Conservatorship of Drabick

• Decision Date: 12 April 1988
• Docket Number: No. H002349,H002349
• Citation: 200 Cal.App.3d 185,245 Cal.Rptr. 840
• Court: California Court of Appeals Court of Appeals
• Parties: Conservatorship of the Person of William J. DRABICK, III. David DRABICK, Petitioner and Appellant, v. William J. DRABICK, III, Objector and Respondent.

Page 840

245 Cal.Rptr. 840

200 Cal.App.3d 185

Conservatorship of the Person of William J. DRABICK, III David DRABICK, Petitioner and Appellant, v. William J. DRABICK, III, Objector and Respondent.

No. H002349.

Court of Appeal, Sixth District, California.

April 12, 1988.

Review Denied July 28, 1988.

Michael Gilfix, Myra Gerson Gilfix, Gilfix Associates, Palo Alto, for petitioner and appellant.

Society for the Right to Die, Inc., Fenella Rouse, Elena N. Cohen, Staff Attys., New York City (Richard Wasserman, of counsel), Paige Wickland, Kadushin Law Offices, San Francisco, for amicus curiae on behalf of petitioner and appellant.

Frank O. Bell, Jr., Michael Pescetta, State Public Defenders, San Francisco, for objector and respondent.

I. INTRODUCTION

AGLIANO, Presiding Justice.

Petitioner David Drabick is conservator of the person of his brother William J. Drabick III, who has been comatose in a persistent vegetative state since 1983 and maintained with a nasogastric feeding tube. Citing his brother's best interests, David Drabick sought the approval of the superior court of Santa Clara County for removal of the tube. The superior court denied the petition, and the conservator appeals.

David Drabick contends that California law authorizes the conservator of an incompetent person in a vegetative state with no hope of recovery to decide, considering medical advice and the conservatee's best interests, that medical treatment in the form of artificial life support should be withdrawn and the conservatee permitted a natural death. We agree and thus reverse the superior court's decision with directions to reconsider the petition in light of the principles set forth below. Our view is in essential accord with that of all other states which have confronted the question. ¹

II. BACKGROUND

A. William Drabick

On February 5, 1983, William Drabick received a severe head injury in an automobile accident. In emergency care, physicians diagnosed and evacuated a subdural hematoma and introduced nasogastric feeding but were not able to return William to consciousness.

William is now 44 years old. He has four adult brothers: David, Thomas, Kirke, and Fredrick Drabick. His parents are deceased. He was married in November 1968, divorced in August 1969, and has no children. At the time of the automobile accident, William had lived for approximately 12 years with Jeannine Crincic Gonzalez.

William is now in a nursing home. In the five years since the accident he has remained unconscious in a persistent vegetative state, or coma. Because his electroencephalogram is not flat he is not "brain dead." Moreover, he breathes without the assistance of a respirator. For these two reasons, California law considers him to be alive. ² However, he is unconscious, his eyes remain closed, and he is not capable of voluntary movement. He does not communicate or respond to sound or physical stimulation. He does not usually respond to painful stimuli. When he does respond it is only with a nonspecific tremor. William is totally unable to care for himself or to sustain his own life. He cannot eat but is given nourishment and water through a nasogastric tube.

Three physicians have examined William. His primary physician, Dr. Klee, stated in a declaration that, "[b]ased on history to date and reasonable expectations of the future, I believe that Mr. Drabick is permanently comatose.... He has no rehabilitation potential." Two neurologists, Drs. Laster and Likosky, have also examined William and come to essentially the same conclusion. Based on all of the information available about William's medical condition, Dr. Klee does not believe that he "may again communicate and have any kind of a sentinent, thinking existence" and does not feel that there is "any realistic hope for recovery in any way." Dr. Klee has stated that she would be willing to remove or direct the removal of William's nasogastric tube if the court approves the conservator's decision.

B. The Conservatorship Proceedings

On September 26, 1985, the superior court appointed David Drabick successor conservator of the person of William, his brother. Pursuant to Probate Code section 2355, subdivision (a), the court found that William lacked capacity to give informed consent to medical treatment. Granting a specific request of the conservator, the court ordered "that cardiopulmonary resuscitation and electrical cardioversion may be withheld in the event the conservatee suffers a cardiac arrest or any similar medical emergency requiring such treatment." The court also authorized the conservator "to consent to a medical order directing that such treatment be withheld." This earlier order is not before us on appeal.

On December 30, 1985, after William had been comatose for two years and ten months, the conservator petitioned the superior court for a further order "authorizing the withholding of medical treatment to wit, the permanent removal of nasogastric tubes and the withholding of any other medical procedure or treatments utilized to deliver nutrition and hydration to a patient in the conservatee's condition." No one opposed the conservator's petition. Each of William's four adult brothers submitted a declaration expressing his belief that William "would not view his present state as a meaningful or as an acceptable existence" and "would not want to continue living in his present condition." The county public defender appointed to represent William also came to the conclusion that the petition was in his best interests. ³

Ms. Gonzales, who lived with William for the twelve years before his accident, ⁴ also filed a declaration in support of the conservator's petition. She appears to be the only person with whom William discussed his medical care preferences.

In her declaration, Ms. Gonzalez stated: "I am, without question or any possible doubt, convinced that William J. Drabick, III would not want to be kept alive in his present condition. I believe that he would want his physician to permanently remove the nasogastric tubes through which he receives nutrition and hydration. He would do this with full knowledge that such removal would result in his death. [p] I say this because of numerous and explicit conversations I had with the conservatee about this subject."

William's conversations on this subject with Ms. Gonzalez "were occasioned by two events, or circumstances." As Ms. Gonzalez explained, "[o]ne event was the death of his father, which occurred while the conservatee and I were living together. While I do not believe that he was close to his father, the conservatee was very upset about the life prolonging treatment that was given to his father, a victim of cancer of the liver. It was the conservatee's understanding that his father was supported by a variety of medication, by a nasogastric tube, and he was incapacitated. It is my recollection that he said clearly and emphatically that he would never want to be kept alive by artificial means like his father was."

The other circumstance was William's reaction to being diagnosed as having polycystic renal disease, an inherited and possibly fatal disorder which, while not curable, can be controlled somewhat by medication, diet, and avoidance of alcohol. According to Ms. Gonzalez, William "consistently chose to reject conservative, prophylactic medical advice about his diet and non-use of alcohol. He and I argued about this often, and most recently in the spring of 1982 when the disease caused him to be hospitalized.... In the course of these recurring conversations, such as in the spring of 1982, he expressed his thoughts about the use of a kidney (dialysis) machine: 'I won't be attached to a kidney machine. If I die, I die.' "

Based on her knowledge of William, Ms. Gonzalez believes that "[h]e would not view his present existence as living in any acceptable sense. He would view it as an unacceptable assault on his rights and on his dignity. He would positively prefer to die without tube feeding or any other form of life-sustaining treatment."

At a hearing on the conservator's petition, Ms. Gonzalez testified that William said, after seeing his father maintained by artificial life support systems: " 'If anything ever happens to me, I would never want to be kept alive like that.... You've got to promise me that that's what would happen.' " In response to a request to "estimate ... how many times [William] said he never wanted to be kept alive by artificial means," Ms. Gonzalez answered: "Twenty."

In addition to testimony by Ms. Gonzalez, the court also heard testimony by Dr. Klee and by David Drabick, the conservator. Dr. Klee testified as set out above, concluding that she does not believe that there is "any realistic hope for recovery in any way." David Drabick testified that he and his brothers had discussed William's condition extensively and that they all felt "that the [nasogastric] tubes should be removed and William be allowed to die." Although David Drabick and his brothers never discussed the matter with William, they all "feel, based on his lifestyle and feelings about other matters, he would prefer this."

C. The Superior Court's Decision

On July 10, 1986, the superior court denied the conservator's petition. In its opinion, the court observed that William "has been in a coma for a length of time" and that "[t]wo neurologists [have] examined the patient and concluded that the coma would probably persist." With respect to William's prognosis, the court further noted Dr. Klee's testimony "that one never really knows if this patient would recover, but since the coma lasted 3 years this might be unlikely."

To guide its decision, the court attempted to derive a standard from Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (Barber ), which dismissed homicide charges against physicians who had complied with the request of a comatose patient's family to disconnect life support systems. ⁵...