486 A.2d 1209 (N.J. 1985), Matter of Conroy

Citation:486 A.2d 1209, 98 N.J. 321
Opinion Judge:[19] Schreiber
Party Name:In the Matter of Claire C. CONROY.
Attorney:[7] William I. Strasser argued the cause for appellant, Thomas C. Whittemore, Guardian of Claire C. Conroy (Donohue, Donohue, Costenbader & Strasser, attorneys).
Case Date:January 17, 1985
Court:Supreme Court of New Jersey
 
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486 A.2d 1209 (N.J. 1985)

98 N.J. 321

In the Matter of Claire C. CONROY.

Supreme Court of New Jersey.

January 17, 1985

Argued March 19, 1984.

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[98 N.J. 334] William I. Strasser, Nutley, for appellant, Thomas C. Whittemore, Guardian of Claire C. Conroy (Donohue, Donohue, Costenbader & Strasser, Nutley, attorneys).

John J. DeLaney, Jr., Roseland, pro se as respondent Guardian ad Litem for Claire C. Conroy (John J. DeLaney, Jr., Roseland, attorney; Young, Rose & Millspaugh, Roseland, of counsel).

Joseph H. Rodriguez, Public Advocate, pro se as intervenor-respondent (Joseph H. Rodriguez, Public Defender, attorney; Herbert D. Hinkle, Deputy Public Advocate and Linda J. Robinson, Asst. Deputy Public Advocate, on briefs).

Mary K. Brennan, Gen. Counsel, Princeton for amicus curiae New Jersey Hospital Association (Mary K. Brennan, Princeton and Sterns, Herbert & Weinroth, Trenton, attorneys; Frank J. Petrino and Richard M. Hluchan, Trenton, of counsel).

Amelia H. Boss, Camden, submitted a brief on behalf of amici curiae former Commissioners and professional staff members of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. [98 N.J. 335]

Diane K. Smith, East Orange, and Toby S. Edelman, Washington, D.C., member of the District of Columbia bar, submitted briefs on behalf of amicus curiae National Citizens' Coalition for Nursing Home Reform (Patrick N. Budd, Director, Legal Aid

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Society of Mercer County, Trenton, attorney).

Stephen J. Foley, Asbury Park, submitted briefs on behalf of amici curiae John R. Connery, S.J., William E. May, William Smith, Benedict Ashley, O.P., the Student Ad Hoc Committee Against the War in Vietnam and the New Jersey Concerned Taxpayers (Campbell, Foley, Lee, Murphy & Cernigliaro, Asbury Park, attorneys).

Charles C. Deubel, III, South Orange, submitted a brief on behalf of amicus curiae The American Geriatrics Society (Deubel & Deubel, South Orange, attorneys).

Elmer M. Matthews, Newark, submitted a brief on behalf of amicus curiae New Jersey Catholic Conference.

Richard P. Maggi, Millburn, and Edward R. Grant, Philadelphia, Pa., a member of the Pennsylvania bar, submitted a brief on behalf of amicus curiae New Jersey Right to Life Committee, Inc. (McDermott, McGee & Ruprecht, Millburn, attorneys).

John E. Runnells, III SUMMIT, submitted briefs on behalf of amicus curiae Concern for Dying.

The opinion of the Court was delivered by

SCHREIBER, J.

At issue here are the circumstances under which life-sustaining treatment may be withheld or withdrawn from incompetent, institutionalized, elderly patients with severe and permanent mental and physical impairments and a limited life expectancy.

Plaintiff, Thomas C. Whittemore, nephew and guardian of Claire Conroy, an incompetent, sought permission to remove a nasogastric feeding tube, the primary conduit for nutrients, from his ward, an eighty-four-year-old bedridden woman with serious and irreversible physical and mental impairments who resided in a nursing home. John J. Delaney, Jr., Conroy's guardian ad litem, opposed the guardian's petition. The trial [98 N.J. 336] court granted the guardian permission to remove the tube, and the Appellate Division reversed.

I

In 1979 Claire Conroy, who was suffering from an organic brain syndrome that manifested itself in her exhibiting periodic confusion, was adjudicated an incompetent, and plaintiff, her nephew, was appointed her guardian. The guardian had Ms. Conroy placed in the Parkview Nursing Home, a small nursing facility with thirty beds. There she came under the care of Dr. Kazemi, a family practitioner, and Catherine Rittel, a registered nurse, who was the nursing home administrator. Upon her admission, Ms. Conroy, although confused, could converse and follow directions, was ambulatory, and was in relatively good physical condition. Thereafter, she became increasingly confused, disoriented, and physically dependent.

Ms. Conroy was hospitalized on two occasions at Clara Maas Hospital, once between July 23, 1979 and August 8, 1979, for dehydration and a urinary tract infection, and later between July 21, 1982 and November 17, 1982, for an elevated temperature and dehydration. During the latter hospitalization the diagnostic evaluation showed that Ms. Conroy had necrotic gangrenous ulcers on her left foot. Two orthopedic surgeons recommended that to save her life, her leg should be amputated. However, her nephew refused to consent to the surgery because he was confident that she would not have wanted it. Contrary to the doctors' prognosis, Ms. Conroy did not die from the gangrene.

During this second hospitalization, Dr. Kazemi observed that Ms. Conroy was not eating adequately, and therefore, on July 23, he inserted a nasogastric tube that extended from her nose through her esophagus to her stomach. Medicines and food were then given to her through this tube. On October 18, the tube was removed, and Ms. Conroy was fed by hand through her mouth for two weeks. However, she was unable to eat a [98 N.J. 337] sufficient amount in this manner, and the tube was reinserted on November 3.

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When Ms. Conroy was discharged from the hospital to the nursing home on November 17, 1982, the tube was left in place. It continued to be used for the same purposes thereafter. A second attempt to feed Ms. Conroy through her mouth about January, 1983 failed because Ms. Conroy was incapable of swallowing sufficient amounts of nutrients and water. According to the testimony of Dr. Kazemi, Ms. Conroy had such difficulty swallowing that even a person with great time and patience could probably not have coaxed her into absorbing enough fluids and solid food by mouth to sustain herself.

At the time of trial, Ms. Conroy was no longer ambulatory and was confined to bed, unable to move from a semi-fetal position. She suffered from arteriosclerotic heart disease, hypertension, and diabetes mellitus; her left leg was gangrenous to her knee; she had several necrotic decubitus ulcers (bed sores) on her left foot, leg, and hip; an eye problem required irrigation; she had a urinary catheter in place and could not control her bowels; she could not speak; and her ability to swallow was very limited. On the other hand, she interacted with her environment in some limited ways: she could move her head, neck, hands, and arms to a minor extent; she was able to scratch herself, and had pulled at her bandages, tube, and catheter; she moaned occasionally when moved or fed through the tube, or when her bandages were changed; her eyes sometimes followed individuals in the room; her facial expressions were different when she was awake from when she was asleep; and she smiled on occasion when her hair was combed, or when she received a comforting rub.

Dr. Kazemi and Dr. Davidoff, a specialist in internal medicine who observed Ms. Conroy before testifying as an expert on behalf of the guardian, testified that Ms. Conroy was not brain dead, comatose, or in a chronic vegetative state. They stated, however, that her intellectual capacity was very limited, and [98 N.J. 338] that her mental condition probably would never improve. Dr. Davidoff characterized her as awake, but said that she was severely demented, was unable to respond to verbal stimuli, and, as far as he could tell, had no higher functioning or consciousness. Dr. Kazemi, in contrast, said that although she was confused and unaware, "she responds somehow."

The medical testimony was inconclusive as to whether, or to what extent, Ms. Conroy was capable of experiencing pain. Dr. Kazemi thought that Ms. Conroy might have experienced some degree of pain from her severely contracted limbs, or that the contractures were a reaction to pain, but that she did not necessarily suffer pain from the sores on her legs. According to Dr. Davidoff, it was unclear whether Ms. Conroy's feeding tube caused her pain, and it was "an open question whether she [felt] pain" at all; however, it was possible that she was experiencing a great deal of pain. Dr. Davidoff further testified that she responded to noxious or painful stimuli by moaning. The trial court determined that the testimony of a neurologist who had examined Ms. Conroy would not be necessary, since it believed that it had sufficient evidence about her medical condition on which to base a decision.

Both doctors testified that if the nasogastric tube were removed, Ms. Conroy would die of dehydration in about a week. Dr. Davidoff believed that the resulting thirst could be painful but that Ms. Conroy would become unconscious long before she died. Dr. Kazemi concurred that such a death would be painful.

Dr. Kazemi stated that he did not think it would be acceptable medical practice to remove the tube and that he was in favor of keeping it in place. As he put it, "she's a human being and I guess she has a right to live if it's possible." Ms. Rittel, the nurse, also thought the tube should not be removed since in her view it was not an extraordinary treatment. The nursing home had taken no position on the subject. [98 N.J. 339]

Dr. Davidoff said that if he had been the treating physician and the case had not

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come to court, he would have removed the tube with the family's consent. In his opinion, although Ms. Conroy seemed to be receiving excellent care, she did not have long to live, perhaps a few months. In those circumstances, he considered nasogastric feeding an extraordinary, or optional, medical treatment, because it went ...

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