580 N.E.2d 876 (Ohio Prob. 1991), 404369, In re Guardianship of Crum

Docket Nº:404369.
Citation:580 N.E.2d 876, 61 Ohio Misc.2d 596
Opinion Judge:LAWRENCE A. BELSKIS, Judge.
Party Name:In re GUARDIANSHIP OF CRUM. [*]
Attorney:[61 Ohio Misc.2d 597] 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.
Case Date:September 19, 1991
Court:County Court of Ohio
 
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Page 876

580 N.E.2d 876 (Ohio Prob. 1991)

61 Ohio Misc.2d 596

In re GUARDIANSHIP OF CRUM. [*]

No. 404369.

Probate Court of Franklin County, Ohio.

September 19, 1991

Page 877

[61 Ohio Misc.2d 597] 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.

Page 878

[61 Ohio Misc.2d 598] 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 [61 Ohio Misc.2d 599] 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...

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