DeGrella By and Through Parrent v. Elston

• Decision Date: 15 July 1993
• Docket Number: No. 92-SC-756-TG,92-SC-756-TG
• Citation: 858 S.W.2d 698
• Parties: , 4 NDLR P 120 Martha Sue DeGRELLA, by and through her Guardian Ad Litem, Homer PARRENT, III, Appellant, v. Joseph G. ELSTON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 698

858 S.W.2d 698

62 USLW 2072, 4 NDLR P 120

Martha Sue DeGRELLA, by and through her Guardian Ad Litem, Homer PARRENT, III, Appellant, v. Joseph G. ELSTON, Appellee.

No. 92-SC-756-TG.

Supreme Court of Kentucky.

July 15, 1993.

Homer Parrent, III, Parrent, Vish & Smither, Louisville, for appellant.

Mary Z. Ceridan, Bill V. Seiller, Handmaker & Seiller, ACLU Cooperating Attys., David A. Friedman, Gen. Counsel, American Civ. Liberties Union of Kentucky, Louisville, for appellee.

Vincent F. Heuser, Jr., Louisville, James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John Altomare, Indianapolis, IN, for amicus, Ethics & Advocacy Task Force.

Gerald Kirven, Louisville, for amicus, Kirven, Member of the Bar.

Laurance B. VanMeter, Stoll, Keenon & Park, Lexington, for amicus, Ky. Assoc. of Hospices.

Benjamin J. Lookofsky, Mayfield, for amicus, Jane Doe.

Charles J. Cronan, IV, Martha J. Hasselbacher, Stites & Harbison, Louisville, for amicus, Jefferson Co. Medical Soc.

Chris Gorman, Atty. Gen., Thomas J. Hellmann, Asst. Atty. Gen., Civ. Div., Frankfort, for amicus, Atty. Gen.

Edgar A. Zingman, Susan B. Turner, Carole D. Christian, Lori E. Raff, Wyatt, Tarrant & Combs, Louisville, for amicus, Kentucky Hosp. Assoc.

Ann E. Fade, Director of Legal Services, Choice in Dying, Inc., New York City, Patricia Walker Fitzgerald, Walker & Radigan, Louisville, for amicus, Choice in Dying, Inc.

LEIBSON, Justice.

This is the first of the so-called "right to die" cases, spawned by modern medical technology, to reach this Court. ¹

As a result of a tragic beating inflicted upon her on February 22, 1983, Martha Sue DeGrella (Sue) sustained an acute subdural hematoma causing severe brain damage for which medical treatment was of no benefit. She now languishes, slowly wasting away, in a persistent vegetative state at the Lyndon Lane Nursing Home in Jefferson County, Kentucky. She receives nourishment and water through a gastrostomy tube surgically implanted into her stomach. She breathes through a tracheotomy tube inserted into her throat. These medical devices have been in place since March 4 1983, with no significant possibility of improvement in her condition. With artificially supplied nutrition and hydration she may linger on many years in this condition. The doctors advise there is no "serious" report of a case where such a patient has recovered.

Martha Elston, Sue's mother, was appointed her daughter's legal guardian by Order of Jefferson District Court in October 1991, and in February 1992, she filed the within action, naming Sue as the respondent and asking the appointment of a Guardian Ad Litem to advocate Sue's interests. Her petition seeks a declaratory judgment acknowledging Sue's persistent vegetative state and asking the court to declare that "Martha Elston, as mother of Sue DeGrella, is permitted by Kentucky law to substitute her judgment for that of her daughter." Strictly speaking, Martha Elston, the petitioner, does not seek a court order to disconnect the gastrostomy tubes used to provide nourishment and water for her ward and daughter, but a court declaration that she, as Sue's mother and Guardian, has the right to direct such discontinuation. The petition alleges, and she has now proved to the satisfaction of the trial judge by clear and convincing evidence, that "if she [Sue] could speak, she would say, 'Let me go.' "

This case is not in court because there is a dispute between the family members as to the patient's wishes, or between the physicians as to the medical evidence. The case is before our Court because Sue's attending physician and the nursing home fear legal sanctions, administrative, civil or even criminal, should they carry out the wishes of the patient as expressed through her mother and legal guardian. Being thus concerned, they have advised the family they require court authorization before permitting or participating in the removal of the medical device which provides Sue with nourishment and water.

The Guardian Ad Litem did not file a response controverting the factual allegations of the petition, all of which now have been proved at trial. Nevertheless, the Guardian Ad Litem attended the trial, which took place over a two-day period in July 1992, appropriately tested the witnesses by cross-examination, and after the trial submitted a final report in which he recommended "that the court deny the relief sought." He stated:

"Despite the horrendous situation in which the Elston family finds itself, your Guardian Ad Litem simply does not believe that there is anything in present Kentucky law which authorizes what the Plaintiff seeks...."

In Brief and oral argument the Guardian Ad Litem, who is now the appellant, has conceded that there is no dispute about (1) Sue's present condition, (2) the feelings she expressed as a competent adult about the subject at issue before this devastating condition was forced upon her, and (3) her medical prognosis. The court below decided that Sue DeGrella's mother and legal guardian, ² has the right to direct her attending physician and the nursing home where Sue resides to disconnect the feeding tube that is maintaining her existence, and let her die. The Guardian Ad Litem challenges the legality of this decision, but fully agrees the facts are fairly stated in the trial court's Opinion.

Within the context of this case, the issues are: (1) whether there is a right to choose to die as well as a right to live; (2) whether a person who has clearly stated, as a competent adult, that she would choose to die if ever reduced to the conditions presented, retains the right to do so after a devastating injury has rendered her incompetent and left her in a persistent vegetative state; and (3) if the answers to these two questions are in the affirmative, whether the right she retains may be exercised through a surrogate, in this case Sue's next of kin and legal guardian.

In addressing these issues we must confront several sub-issues. If there is a right to choose to die in present circumstances (1) what is the impact upon such right of two statutes enacted in 1990, the Kentucky Living Will Act (KRS 311.622-.644) and the Health Care Surrogate Act of Kentucky (KRS 311.970-.986); (2) do statements made by a person when competent regarding the desire to forego medical treatment in the future under certain conditions provide an evidentiary basis for surrogate decision-making when the patient is rendered incompetent; (3) do the powers of a legal guardian or next of kin ever extend to authorizing the withdrawal of life prolonging medical treatment, even with a person in Sue's condition; and (4) to what extent, if any, should courts be authorized or required to play a role in the decision-making process?

There is one prefatory issue which we must address before embarking on this discussion lest our words be misunderstood as the first step onto a slippery slope, or misapplied by trial courts in future cases: that is the quality-of-life issue. As long as the case is confined to substitute decision-making by a surrogate in conformity with the patient's previously expressed wishes, the case involves only the right of self-determination and not the quality of life. However, as evidence regarding the patient's wishes weakens, the case moves from self-determination towards a quality-of-life test. At the point where the withdrawal of life-prolonging medical treatment becomes solely another person's decision about the patient's quality of life, the individual's "inalienable right to life," as so declared in the United States Declaration of Independence and protected by Section One (1) of our Kentucky Constitution, outweighs any consideration of the quality of the life, or the value of the life, at stake. Nothing in this Opinion should be construed as sanctioning or supporting euthanasia, or mercy killing. We do not approve permitting anyone to decide when another should die on any basis other than clear and convincing evidence that the patient would choose to do so. This was the decision of the trial court in this case, and it is this decision which we affirm.

The trial court's Findings of Fact, Conclusions of Law and Judgment, entered September 3, 1992, comprise some 49 pages and can hardly be summarized within the confines of this Opinion. Eleven witnesses testified, including Sue's mother, two brothers, a sister, her former husband, three doctors, the nursing home administrator, and two theologians. Irreversible brain damage has destroyed Sue's higher brain functioning. Only her brain stem continues to function, continuing to operate her respiration and heart. With continued feeding she may live many years. However, her brain and her body will continue to wither. She reacts only at a reflexive level, meaning she will withdraw from painful stimulus, but does not experience pain by cognitive thought. Ceasing the nutrition and hydration will cause no pain, although, likewise, continuing treatment causes no pain. With the withdrawal of the feeding tube, all signs of life will expire in about ten to twelve days.

The finding of the trial court, supported by the uncontroverted medical evidence, is:

"The provision of nutrition and hydration by way of a gastrostomy tube is found to be an artificial intrusion into the body of Sue DeGrella and under the circumstances of this case is deemed by the Court to be an extraordinary measure utilized to perpetuate her life signs."

The trial court found by "clear and convincing evidence" that the proof sustained the allegations of the Complaint, both as to the medical facts regarding Sue's condition and prognosis and as to her choice as she expressed it to family members on different occasions and in different contexts; specifically, as the subject came up in conversation on various occasions, that if she were ever faced with a devastating injury or illness incapacitating her such as she is now incapacitated, she would want her...