Guardianship of Crum, In re

• Decision Date: 19 September 1991
• Docket Number: No. 404369,404369
• Citation: 580 N.E.2d 876,61 Ohio Misc.2d 596
• Parties: In re GUARDIANSHIP OF CRUM. *
• Court: Ohio Court of Common Pleas

Page 596

61 Ohio Misc.2d 596

580 N.E.2d 876

In re GUARDIANSHIP OF CRUM. ^*

No. 404369.

Probate Court of Franklin County Ohio.

Decided Sept. 19, 1991.

Isaac, Brant, Ledman & Becker and Thomas N. Taneff, Columbus, for co-guardians.

Arter & Hadden and R. Douglas Wrightsel, guardian ad litem, Columbus, for Dawn M. Crum.

LAWRENCE A. BELSKIS, Judge.

This matter came before the court on the 28th day of August, 1991 to consider the co-guardians' application for authority to withdraw nutrition and hydration from their ward, Dawn M. Crum. Representing the co-guardians was attorney, Thomas N. Taneff. Also appearing was R. Douglas Wrightsel, appointed by this court as guardian ad litem for the ward. The matter was heard on record.

Based on the case file and evidence adduced at this hearing, the court finds the following facts.

Dawn M. Crum was born December 15, 1973, the only child of Dillman L. and Diana M. Crum. Dawn had a typical, normal, and active childhood until March 23, 1986 when she acquired viral encephalitis and rapidly deteriorated into acute epilepticus and acute respiratory arrest requiring intubation. She has remained in a chronic vegetative state since that time.

Dawn has been placed at the Northland Terrace Nursing Home in Franklin County, Ohio, where she receives nutrition and hydration from a feeding gastrostomy tube and tracheostomy. Dawn's parents were appointed as co-guardians of her person on February 15, 1991. On July 3, 1991, the co-guardians filed their application to have this court authorize them to withhold nutrition and hydration from Dawn. It is the opinion of the co-guardians that Dawn no longer has any quality of life and that providing nutrition and hydration constitutes cruel and inhumane treatment. The court appointed R. Douglas Wrightsel as guardian ad litem for the ward and also appointed Dr. John Drstvensek to serve as independent physician.

It is well established and undisputed that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. As early as 1914 Justice Cardoza wrote in Schloendorff v. Society of New York Hosp. (1914), 211 N.Y. 125, 129-130, 105 N.E. 92, 93-94, that "every human being of adult years and sound mind has a right to determine what shall be done with his own body."

More recently, the United States Supreme Court in Cruzan v. Director, Missouri Dept. of Health (1990), 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224, assumed for the purpose of its discussion that for a competent person there was a constitutionally protected right to refuse lifesaving hydration and nutrition.

The question that is brought in the application before this court is whether an individual who is incompetent, both mentally and due to age, also has the right to terminate or refuse nutrition and hydration. In order to properly decide this issue the court must review the case law, the guardianship statutes, and the legislative intent of the Ohio General Assembly.

Ohio courts have dealt with the issue of termination of life sustaining care or nutrition and hydration through two reported decisions. In Leach v. Akron Gen. Med. Ctr. (1980), 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809, the probate court permitted the removal of a respirator pursuant to a constitutional right to privacy while in Couture v. Couture (1989), 48 Ohio App.3d 208, 549 N.E.2d 571, the appellate court prohibited the withdrawal of nutrition and hydration from a comatose patient in a persistent vegetative state with no realistic prospect of recovery when the withdrawal would likely result in the death of the patient.

The Leach decision followed the guidelines set forth in In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647. On April 15, 1975 Karen Ann Quinlan ceased breathing for two fifteen-minute periods. As a result, her examining physician diagnosed her as being in a "chronic vegetative state" which another expert defined as a "subject who remains with the capacity to maintain the vegetative parts of neurological function but who * * * no longer has any cognitive function." At the time of the decision, Quinlan's physicians and the other experts who testified believed that she could not survive without the assistance of a respirator to assist her in breathing. The prognosis was that she could never be returned to cognitive or sapient life; however, she did not meet the medical definition of "brain dead." Quinlan's father applied to be appointed her guardian so that he could request that the treating physicians terminate the use of the respirator.

In reaching its decision, the court relied upon the constitutional right of privacy. Recognizing that the United States Constitution does not mention any rights of privacy, the court cited Supreme Court decisions such as Eisenstadt v. Baird (1972), 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, and Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, which guarantee these rights. In Griswold v. Connecticut (1965), 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, 514, the Supreme Court found an "unwritten constitutional right of privacy which existed in the penumbra of specific guarantees of the Bill of Rights 'formed by emanations from those guarantees that help give them life and substance.' " Likening the right to refuse medical treatment to a woman's right to abortion (Roe v. Wade [1973], 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147), the Quinlan court held that the concept of the right of privacy was broad enough to encompass a patient's right to refuse treatment. Thus the right of privacy would permit a competent individual to decline treatment unless there was a compelling state's interest which would override that right.

Having held that a competent individual could refuse treatment, the court then turned to whether the right existed for an incompetent:

"If a putative decision by Karen to permit this noncognitive, vegetative existence to terminate by natural forces is regarded as a valuable incident of her right of privacy, as we believe it to be, then it would not be decided solely on the basis that her conditions prevent her conscious exercise of the choice. The only practical way to prevent destruction of the right is to permit the guardian and the family of Karen to render their best judgment, subject to the qualifications herein stated, as to whether she would exercise it in these circumstances." 70 N.J. at 41, 355 A.2d at 664.

Although Quinlan dealt with the withdrawal of a respirator, the United States Supreme Court dealt with the withdrawal of nutrition and hydration in Cruzan, supra. The Cruzan decision consisted of three Justices joining in the majority opinion, two separate concurring opinions, three Justices joining in a dissenting opinion, and one separate dissenting opinion. Through the multiplicity of opinions, eight Justices concurred that there was a right to withdraw nutrition and hydration. The argument among these Justices was to the state's role in allowing the withdrawal of the life-sustaining care.

Nancy Cruzan was incompetent from sustaining severe injuries in an automobile accident. It was estimated that she had been without oxygen for twelve to fourteen minutes causing permanent brain damage. Cruzan remained in a coma for approximately three weeks and then regressed to a permanent unconscious state. After it became apparent that Cruzan was not improving, her parents requested the hospital to terminate the nutrition and hydration. The trial court, relying on conversations between Nancy Cruzan and her roommate as to her intent, found that a person in the position of Cruzan had a fundamental right under the state and federal Constitutions to refuse or direct the withdrawal of death-prolonging procedures. This decision was reversed by the Supreme Court of Missouri, stating the conversations upon which the trial court relied were not clear and convincing evidence of Nancy Cruzan's intent. The case was appealed to the United States Supreme Court.

In its decision, the Supreme Court stated at 497 U.S. at ----, 110 S.Ct. at 2851, 111 L.Ed.2d at 241-242:

"The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."

However, the court would not accept the argument of the petitioners that an incompetent person should possess the same right to refuse life-saving hydration and nutrition as is possessed by a competent person. An incompetent individual cannot assert the right, the right must be asserted by a surrogate decision maker. The court recognized that Missouri had granted the power of a surrogate decision maker to act for the individual in certain instances, but in so doing, Missouri had established certain procedural safeguards to assure that the actions of the surrogate conformed with the expressed intent of the individual. Evidence of the individual's wishes must be established by clear and convincing evidence. The question in Cruzan was whether the United States Constitution forbids the establishment of this procedural requirement by the state. The argument was not whether there is a "right" for the surrogate decision maker to refuse or terminate life-sustaining care including nutrition and hydration but rather to what degree the state may impose safeguards upon that ability of the surrogate decision maker.

Both Cruzan and Leach required the courts to balance the individual's constitutional rights against the relevant state interests. Leach referenced the individual's constitutional right to privacy and the Cruzan case cited the individual's constitutional liberty interest under the Due Process Clause.

The Leach court reviewed four relevant state interests which may be compelling enough to outweigh the constitutional right to privacy: preservation of life, protection of third parties, maintenance of the ethics and integrity of the medical...