Brophy v. New England Sinai Hosp., Inc.

• Decision Date: 11 September 1986
• Citation: 398 Mass. 417,497 N.E.2d 626
• Parties: Patricia E. BROPHY v. NEW ENGLAND SINAI HOSPITAL, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 626

497 N.E.2d 626

398 Mass. 417

Patricia E. BROPHY v. NEW ENGLAND SINAI HOSPITAL, INC.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued May 7, 1986.

Decided Sept. 11, 1986.

Frank E. Reardon (Nancy R. Rice and Judith A. Johnson, Boston, with him), for plaintiff.

Elaine M. Moriarty, Boston, for defendant.

Peter W. Gubellini, Wellesley, for the ward.

John G. Dugan, West Newton, for guardian ad litem.

Anne W. Hogeland and John Traficonte, Boston, for amici curiae American Academy of Neurology.

Carol J. Weil of the District of Columbia, Washington, D.C., for amici curiae Massachusetts Chapter of American College of Physicians.

Dennis J. Horan, Edward R. Grant, Clarke D. Forsythe, Ann-Louise Lohr, Chicago, Ill., J. Michael Roberts, Quincy, Mass., for amici curiae certain fellows and members of Massachusetts Medical Soc. & others.

Elena N. Cohen and Fenella Rouse, New York City, for amici curiae Society for the Right to Die, Inc.

Charles H. Baron, Newton and Marjorie Heins, Boston, for amici curiae Civil Liberties Union of Massachusetts.

William Crane and Jonathan Brant, Boston, for amici curiae Developmental Disabilities Law Center, Inc. George J. Annas and Leonard H. Glantz, Boston, for amici curiae Concern for Dying.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

We are asked to decide whether the substituted judgment of a person in a persistent vegetative state that the artificial maintenance of his nutrition and hydration be discontinued shall be honored. The effectuation of the ward's wishes is supported by his wife-guardian and his family, but is opposed by his attending physicians and the defendant hospital. We are faced again with a case where "[a]dvances in medical science have given doctors greater control over the time and nature of death" and where physicians have developed a "range of options ... to postpone death irrespective of the effect on the patient." Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 737, 370 N.E.2d 417 (1977). We recognize that "[t]he case ... raises moral, social, technological, philosophical, and legal questions involving the interplay of many disciplines. No one person or profession has all the answers." Matter of Conroy, 98 N.J. 321, 344, 486 A.3d 1209 (1985).

Sensitive to the significance and complexity of our decision, we do not shirk our responsibility, for we are aware that the advances of medical science and technology are "compelling the public, through the courts, if not the legislatures, to formulate new standards and procedures for measuring the conduct of persons involved in the health care of persons with irreversible brain damage." Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334, 1344 (Del.Supr.1980). ¹ It has been said that "we are on the threshold of new terrain--the penumbra where death begins but life, in some form, continues. We have been led to it by the medical miracles which now compel us to distinguish between 'death,' as we have known it, and death in which the body lives in some fashion but the brain (or a significant part of it) does not." Id. See, in accord, Barber v. Superior Court for Los Angeles County, 147 Cal.App.3d 1006, 1014, 195 Cal.Rptr. 484 (1983). ²

In Saikewicz, supra, and cases following it, we have been confronted with some of the legal implications of these new medical advances, as had been the New Jersey Supreme Court earlier in Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). We have determined that, in certain circumstances, further medical treatment may be discontinued. The Supreme Court of New Jersey has recently restated the dilemma: "As scientific advances make it possible for us to live longer than ever before, even when most of our physical and mental capacities have been irrevocably lost, patients and their families are increasingly asserting a right to die a natural death without undue dependence on medical technology or unnecessarily protracted agony--in short, a right to 'die with dignity.' " Matter of Conroy, supra, 98 N.J. at 343, 486 A.2d 1209. ³ It is in this context that we turn to consider the facts and the law applicable to this appeal.

1. The facts.

a. The medical incident and initial proceedings. Paul E. Brophy, Sr. (Brophy), was afflicted on March 22, 1983, by the rupture of an aneurysm located at the apex of the basilar artery. Prior to that time, Brophy had been a healthy, robust man, who had been employed by the town of Easton as a fireman and emergency medical technician. He enjoyed deer hunting, fishing, gardening, and performing household chores. At about midnight on March 22, 1983, he complained to his wife, Patricia, of a severe, "splitting" headache. He became unconscious. His wife called the Easton fire department, and Brophy was transported to Goddard Hospital. An angiogram at Goddard Hospital revealed the aneurysm. Surgery ensued on April 6, 1983, but was not successful. He has never regained consciousness. Brophy is now in a condition described as a "persistent vegetative state." ⁴ He is unable to chew or swallow, and is maintained by an artificial device, surgically inserted on December 22, 1983, known as a gastrostomy tube (G-tube) through which he receives nutrition and hydration. On June 28, 1983, he was transferred to the New England Sinai Hospital (hospital), where he remains as a patient.

Brophy's wife and family wish the G-tube removed or clamped. When the physicians and hospital refused, litigation was commenced by Brophy's wife in the Probate and Family Court Department. A judge of the Probate Court, ⁵ after extensive hearings, found that Brophy, now incompetent, would, if competent, decline to receive food and water in this manner, and that Brophy's wife and guardian, Patricia E. Brophy, and his family and relatives agree with this choice. Nevertheless, the judge ordered the continuation of nutrition and hydration by use of the G-tube and enjoined both the hospital and the guardian from removing or clamping the tube. We now set aside the judgment and remand the case for entry of a new judgment. In doing so, we sustain that portion of the judgment which respects the right of the hospital to refuse to remove or clamp the G-tube, but authorize the guardian to remove Brophy from the hospital to the care of other physicians who will honor Brophy's wishes.

b. The medical facts. Diagnostic techniques utilized to determine the nature of Brophy's illness revealed subarachnoid bleeding in the posterior fossa surrounding the upper brain stem. Later, an angiogram revealed an aneurysm located at the apex of the basilar artery. On April 6, 1983, Brophy underwent a right frontotemporal craniotomy. Shortly after surgery, he received several CT scans which showed extensive damage, namely, complete infarction of his left posterior cerebral artery and infarction of the right temporal lobe of the brain. After surgery, he initially received nutrition by means of a nasogastric tube.

On June 28, 1983, Brophy was transferred to the New England Sinai Hospital. He received intensive physical and speech therapy for about three to four weeks. After he showed no response to that therapy, it was permanently discontinued. On July 7, 1983, Doctor Ferey Shahrokhi diagnosed Brophy as being in a "semi-vegetative or vegetative state." ⁶ In August, 1983, he contracted pneumonia, and the hospital requested his wife's instructions regarding a "do not resuscitate" order (DNR order) in the event of a cardiac arrest. Mrs. Brophy requested a DNR order, and one was entered on his chart.

On December 21, 1983, Brophy was transferred to the Cardinal Cushing General Hospital, with the consent of his wife, and on December 22, 1983, he underwent a surgical procedure in which a G-tube was inserted through a stoma in the abdominal wall into the stomach to provide him with nutrition and hydration. On December 29, 1983, he was discharged from the Cardinal Cushing General Hospital and was readmitted into the New England Sinai Hospital.

Although Brophy is not technically brain dead, ⁷ he has suffered serious and irreversible damage to his brain. ⁸ Some areas of his brain remain undamaged ⁹ but have been stranded and left dysfunctional. ¹⁰ The damage makes him unable to integrate input from his environment, and to commence voluntary activity; he lacks cognitive functioning such as reasoning. ¹¹ Although his body responds to certain stimuli, it is probable that the actions are reflexive and do not result from cognitiveactivity . ¹² He appears to be comfortable, and, on the occasions when he shows signs of discomfort, ¹³ it appears that medication ameliorates that discomfort.

According to the testimony of Dr. Ronald Cranford, who has made extensive studies regarding the condition of persistent vegetative state, ¹⁴ the likelihood of Brophy's regaining cognitive functioning is substantially less than one per cent. ¹⁵ The probate judge found that it is highly unlikely that he will ever regain cognitive behavior, the ability to communicate, or the capability of interacting purposefully with his environment.

Apart from the extreme injury to his brain, Brophy's other organs are functioning relatively well. The judge found that he is not terminally ill, nor is he in danger of imminent death from any other medical cause. ¹⁶ It appears that he may live in a persistent vegetative state for several years, although a nonaggressive treatment plan will probably shorten his life.

Brophy is dependent on the G-tube for life sustaining nutrition and hydration. The G-tube is a pliable silicone tube, about one and one-half feet in length with two openings at the top. Food enters the larger ¹⁷ opening of the G-tube via plastic tubing, some two and one-half feet long, which in turn is connected to a plastic bag which hangs above the...