Rosebush, In re

• Decision Date: 08 September 1992
• Docket Number: Docket No. 111082
• Citation: 491 N.W.2d 633,195 Mich.App. 675
• Parties: In re Joelle ROSEBUSH, minor. Francis ROSEBUSH and Jacqueline Rosebush, Petitioners-Appellees, v. OAKLAND COUNTY PROSECUTOR, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 633

491 N.W.2d 633

195 Mich.App. 675

In re Joelle ROSEBUSH, minor.

Francis ROSEBUSH and Jacqueline Rosebush, Petitioners-Appellees, v. OAKLAND COUNTY PROSECUTOR, Respondent-Appellant.

Docket No. 111082.

Court of Appeals of Michigan.

Submitted Oct. 8, 1991, at Detroit.

Decided Sept. 8, 1992, at 9:15 a.m.

Released For Publication Nov. 19, 1992.

Vlcko, Lane, Payne & Broder, P.C. by Andrew J. Broder and Lynn Stevens Naoum, Bingham Farms, for petitioners.

Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Michael J. Modelski, Asst. Pros. Atty., for respondent.

Joseph P. Zanglin, amici curiae, Detroit, for Right to Life of Michigan, Inc.

Kerr, Russell & Weber by Richard D. Weber and Joanne Geha Swanson, amici curiae, Detroit, for Michigan State Medical Society.

Dykema Gossett by Bettye S. Elkins, Kathleen McCree Lewis, Teresa A. Brooks, and Daniel R. Shemke, amici curiae, Ann Arbor, for Michigan Hosp. Ass'n.

Jaffe, Raitt, Hever & Weiss, P.C. by Brian G. Shannon, amici curiae, Detroit, for American Academy of Neurology.

Giles R. Scofield and Fenella Rouse, New York City (Groves, Decker & Wyatt by David M. McCleary, Flint, of counsel), amici curiae, for Society for the Right to Die, Inc., and Concern for Dying, Inc.

Before MacKENZIE, P.J., and SAWYER and JANSEN, JJ.

MacKENZIE, Presiding Justice.

This is an appeal from an order allowing petitioners, the parents of Joelle Rosebush, to authorize the removal of life-support systems for their minor daughter. Although the issues raised in this appeal were rendered technically moot upon Joelle's death, appellate review is nevertheless appropriate because the issues involve questions of public significance that may recur and yet evade review. Highland Recreation Defense Foundation v. Natural Resources Comm., 180 Mich.App. 324, 327, 446 N.W.2d 895 (1989). See also In re LHR, 253 Ga. 439, 321 S.E.2d 716 (1984); In re Lawrance, 579 N.E.2d 32, 37 (Ind.1991); In re Guardianship of Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984).

I

Joelle Rosebush was born on May 20, 1976. On January 12, 1987, she was involved in a traffic accident. Her spinal cord was severed at the C-1 level, just below the skull, and she went into cardiac arrest. The spinal cord injury left Joelle completely and irreversibly paralyzed from the neck down and unable to breathe without a respirator. The lack of oxygen during cardiac arrest destroyed most, if not all, of Joelle's cerebral functions, and left her in a persistent vegetative state. It was uncontroverted that Joelle would never regain consciousness and would never be able to breathe on her own. Joelle's brain stem was not destroyed, however, and her injuries did not leave her "brain dead" as defined under Michigan law. See M.C.L. Sec. 333.1021 et seq.; M.S.A. Sec. 14.15(1021) et seq.

Joelle was hospitalized at William Beaumont Hospital of Royal Oak until June, 1987. In spite of the prognosis of no recovery and Joelle's steadily deteriorating condition, petitioners, hopeful of future improvement in Joelle's condition, rejected the option of discontinuing life-support at that time. Joelle was then moved to the Neurorehabilitation Center at the Georgian Bloomfield Nursing Home. By March 1988, it became clear to petitioners that Joelle's condition had not improved and that she would never progress from her vegetative condition. Petitioners then decided to authorize the removal of life-support systems. This decision was made after consultation with Joelle's treating physicians, the staff of the Neurorehabilitation Center, the family's Catholic priest, and the family's attorney.

In March 1988, Joelle's medical case manager sought the assistance of doctors at Children's Hospital of Michigan--Detroit in effectuating petitioners' decision to discontinue life-support. The bio-ethics committee at Children's Hospital subsequently authorized Joelle's transfer to that facility for further evaluation. The transfer was blocked, however, after staff members at the Neurorehabilitation Center contacted respondent, who obtained an ex parte temporary restraining order, and later a preliminary injunction, prohibiting Joelle's transfer or the removal of life-support systems.

Following seven days of trial, the court dissolved the preliminary injunction and authorized petitioners "to make any and all decisions regarding the medical treatment received by their daughter, including but not limited to, the authority to order the removal of the ventilator that sustains Joelle's respiratory functions." Joelle died on August 13, 1988, shortly after her respirator was deactivated.

II

A

Courts variously have found a right to forego life-sustaining medical treatment on the basis of three sources: (1) the common-law right to freedom from unwanted interference with bodily integrity, (2) the constitutional right to privacy or liberty, or (3) statute. See generally, Meisel, The Right to Die (New York: Wiley Law Publications, 1989), pp 49 ff. We hold that, in Michigan, there is a right to withhold or withdraw life-sustaining medical treatment as an aspect of the common-law doctrine of informed consent. ¹ The trial court did not err in determining that petitioners had the legal authority to order the removal of life-support systems.

B

Michigan recognizes and adheres to the common-law right to be free from nonconsensual physical invasions and the corollary doctrine of informed consent. Accordingly, if a physician treats or operates on a patient without consent, the physician has committed a battery and may be required to respond in damages. Zoski v. Gaines, 271 Mich. 1, 9-10, 260 N.W. 99 (1935); Young v. Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989); Banks v. Wittenberg, 82 Mich.App. 274, 279-280, 266 N.W.2d 788 (1978).

The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, the right to refuse medical treatment and procedures. Werth v. Taylor, 190 Mich.App. 141, 145, 475 N.W.2d 426 (1991). Thus, a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Id., citing Cruzan v. Director, Missouri Health Dep't, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). ²

The right to refuse lifesaving medical treatment is not lost because of the incompetence or the youth of the patient. In re LHR, supra, 253 Ga. at p. 446, 321 S.E.2d 716. ³ However, because minors and other incompetent patients lack the legal capacity to make decisions concerning their medical treatment, someone acting as a surrogate must exercise the right to refuse treatment on their behalf. ⁴ See generally, Meisel, supra, chs 8 and 13; Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment (Williamsburg, Va: National Center for State Courts, 1991); Younger, ed, Hospital Law Manual, Attorney's Volume, Volume II (Rockville, Md: Aspen Publishers, Inc, 1983), pp 9 ff; anno: Judicial power to order discontinuance of life-sustaining treatment,48 ALR4th 67.

It is well established that parents speak for their minor children in matters of medical treatment. See Parham v. JR, 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Zoski, supra; Bakker v. Welsh, 144 Mich. 632, 108 N.W. 94 (1906). Because medical treatment includes the decision to decline lifesaving intervention, Werth, supra, it follows that parents are empowered to make decisions regarding withdrawal or withholding of lifesaving or life-prolonging measures on behalf of their children. ⁵

C

Having determined that minors have the same right to decline life-sustaining treatment as their competent adult counterparts, and that parents may act as surrogate decision makers to exercise that right, we next consider what restrictions, if any, should be placed on the parents' decision-making authority and what role, if any, the courts should play in the decision-making process. We hold that the decision-making process should generally occur in the clinical setting without resort to the courts, but that courts should be available to assist in decision making when an impasse is reached. We further hold that, in making decisions for minors or other incompetent patients, surrogate decision makers should make the best approximation of the patient's preference on the basis of available evidence; if such preference was never expressed or is otherwise unknown, the surrogate should make a decision based on the best interests of the patient.

D

Our research has found two cases involving the discontinuation of life-sustaining treatment for minor children who were in a persistent vegetative state. ⁶ In In re Guardianship of Barry, 445 So.2d 365 (Fla App, 1984), the parents petitioned to terminate life-support systems for their ten-month-old son, who was permanently comatose. The circuit court granted the petition, and the Florida Court of Appeals affirmed. In so doing, the court stated:

Where, as here, the parents' informed decision is backed by uncontroverted medical evidence that their young child is terminally ill and that his condition is incurable and irreversible, their decision, we think, overrides any interest of the state in prolonging their child's life through extraordinary measures. We can conceive of no state interest great enough to compel the parents to continue to submit their child to a life support system in this instance. To do so would merely prolong the death of a child terminally ill, wholly lacking in cognitive brain functioning, completely unaware of his surroundings, and with no hope of development of any awareness. The means now being employed are measures which even the physicians testified they would not now initiate given their present knowledge of the situation. It is, we think, the right and the obligation of the parents in...