Commissioner of Correction v. Myers

• Decision Date: 19 November 1979
• Citation: 379 Mass. 255,399 N.E.2d 452
• Parties: COMMISSIONER OF CORRECTION v. Kenneth MYERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 452

399 N.E.2d 452

379 Mass. 255

COMMISSIONER OF CORRECTION v. Kenneth MYERS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 13, 1979.

Decided Nov. 19, 1979.

Robert H. Claridge, Boston, for the Commissioner of correction.

Jonathan Brant, Asst. Atty. Gen., for the Dept. of Public Health.

Joseph K. Mackey, Boston, for defendant.

Ronald B. Schram, John C. Kane, Jr., Daniel T. Roble, Boston, and Patrick R. Carroll, Burlington, for Massachusetts Hospital Ass'n, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

This case was reported to the Appeals Court pursuant to G.L. c. 231, § 111, and Mass.R.Civ.P. 64, 365 Mass. 831 (1974), because the judge below found that it raised novel and important questions of law. This court granted the plaintiffs' application for direct appellate review.

We first consider whether certain factual developments render the case moot. We determine that they do not. Thus, we must decide whether the Superior Court's order compelling an unconsenting, competent, adult prisoner to submit to life-saving hemodialysis treatments and related medications is consistent with the prisoner's interest in bodily integrity and right of privacy considerations which authorized an individual to forgo life-prolonging chemotherapy treatment in Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977). We conclude that there is no conflict and therefore affirm the order.

The Commissioner of Correction (Commissioner) initiated these proceedings in the Superior Court, seeking both a declaratory judgment that he could compel the defendant to undergo hemodialysis and a temporary restraining order compelling the defendant to submit to the treatment. The court denied the temporary restraining order but scheduled an evidentiary hearing and appointed counsel to represent the defendant. Subsequent to the hearing, the court issued an order declaring that the Commissioner and the Department of Public Health, which had intervened as a plaintiff, possessed the legal authority to compel the defendant to submit to hemodialysis. However, the order denied without prejudice the preliminary injunctive relief in light of the defendant's continuing voluntary submission to treatment.

One month later, the Commissioner returned to court because the defendant was threatening to refuse his scheduled dialysis. In accordance with its prior declaration, the court issued an order stating that the plaintiffs could use any reasonable force necessary to restrain the defendant during the administration of dialysis and any other life-saving medications. The defendant, however, voluntarily submitted to treatment, and the order expired by its terms. Nevertheless, one week later, when the defendant again refused dialysis, the court issued a standing order authorizing coerced treatment.

The facts may be summarized as follows. The defendant Kenneth Myers is an unmarried, mentally competent, twenty-four year old male. Since April 26, 1976, he has been serving several concurrent seven to ten year sentences in Massachusetts correctional institutions. At the time of the proceedings below, the defendant was incarcerated at MCI Concord, a medium security institution.

While in prison, the defendant developed a kidney condition diagnosed as chronic glomeralo-nephritis and uremia. When the kidney condition worsened, the defendant began receiving hemodialysis, defined by testimony as a procedure whereby blood is pumped out of the body, cleansed of its toxins by a mechanical filtering process, and then returned to the body. See Schmidt's Attorneys' Dictionary of Medicine, D-38, H-27 (1977). The treatment was administered three times a week in sessions of four hours' duration, with an additional hour spent connecting and disconnecting the machine.

In addition to dialysis, the defendant received kayexalate, a medication that lowers the blood's potassium level. Kayexalate was normally prescribed only on week-ends, the longest periods between regularly scheduled dialysis, to alleviate the risk of sudden death from cardiac arrest. According to the estimates of Dr. Tai Jin Chung, the treating nephrologist, the defendant could survive only three to five days if he refused both dialysis and kayexalate, but he could survive ten to fifteen days if he took the medication alone.

For one year the defendant submitted to dialysis without significant complaint. However, on November 29, 1978, the defendant refused his regularly scheduled dialysis. He continued to refuse treatment the next day and, for a while, also refused the kayexalate medication. Although efforts were made to persuade him to accept dialysis, there was no attempt to treat him without his consent. The defendant finally consented to dialysis on December 1, after the Commissioner had filed his complaint. However, the defendant did not indicate a willingness to continue dialysis in the future and, in fact, threatened to refuse treatment at any time.

After the evidentiary hearing, the court concluded that the defendant's refusal of treatment had "little to do with his disease, the nature or effects of the dialysis treatment, or the personal ramifications of continuing such treatment for the remainder of his life." His refusal was also unrelated to any religious objection to the treatments. Nor did the defendant wish to die. Rather, the court found that "Myers' refusal to take dialysis constitute(d) a form of protest against his placement in a medium, as opposed to a minimum, security prison." As found by the court, this protest stemmed from the defendant's belief that continued hemodialysis weakened him and reduced his ability to defend himself against other inmates.

In addition, the court found that dialysis was "relatively painless." The most significant pain, according to both Dr. Chung and the defendant, resulted from the initial administration of xylocaine, a local anesthetic. Although the treatment was frequently accompanied by such side effects as nausea, headaches, and physical exhaustion, the headaches and nausea resulted from high toxicity levels of the blood and consequently would occur even in the absence of treatment. The court also found that the defendant would be able to live an otherwise normal and healthy life if he continued to undergo dialysis. Moreover, the defendant was found to be a good candidate for a kidney transplant, an operation that could restore him to complete health.

The court's finding with regard to the possibility of coerced administration of dialysis was based on testimony of Dr. Chung and Shattuck Hospital Correctional Unit Director Bruce R. Martin. Dr. Chung testified that medical ethics demanded that everything possible be done to dialyze the defendant "up to the point we cannot technically manage it." Nonetheless, he admitted that he had never administered dialysis to an unwilling patient nor heard of others doing so and that it was not possible to use a general anesthetic to subdue a patient. Dr. Chung also testified that in the unlikely but conceivable event that the patient's struggling dislodged one of the needles connected to his arm, three to four minutes loss of blood could prove fatal. Nevertheless, the court found that employing a combination of mechanical and human restraints, as described by Martin, would provide "a feasible, if not completely risk-free, means of physically immobilizing the recipient so that involuntary treatment could be accomplished."

It was within the foregoing factual context that we granted the petition for direct appellate review. Subsequent to the Superior Court's order, the defendant was transferred to a minimum security facility, the object of his original refusal of treatment, and received a kidney transplant. Although the success of the transplant cannot be finally determined until March, 1980, the defendant's doctor has stated in an affidavit that it is "more likely than not that (Myers) will never again need (hemodialysis) treatment." In addition, the defendant has agreed to submit in the future to any necessary hemodialysis. On the basis of the preceding factual developments, the defendant argues that the case has become moot and should therefore be dismissed.

Although he acknowledges the significant changes in the facts, the Commissioner points to two other new facts relevant to the mootness question. The first is that the defendant's chances of retaining the functioning transplanted kidney are wholly dependent on his taking two prescribed medications, prednisone and imuran, on a daily basis. Thus, upon the defendant's refusal of essential medication or upon his body's rejection of the transplanted kidney, the case could return to its posture prior to the transplant. Also substantiating the Commissioner's claim that the case is not moot is the fact that the defendant's subsequent transfer to a minimum security facility did not terminate his refusals of dialysis. In light of that fact and the defendant's past unpredictable behavior, the Commissioner asserts that he cannot rely on the defendant's pledge to cooperate with essential treatment but must depend on the Superior Court's authorization of treatment without consent.

1. We agree with the Commissioner's arguments and do not treat the case as moot. The defendant's vacillating attitude toward treatment in the past, the possibility that the kidney transplant may not be successful, and the necessity for the defendant to cooperate in taking supportive medications, all combine to make this a viable case. Even assuming arguendo that the case is factually moot, the question of the right of prisoners to refuse life-saving treatment in what amounts to an emergency situation is one "of public importance, capable of repetition, yet evading review." Superintendent of Worcester State Hosp. v. Hagberg, --- Mass....