Donaldson v. Lungren, B055657

• Decision Date: 29 January 1992
• Docket Number: No. B055657,B055657
• Citation: 2 Cal.App.4th 1614,4 Cal.Rptr.2d 59
• Court: California Court of Appeals Court of Appeals
• Parties: , 60 USLW 2521 Thomas DONALDSON et al., Plaintiffs and Appellants, v. Daniel E. LUNGREN, as Attorney General, etc., et al., Defendants and Respondents. Civ.

Page 59

4 Cal.Rptr.2d 59

2 Cal.App.4th 1614, 60 USLW 2521

Thomas DONALDSON et al., Plaintiffs and Appellants, v. Daniel E. LUNGREN, as Attorney General, etc., et al., Defendants and Respondents.

Civ. No. B055657.

Court of Appeal, Second District, Division 6, California.

Jan. 29, 1992.

Garfield, Tepper, Ashworth & Epstein, Christopher Ashworth, David B. Epstein, Los Angeles, Jacqueline Misho, Santa Barbara, for plaintiffs and appellants

David Nawi, County Counsel, Stephen D. Underwood, Chief Deputy, for defendant and respondent Santa Barbara County Sheriff-Coroner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., Kristofer Jorstad, Deputy Atty. Gen., for defendants and respondents Atty. Gen. of State of Cal. and Dist. Atty. of the County of Santa Barbara.

GILBERT, Associate Justice.

Plaintiff Thomas Donaldson wishes to die in order to live. He suffers from an incurable brain disease. He wishes to commit suicide with the assistance of plaintiff Carlos Mondragon so that his body may be cryogenically preserved. It is Donaldson's hope that sometime in the future, when a cure for his disease is found, his body may be brought back to life.

He and Mondragon appeal a judgment dismissing their action for declaratory and injunctive relief. Despite our sympathy for Donaldson, we must affirm and hold he has no constitutional right to either premortem cryogenic suspension or an assisted suicide. We also decide Mondragon has no constitutional right to aid, advise or encourage Donaldson's suicide.

FACTS

Donaldson and Carlos Mondragon brought an action for declaratory and injunctive relief against the State Attorney General, the Santa Barbara District Attorney, and the Santa Barbara County Coroner. Plaintiffs' first amended complaint seeks a declaration that Donaldson has a constitutional right to premortem cryogenic suspension of his body and the assistance of others in achieving that state. The first amended complaint also seeks an injunction against criminal prosecution of Mondragon and others for participating in the premortem cryogenic suspension and an injunction against the coroner performing an autopsy on Donaldson's body after death. Plaintiffs allege the following:

Plaintiff Thomas Donaldson, a mathematician and computer software scientist, suffers from a malignant brain tumor, diagnosed by physicians as a grade 2 astrocytoma. The astrocytoma, a "space occupying lesion," is inoperable and continues to grow and invade brain tissue. The tumor has caused Donaldson weakness, speech impediments and seizures. Ultimately, continued growth of the tumor will result in Donaldson's Donaldson desires to be cryogenically suspended, premortem, with the assistance of Mondragon and others. This procedure would freeze Donaldson's body to be later reanimated when curative treatment exists for his brain cancer. Following cryogenic suspension, Donaldson will suffer irreversible cessation of circulatory and respiratory function and irreversible cessation of all brain function.

persistent vegetative state and death. Physicians have predicted his probable death by August 1993, five years from initial diagnosis.

He will be dead according to the definition of death set forth in Health and Safety Code section 7180. That section provides: "(a) An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead...."

Donaldson seeks a judicial declaration that he has a constitutional right to cryogenic suspension premortem with the assistance of others. Alternatively, he asserts he will end his life by a lethal dose of drugs. Mondragon will "advise and encourage" Donaldson through suicide "to minimize the time between his legal death and the onset of the cryonic suspension process."

Recognizing that Mondragon will be committing a homicide, or alternatively, aiding and advising a suicide, Donaldson and Mondragon seek an injunction protecting Mondragon from criminal prosecution. In order not to destroy his chance of reanimation, they also seek a court order to prevent the county coroner from examining Donaldson's remains. Donaldson and Mondragon base their action upon asserted constitutional rights of privacy and free expression.

Defendants demurred to plaintiffs' first amended complaint, contending Donaldson had no constitutional right to an assisted suicide and could not consent to his murder. Defendants also raised procedural challenges to plaintiffs' action. The trial judge ruled plaintiffs failed to state a cause of action, sustained the demurrer, and dismissed the action. Plaintiffs' appeal followed. On appeal they contend: 1) Donaldson has a constitutional right to premortem cryogenic suspension, and 2) Donaldson has a constitutional right to receive and Mondragon has a constitutional right to give advice and encouragement concerning Donaldson's suicide.

DISCUSSION

I.

Donaldson wishes to achieve cryogenic suspension of his body, premortem, before his relentlessly advancing brain tumor destroys the quality and purpose of his life, reduces him to a vegetative state, and makes futile his hope for reanimation.

Whatever Donaldson's motivations are for dying, however, he argues his right to privacy and self-determination are paramount to any state interest in maintaining life. He reasons the state has no logical, secular motive to demand his continued existence, given his medical condition and prognosis. Therefore, there should be no balancing of interests where the state has only an abstract interest in preserving life in general as opposed to Donaldson's specific and compelling interest in ending his particular life.

Donaldson rests his contentions upon judicial decisions declaring the right of a competent patient, his guardian, or surrogate to refuse medical treatment or procedures that sustain life. (Cruzan v. Director, Mo. Health Dept. (1990) 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224; Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 225 Cal.Rptr. 297; Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 209 Cal.Rptr. 220; Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 195 Cal.Rptr. 484.)

A person has a constitutionally protected interest in refusing unwanted medical treatment or procedures. (Cruzan v. Director, Mo. Health Dept., supra, 497 U.S. 261, ----, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224, 241; People v. Adams (1990) 216 Cal.App.3d 1431, 1438, 265 Cal.Rptr. 568; Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 206, fn. 20, 245 Cal.Rptr. 840; Bouvia v. Superior Court, supra, 179 Cal.App.3d 1127, 1141, 225 Cal.Rptr. 297.) This constitutionally secured right derives from a liberty interest found in the Fourteenth Amendment to the United States Constitution (Cruzan, supra, 497 U.S. at p. ----, fn. 7, 110 S.Ct. at p. 2851, fn. 7, 111 L.Ed.2d at p. 242, fn. 7) and, in California, from the right of privacy in article 1, section 1 of the California Constitution. (Adams, supra, 216 Cal.App.3d at p. 1438, 265 Cal.Rptr. 568; Bouvia, supra, 179 Cal.App.3d at p. 1137, 225 Cal.Rptr. 297.) The right of patient autonomy has been described as "the ultimate exercise of one's right to privacy." (Bouvia, supra, at p. 1144, 225 Cal.Rptr. 297.)

This right to medical self-determination also derives from the legal doctrine of informed consent to medical treatment. (Cruzan v. Director, Mo. Health Dept., supra, 497 U.S. 261, ----, 110 S.Ct. 2841, 2847, 111 L.Ed.2d 224, 236; Barber v. Superior Court, supra, 147 Cal.App.3d 1006, 1015, 195 Cal.Rptr. 484.) A logical corollary of the doctrine is that a patient possesses the right not to consent and to refuse treatment. (Ibid.)

Whether asserting rights resting upon the United States or California Constitution or the decisional law of informed consent, a patient may refuse treatment even though withholding of treatment creates a life-threatening situation. (Bouvia v. Superior Court, supra, 179 Cal.App.3d 1127, 1137, 225 Cal.Rptr. 297--28-year-old quadriplegic, cerebral palsy victim may assert her constitutional right to refuse nasogastric hydration and nourishment.) Moreover, the right to refuse treatment or life-sustaining measures is not limited to those who are terminally ill. (Id., at p. 1138, 225 Cal.Rptr. 297--patient had life expectancy of 15 to 20 additional years; Bartling v. Superior Court, supra, 163 Cal.App.3d 186, 192-193, 209 Cal.Rptr. 220--patient was seriously ill and ventilator-dependent but not "terminal.")

To determine whether Donaldson has suffered a violation of his constitutional rights, we must balance his interests against any relevant state interests. (Cruzan v. Director, Mo. Health Dept., supra, 497 U.S. 261, ----, 110 S.Ct. 2841, 2852, 111 L.Ed.2d 224, 242; People v. Adams, supra, 216 Cal.App.3d 1431, 1438, 265 Cal.Rptr. 568.) Pertinent state interests include preserving human life, preventing suicide, protecting innocent third parties such as children, and maintaining the ethical integrity of the medical profession. (Adams, supra, at p. 1438, 265 Cal.Rptr. 568; Alexander, Death by Directive (1988) 28 Santa Clara L.Rev. 67, 78 (hereafter Death by Directive ).) The state may also decline to assess the quality of a particular human life and assert an unqualified general interest in the preservation of human life to be balanced against the individual's constitutional rights. (Cruzan, supra, 497 U.S. at p. ----, 110 S.Ct. at p. 2853, 111 L.Ed.2d at p. 244.)

Decisions regarding the right to refuse life-sustaining treatment, including hydration and nourishment, distinguish between artificial life support in the face of inevitable death and self-infliction of deadly harm (suicide). (Bartling v. Superior Court, supra, 163 Cal.App.3d 186, 196, 209 Cal.Rptr. 220.) Likewise, decisions hold...