Corbett v. D'Alessandro
| Decision Date | 18 April 1986 |
| Docket Number | No. 85-1052,85-1052 |
| Citation | 11 Fla. L. Weekly 917,487 So.2d 368 |
| Parties | 11 Fla. L. Weekly 917 Thomas E. CORBETT, Appellant, v. The Honorable Joseph P. D'ALESSANDRO, Appellee. |
| Court | Florida District Court of Appeals |
Arnold L. Berman, John R. Day and Robert D. Miller, of Shutts & Bowen, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., and Gerald B. Curington, Asst. Atty. Gen., Tallahassee, for appellee.
Fenella Rouse, Staff Atty., New York City, on behalf, of the Society For The Right to Die, Inc.
Appellant, Thomas E. Corbett, appeals a final declaratory judgment which refused appellant a judgment which would have permitted the discontinuance of furnishing nasogastric nutrition to Helen Corbett, appellant's terminally ill wife. Mrs. Corbett passed away naturally two days after the final hearing and prior to a decision by the trial judge. The trial judge rendered his decision in spite of Mrs. Corbett's death because he determined that the nature of the issues involved required a decision, relying upon John F. Kennedy Memorial Hospital Inc. v. Bludworth, 452 So.2d 921 (Fla.1984). We, likewise, consider that a justiciable issue has been presented and will not decline to rule on the basis that the issue has been made moot by reason of the death of Mrs. Corbett. See also John F. Kennedy Memorial Hospital Inc. v. Bludworth, 432 So.2d 611 (Fla. 4th DCA 1983), rev'd. on other grounds, 452 So.2d 921 (Fla.1984).
The facts established in this case show that appellant and Mrs. Corbett were married on December 25, 1936. There were no children of the marriage. Mrs. Corbett had no living parents and no brothers or sisters. Mrs. Corbett, at the time appellant's petition for declaratory relief was filed on December 10, 1984, had been in a persistent vegetative state since March 13, 1982, and had received nutritional sustenance solely through a nasogastric tube since the Autumn of 1982. Mrs. Corbett's attending physician, a specialist in Internal Medicine, gave a written opinion on November 26 1984, confirming that Mrs. Corbett was in a permanent vegetative state with no reasonable prospect of regaining cognitive brain function and was being sustained only through the use of nutrition supplied through a nasogastric tube. Two specialists in Neurology concurred, in writing, with the opinion of the attending physician.
At the time of the final hearing, Mrs. Corbett was approximately seventy-five years of age. Mrs. Corbett did not have a living will specifying her desires regarding treatment, nor had she designated, in writing, anyone to make treatment decisions for her.
Appellant and the health care professionals attending Mrs. Corbett were reluctant to discontinue the nasogastric sustenance without judicial intervention and approval for fear of civil and/or criminal liability. Appellant, therefore, sought declaratory relief as to the propriety of the discontinuance of the nasogastric tube. The trial court denied appellant's request for relief.
Appellant's argument focuses on three issues. The first issue urges that "[t]he trial court erred in ruling that the discontinuance of the use of the nasogastric tube in this case is not protected by the Federal and State Constitutions, entitling appellant to the relief sought." We agree that the trial judge erred in holding that there was no Federal or State Constitutional right of privacy on which appellant could sustain the withholding of nasogastric forced sustenance to Mrs. Corbett.
The United States Supreme Court has long recognized that several of the fundamental constitutional guarantees have created a penumbral right to privacy that is no less important than the rights specifically articulated in the constitution. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Florida Constitution, article I, section 23, provides an express right of privacy to natural persons, and we have held that that right extends to incompetent persons who are unable to exercise the right in their own behalf. In re Guardianship of Barry, 445 So.2d 365 (Fla. 2d DCA 1984).
The trial court apparently recognized that this right of privacy exists regarding the removal of extraordinary life-prolonging procedures. It was unable to find, however, that the withholding of sustentance by the withdrawing of the nasogastric tube equated with the right to privacy exercised by the withholding of "extraordinary life-prolonging procedures." The trial court was troubled by the fact that chapter 765, Florida Statutes (Supp.1984) (Right to Decline Life-Prolonging Procedures), specifically excludes the "provision of sustenance" from its definition of "life-prolonging procedure," which may be the subject of the right to decline. See § 765.03(3)(b). The trial court failed to give full cognizance to the fact that chapter 765 was enacted as a method for a "competent adult" to provide, in advance, a written declaration directing the withholding of life-prolonging procedures in the event of a terminal condition. § 765.04. In the alternative, section 765.07 provides a method whereby certain enumerated persons, together with the attending physician, may act on behalf of an incompetent patient who has not made a declaration in accordance with section 765.04 when the express or implied intent of the patient can be established. Therefore, chapter 765 appears to have been enacted to apply in certain specified situations and was not intended to encompass the entire spectrum of instances in which these privacy rights may be exercised.
As evidence of that intent, section 765.15 provides that chapter 765 is "cumulative to the existing law ... and do[es] not impair any existing rights ... a patient ... may have ... under the common law or statutes of the state." We must construe section 765.15 to protect all constitutional rights a patient might have or else the statute would be unconstitutional. We hold, therefore, that although chapter 765, in those cases to which it applies, excludes the right to decline sustenance providing life-prolonging measures, that chapter does not affect the otherwise existing constitutional rights of persons in a permanent vegetative state with no reasonable prospect of regaining cognitive brain function to forego the use of artificial life sustaining measures.
Our supreme court in Kennedy v. Bludworth, 452 So.2d at...
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