534 A.2d 947 (Me. 1987), Gardner, In re

Citation:534 A.2d 947
Opinion Judge:MCKUSICK,
Party Name:In re Joseph V. GARDNER.
Attorney:Janet T. Mills (orally), Dist. Atty., Auburn, for appellant. Robert C. Robinson, Roginson, Kriger & McCallum, P.A., Portland, Edward R. Grant, Clarke D. Forsyth, Chicago, Ill., for amici curiae Americans United for Life Legal Defense Fund. Stephen Whiting, Hewes, Douglas, Whiting & Quinn, Portlan...
Judge Panel:Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ. CLIFFORD, Justice, with whom ROBERTS and WATHEN, JJ., join, dissenting.
Case Date:December 03, 1987
Court:Supreme Judicial Court of Maine

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534 A.2d 947 (Me. 1987)

In re Joseph V. GARDNER.

Supreme Judicial Court of Maine.

December 3, 1987

Argued Sept. 18, 1987.

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Janet T. Mills (orally), Dist. Atty., Auburn, for appellant.

Robert C. Robinson, Roginson, Kriger & McCallum, P.A., Portland, Edward R. Grant, Clarke D. Forsyth, Chicago, Ill., for amici curiae Americans United for Life Legal Defense Fund.

Stephen Whiting, Hewes, Douglas, Whiting & Quinn, Portland, Steven F. McDowell, Walter M. Weber, Milwaukee, Wis., for amici curiae Catholic League for Religious and Civil Rights.

Daniel P. Barrett, Portland, James Bopp, Jr., Thomas J. Marzen, Mary M. Nimz, Indianapolis, Ind., for amici curiae Ethics and Advocacy Task Force of the Nursing Home Action Group.

Roscoe H. Fales (orally), Fales & Fales, Lewiston, for Rosemary Sacre.

Andrew B. Choate, (on brief) for Rosemary Sacre.

Jon S. Oxman (orally), Linnell, Choate & Webber, Auburn, for guardian ad litem.

Leigh Ingalls Saufley (orally), Deputy Atty. Gen. Human Services Sec., Augusta.

Jane P. Andrews, Lewiston, Fenella Rouse, Elena N. Cohen, New York City, for amicus curiae Society for the Right to Die.


McKUSICK, Chief Justice.

This case poses the sensitive question, novel to us, of when life-sustaining procedures may be discontinued for a hospital patient in a persistent vegetative state with no hope for improvement. The Superior Court (Androscoggin County) declared that in the specific circumstances presented by

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the facts of this case those procedures may be discontinued. We agree.

Requiring proof by clear and convincing evidence, the Superior Court after extensive hearings found the following facts among others: On May 11, 1985, Joseph V. Gardner, then nearly 23 years of age, suffered "severe, permanent and totally disabling" injuries to his head when he fell from the back of a moving pickup truck. Despite heroic surgical and rehabilitative efforts and the best of medical care and treatment, Gardner since the accident "has never regained consciousness" and has been "in a chronic and persistent vegetative state without hope of regaining any cognitive or voluntary bodily functions by any known or anticipated medical procedures." "He is totally incapable of feeding himself or ingesting food or drink by normal means. He is unable to chew or swallow." A patient at Central Maine Medical Center (CMMC) in Lewiston, Gardner is kept alive by the artificial introduction of nutrition and hydration through a so-called Dobbhoff nasogastric (NG) tube inserted by medical personnel through his nose and esophagus into his stomach and intestines. His "body is almost totally spastic" and so rigid that the nurses must pry his legs apart to wash him. He has no control over his bowel, bladder and other bodily functions. "He cannot ... voluntarily move any parts of his body." "There is no evidence of any thought process, emotion or pain." Prior to the 1985 accident Gardner had declared his "intent and desire that he not be maintained on the nasogastric tube"; that he would rather die than be maintained in a persistent vegetative state by artificial means. In the event that Gardner's stated wish is respected, his "death will be without conscious pain or discomfort" and will come within three to fourteen days.

The Superior Court held that "[t]he State's right to preserve life and prevent suicide does not overcome Gardner's inherent right ... to make a decision to terminate or withdraw life-sustaining treatment" and declared that Gardner's mother acting as his guardian has the authority to have carried out his stated wish for the removal of the NG tube as well as any other life-sustaining procedures. In addition, the Superior Court declared that no health care facility or personnel are subject to any criminal or civil liability or profesional discipline for permitting such removal, and that any such facility or personnel may affirmatively decline to participate in such removal subject to a duty to take reasonable steps to effect or assist with a transfer of Gardner to another facility if requested. All of Gardner's family and close friends who testified at trial had urged the Superior Court that Gardner's pre-accident decision not to be kept alive artificially in a persistent vegetative state should be respected. So also had the Maine Department of Human Services 1 and Gardner's court-appointed guardian ad litem after each had made an independent investigation. The District Attorney for Prosecutorial District 3, however, at trial took the opposing position and has now appealed the Superior Court's judgment. 2 We affirm the Superior Court.

The Superior Court based its holding in part upon Gardner's own personal decision declared prior to his accident, and in part upon a theory of "substituted judgment"; namely, the exercise of judgment on behalf of a now incompetent Gardner as to what he, if he were currently competent and conscious, would want done. On the basis of clear and convincing evidence, the court made findings that fully support both grounds for its holding. In affirming the judgment of the Superior Court, however,

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we do not find it necessary to go beyond Gardner's own personal decision. Gardner's case is entirely different from those cases of "substituted judgment" where the patients, now incompetent, have never stated their intent and desire as to being kept alive in an irreversible vegetative state by artificial means. Here we need no substitute for Gardner's own personal judgment. Here Gardner before his terrible accident had made his pertinent wishes well known and the Superior Court specifically so found. Therefore, the only question we need address is whether a person who is now in a persistent vegetative state may compel the discontinuation of life-sustaining procedures by means of the decision that he declared before he lost competency.

Any resolution of that narrow question must begin with a recognition of the longstanding importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination. John Stuart Mill, in his classic defense of individual autonomy, set forth what he perceived as the proper scope of personal liberty:

The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

J.S. Mill, On Liberty, reprinted in Three Essays 5, 15 (1975) (first published in 1859). A recent article on patient autonomy modified, as concerns medical treatment, Mill's description of the scope of self-determination, stating: "In general, the more intense and personal the consequences of a choice and the less direct or significant the impact of that choice upon others, the more compelling the claim to autonomy in the making of a given decision." Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 220 (1985).

American courts and commentators have long emphasized the importance of personal autonomy, especially in the realm of medical care. Before the turn of the century, Justice Gray writing for the United States Supreme Court declared:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pacific Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Writing for the New York Court of Appeals two decades later, Judge Cardozo, in Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914), concurred:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.

See, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d 1093, 1104 (1960). In its recently published report on the termination of life-sustaining treatment, the Hastings Center, which devotes itself to the research of ethical problems in medicine, biology, and the life sciences, states:

[O]ur ethical framework draws on the value of patient autonomy or self-determination, which establishes the right of the patient to determine the nature of his or her own medical care. This value reflects our society's long-standing tradition of recognizing the unique worth of the individual. We respect human dignity by granting individuals the freedom to make choices in accordance with their own values. The principle of autonomy is the moral basis for the legal doctrine of informed consent, which includes the right of informed refusal.

Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 7 (1987) [hereinafter Hastings Center, Terminating Life-Sustaining Treatment ]. A presidential commission

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consisting entirely of health care professionals except for its Chairman, the distinguished attorney Morris B. Abram, made the identical point in its 1983 Report. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 26 (1983) [hereinafter President's Commission, Deciding to Forego Life-Sustaining Treatment ]. See also N. Cantor, Legal Frontiers of Death and Dying 8-9 (1987).


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