Estate of Longeway, In re

• Decision Date: 13 November 1989
• Docket Number: No. 67318,67318
• Parties: , 139 Ill.Dec. 780, 58 USLW 2306 In re ESTATE OF LONGEWAY (Bonnie Keiner, Appellant, v. Community Convalescent Center, Appellee).
• Court: Illinois Supreme Court

Page 292

549 N.E.2d 292

133 Ill.2d 33, 139 Ill.Dec. 780, 58

USLW 2306

In re ESTATE OF LONGEWAY

(Bonnie Keiner, Appellant, v. Community Convalescent Center, Appellee).

No. 67318.

Supreme Court of Illinois.

Nov. 13, 1989.

Rehearing Denied Jan. 29, 1990.

Rev. Eugene P. Parnisari, Naperville, for appellant.

Thomas J. Cisar, Peter P. Gaddy and Mary A. Jennings, Cisar & Gaddy, Oak Brook, for appellee.

John Grotto, Grotto & Van Der Molen, Wheaton, for guardian ad litem.

Fenella Rouse, Elena N. Cohen and M. Rose Gasner, of New York City (Richard Wasserman, Zavin, Sinnreich & Wasserman, New York City, of counsel), and Lawrence R. Samuels, Ross & Hardies, Chicago, for amicus curiae Society for the Right to Die, Inc.

Kirk B. Johnson, Edward B. Hirshfeld and Terrie A. Rymer, Chicago, and Carter G. Phillips, Mark E. Haddad and Joseph R. Guerra, Sidley & Austin, Washington, D.C., for amicus curiae American Medical Association.

Justice RYAN delivered the opinion of the court:

Bonnie Keiner, daughter and guardian of the estate and person of Dorothy M. Longeway, petitioned the circuit court of Du Page County to enter an order permitting her to withdraw the artificially administered nutrition and hydration currently sustaining her mother. Community Convalescent Center, the nursing facility where Longeway now resides, intervened and filed a motion to dismiss. The court granted this motion, and we agreed to hear a direct appeal of this dismissal pursuant to Supreme Court Rule 302(b) (107 Ill.2d R. 302(b)). We reverse and remand.

Beginning in 1976, Dorothy M. Longeway suffered a series of strokes and other illnesses which eventually rendered her unconscious. According to the guardian's petition, Longeway, now 76 years old, has lost all personality, memory, purposeful action, social interaction, thought and emotion, due to severe brain damage. Her prognosis is very poor; although she is not medically "brain dead," the neurological damage is so extensive that she will never regain consciousness. Longeway cannot communicate, but opens her eyes and responds to verbal commands and painful stimuli. She breathes without assistance, but cannot chew or swallow, and requires a surgically implanted gastrostomy tube to receive food and water.

The guardian's petition alleged that Longeway, while still conscious and competent, indicated on several occasions that she did not wish to be kept alive by a machine or device, and would rather die naturally than linger. She did not, however, execute a living will (see Ill.Rev.Stat.1987, ch. 110 1/2, par. 701 et seq.) or a health care power of attorney (see Ill.Rev.Stat.1987, ch. 110 1/2, par. 804-1 et seq.). The guardian urged that the gastrostomy tube be withdrawn from Longeway, seeking this relief in two counts: that the guardian be allowed to substitute her judgment for that of her incompetent mother or, alternatively, that she be allowed to make this decision as being in the best interests of her mother.

The circuit court summarily dismissed the "best interests" count, but set a hearing date on the "substituted judgment" count. The court may have felt that substituted judgment was an acceptable procedure for dealing with terminally ill incompetent patients because of the recent appellate court decision in In re Estate of Prange (1988), 166 Ill.App.3d 1091, 117 Ill.Dec. 595, 520 N.E.2d 946. This court subsequently vacated the appellate court decision in Prange and dismissed the appeal in this court after the patient's death. (In re Estate of Prange (1988), 121 Ill.2d 570, 122 Ill.Dec. 805, 527 N.E.2d 303). When informed of our action in Prange, the circuit court then cancelled the scheduled hearing and dismissed the substituted-judgment count. The guardian appeals the dismissal of both counts.

The issue in this case is whether the guardian of an incompetent, seriously ill patient may exercise a right to refuse artificial nutrition and hydration on behalf of his ward and, if so, how this right may be exercised.

A number of State courts have addressed the question of whether life-sustaining measures may be withdrawn from incompetent patients: Arizona (Rasmussen v. Fleming (1987), 154 Ariz. 207, 741 P.2d 674), California (Barber v. Superior Court (1983), 147 Cal.App.3d 1006, 195 Cal.Rptr. 484), Connecticut (Foody v. Manchester Memorial Hospital (Super.1984), 40 Conn.Supp. 127, 482 A.2d 713), Delaware (Severns v. Wilmington Medical Center, Inc. (Del.Ch.1980), 425 A.2d 156), Florida (John F. Kennedy Memorial Hospital, Inc. v. Bludworth (Fla.1984), 452 So.2d 921), Georgia (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), Louisiana (In re P.V.W. (La.1982), 424 So.2d 1015), Maine (In re Gardner (Me.1987), 534 A.2d 947), Massachusetts (Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 370 N.E.2d 417), Minnesota (In re Torres (Minn.1984), 357 N.W.2d 332), Missouri (Cruzan v. Harmon (Mo.1988), 760 S.W.2d 408), New Jersey (In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647), New York (In re Storar (1981), 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266), Ohio (Leach v. Akron General Medical Center (1980), 68 Ohio Misc. 1, 426 N.E.2d 809), and Washington (In re Hamlin (1984), 102 Wash.2d 810, 689 P.2d 1372). In addition, at least one Federal case concerned this issue. (Gray v. Romeo (D.R.I.1988), 697 F.Supp. 580.) With the exception of Missouri, the courts in the cases cited above are unanimous in allowing the withdrawal of life-sustaining medical procedures under appropriate circumstances. At least eight State courts have considered specifically the removal of nutrition and hydration: California (In re Drabick (1988), 200 Cal.App.3d 185, 245 Cal.Rptr. 840), Florida (Corbett v. D'Alessandro (Fla.App.1986), 487 So.2d 368), Maine (In re Gardner (Me.1987), 534 A.2d 947), Massachusetts (Brophy v. New England Sinai Hospital, Inc. (1986), 398 Mass. 417, 497 N.E.2d 626), Missouri (Cruzan v. Harmon (Mo.1988), 760 S.W.2d 408), New Jersey (In re Jobes (1987), 108 N.J. 394, 529 A.2d 434), New York (Delio v. Westchester County Medical Center (1987), 129 A.D.2d 1, 516 N.Y.S.2d 677; but see In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886), and Washington (In re Grant (1987), 109 Wash.2d 545, 747 P.2d 445). Again, with the exception of Missouri, and New York in In re O'Connor, all the jurisdictions cited have permitted artificial nutrition and hydration to be withdrawn from certain types of patients.

The courts which have grappled with the issue of "the right to die," or as it is often termed, "the right to refuse life-sustaining medical treatment," have found themselves thrust into a realm where law, medicine, and religion intersect. Advancements in medical science have redefined death from a cessation of pulse and respiration (Black's Law Dictionary 488 (4th ed. 1968)) to a cessation of brain activity (see In re Haymer (1983), 115 Ill.App.3d 349, 71 Ill.Dec. 252, 450 N.E.2d 940; Ill.Rev.Stat.1987, ch. 110 1/2, par. 302(b)). Hopelessly or terminally ill patients who in the past would have met with a swift end, now find that medical science can sustain them, near the threshold of death, but not yet across it. "Advances in this area are occurring with such rapidity that science has outstripped the ability of society to develop an ethical base for dealing with problems caused by new possibilities." (In re L.H.R. (1984), 253 Ga. 439, 445, 321 S.E.2d 716, 722.) The role of the judiciary in this area is an uncertain one. Frequently, the courts are not consulted at all. There is reliable information that for many years, members of a patient's family, together with doctors and clergy, have made decisions to withdraw life-sustaining equipment from incompetent, hopelessly ill patients without seeking judicial approval. (See In re Storar (1981), 52 N.Y.2d 363, 385, 420 N.E.2d 64, 75, 438 N.Y.S.2d 266, 277 (Jones, J., dissenting) (citing survey of physicians showing that 61% believe their colleagues practice euthanasia).) The judiciary is viewed as ill suited to resolve these situations which involve complex medical procedures, diverse religious views, and a need for quick decision-making.

The problem becomes more acute when dealing with artificial nutrition and hydration. Food and water are emotionally symbolic in that food and water are basic necessities of life, and the feeding of those who are unable to feed themselves is the most fundamental of all human relationships. (See In re Grant (1987), 109 Wash.2d 545, 559-60, 747 P.2d 445, 453.) Also, the removal of food and water causes death from dehydration, which can be an unpleasant experience, as one justice, in dissent, noted:

"Removal of the G tube would likely create various effects from the lack of hydration and nutrition, leading ultimately to death. Brophy's mouth would dry out and become caked or coated with thick material. His lips would become parched and cracked. His tongue would swell, and might crack. His eyes would recede back into their orbits and his cheeks would become hollow. The lining of his nose might crack and cause his nose to bleed. His skin would hang loose on his body and become dry and scaly. His urine would become highly concentrated, leading to burning of the bladder. The lining of his stomach would dry out and he would experience dry heaves and vomiting. His body temperature would become very high. His brain cells would dry out, causing convulsions. His respiratory tract would dry out, and the thick secretions that would result could plug his lungs and cause death. At some point within five days to three weeks his major organs, including his lungs, heart, and brain, would give out and he would die. The judge found that death by dehydration is extremely painful and uncomfortable for a human being. The judge could not rule out the possibility that Paul Brophy could experience pain in such a scenario. Paul Brophy's attending physician described death by dehydration as cruel and...