artificial life support is in the patient's best interests; and that the statute violates public policy and modern ethical standards. Woods died of natural causes on June 2, 1996, before the circuit court could rule on the appeal; accordingly, the circuit court dismissed it as moot. The Court of Appeals reversed and remanded, citing an exception to the mootness doctrine, applicable when the underlying dispute is "`capable of repetition, yet evading review."' Lexington Herald-Leader Co. v. Meigs, Ky., 660 S.W.2d 658, 661 (1983) (quoting Neb. Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976)); see also Commonwealth v. Hughes, Ky., 873 S.W.2d 828, 830 (1994).

On remand, the Fayette Circuit Court entered a comprehensive opinion holding that KRS 311.631 is constitutional and does not require proof of the patient's best interest by clear and convincing evidence; that withdrawal of artificial life support systems from a permanently unconscious patient does not violate public policy or modern ethical standards if the decision is made in good faith and is in the ward's best interest; and that there is no need to obtain prior judicial approval of a decision to do so absent a dispute among interested parties as to the soundness of the decision.⁸ The Court of Appeals granted discretionary review and affirmed. We also granted discretionary review and affirm the holdings of the lower courts except as to the standard of proof. In that respect, we hold that the withdrawal of artificial life support from a patient is prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawing life support is in the patient's best interest.

We do not write on a clean slate. Since the Supreme Court of New Jersey's seminal decision in In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), many state courts, including this Court, DeGrella by Parrent v. Elston, Ky., 858 S.W.2d 698 (1993), as well as the United States Supreme Court, Cruzan, supra note 3, have addressed various issues relating to the right of a terminally ill patient to refuse unwanted life-prolonging treatment.⁹ Because the guardian ad litem asserts that DeGrella precludes the result we reach in this case, we first examine the context in which DeGrella was decided.

I. COMMON LAW BACKGROUND.

As in DeGrella, supra, Woods's guardian ad litem does not question the right of a competent person to forego medical treatment by either refusal or withdrawal. Id. at 703 (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), superseded by rule on other grounds as stated by Privee v. Burns, 46 Conn.Supp. 301 749 A.2d 689, 695-96 (1999); and Schloendorff v. Soc'y of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914), abrogated on other grounds by Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3, 9 (1957), and superseded by statute on other grounds as stated by Retkwa v. Orentreich, 154 Misc.2d 164, 584 N.Y.S.2d 710 (1992)). That right derives from the common law rights of self-determination and informed consent, DeGrella, 858 S.W.2d at 709; see also Cruzan, 497 U.S. at 270...