Fiori, In re

• Decision Date: 17 January 1995
• Parties: , 63 USLW 2484 In re Daniel Joseph FIORI, an Adjudged Incompetent. Appeal of PENNSYLVANIA ATTORNEY GENERAL.
• Court: Pennsylvania Superior Court

Page 1350

652 A.2d 1350

438 Pa.Super. 610, 63 USLW 2484

In re Daniel Joseph FIORI, an Adjudged Incompetent.

Appeal of PENNSYLVANIA ATTORNEY GENERAL.

Superior Court of Pennsylvania.

Argued Sept. 30, 1994.

Filed Jan. 17, 1995.

Sue A. Unger, Philadelphia, for appellant.

John N. Schaeffer, Doylestown, for Rosemary Sherman, participating party.

Robert B. Hoffman, Harrisburg, for amicus curiae PA Med. Soc.

Alan Meisel, Pittsburgh, for Amicus Curiae, University of Pittsburgh Med. Ctr.

Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, BECK, KELLY and POPOVICH, JJ.

BECK, Judge.

This appeal requires that we decide whether life sustaining treatment in the form of a gastrostomy tube should be removed from a patient who for almost twenty years has been in a persistent vegetative state with no cognitive powers and no chance of recovery. We agree with the trial court that the life sustaining treatment should be terminated and, therefore, affirm the trial court.

We conclude that consent of a close family member along with approval of two qualified physicians is sufficient to terminate life sustaining treatment to a person in a long-term persistent vegetative state without court involvement. We further emphasize that our decision today is limited to the category of cases where the patient is in a persistent vegetative state with no cognitive power and no chance of recovery where such patient has not previously expressed a view as to whether life sustaining treatment should be terminated. ¹

The facts giving rise to this case as well as all such termination of life sustaining treatment cases are tragic. Daniel Joseph Fiori, the patient whose future is at issue, is 43 years old. As a result of two successive incidents, one in 1972 when Mr. Fiori was twenty years old and one in 1976, Mr. Fiori was rendered comatose. Since 1976, Mr. Fiori has been in a neurologic condition known as a persistent vegetative state. In Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), the United States Supreme Court provided the following well-accepted description of a persistent vegetative state:

Vegetative state describes a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heart beat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low level conditioned responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner.

Id. at 267, n. 1, 110 S.Ct. at 2846, n. 1.

In other words, although Mr. Fiori's body is alive and may well stay alive for years, his cognitive function has been so thoroughly destroyed that he does not know he is alive. He feels no pain and he feels no pleasure. Thus, although he realizes no pain from the presence of the gastrostomy tube, he would equally realize no pain if it were withdrawn. There is no dispute in this case that this is Mr. Fiori's medical condition, and there is also no dispute that his condition will never improve.

Mr. Fiori has for years been a patient at the Mayo Nursing and Convalescent Center in Philadelphia and has received excellent care. Since he has no capacity for voluntary muscular movement, including swallowing, he is provided his medications, fluids and nutrition through a tube surgically inserted in his stomach called a gastrostomy tube. His mother, Rosemarie Sherman, who was appointed the guardian of Mr. Fiori's person by court order entered in 1980, has been devoted to him throughout his ordeal. She visits him several times every day, supervises his nursing care and personally provides him with the supplies necessary to insure that his care is the very best.

In February 1992, Mrs. Sherman determined that her son's treatment, i.e. the gastrostomy tube, should be terminated. The nursing home refused to comply with her request without a court order and she filed a petition in the Court of Common Pleas for Bucks County requesting an order directing the nursing home to terminate the treatment. The Attorney General appeared in the proceeding and, pursuant to its request, an independent medical expert was appointed to examine Mr. Fiori. The trial court took testimony from Mrs. Sherman and from a neurologist who had examined Mr. Fiori. The court also considered the report of the independent medical expert. The evidence revealed that prior to Mr. Fiori's injuries he had never specifically commented on how he would wish to be treated if he were in a persistent vegetative state or otherwise rendered incompetent. However, his mother testified that based on her understanding of her son and his attitude toward life while he was competent her son would no longer wish to be kept alive in his present condition.

The trial court found that it had insufficient evidence to determine what Mr. Fiori's own decision concerning his treatment would be if he were competent. Thus, the court applied what it termed an "objective standard," which it described as follows:

If the exercise of the right [to self-determination] is to be maintained where no expression has been made by an incompetent patient as to treatment, it must take place within the context of an analysis which seeks to implement what is in that person's best interests by reference to objective societally shared criteria.... '[I]n assessing whether a procedure or course of treatment would be in a patient's best interests, the decision maker must taken into account such factors as the relief of suffering, the preservation or restoration of functioning, and the quality as well as extent of life sustained.'

Trial Court Op. at 8 (quoting Foody v. Manchester Memorial Hospital, 40 Conn.Sup. 127, 482 A.2d 713, 721 (Ct.1984).

Finding this standard satisfied, the trial court entered a Final Decree authorizing the discontinuance of the gastrostomy tube and all other life sustaining procedures.

The Attorney General appealed, and raises the following issues for our review: ²

1. Whether the orphans' court erred by failing to appoint a guardian ad litem to represent a comatose patient's interest in a proceeding to determine whether life support should be withdrawn?

2. Whether the orphans' court erred by authorizing a process which would result in the patient's death without requiring clear and convincing evidence that he would wish to have life sustaining medical treatment withdrawn?

We need not separately address the Attorney General's first issue. Since we ultimately hold that no legal proceedings are necessary in the great majority of cases involving the termination of life sustaining treatment to persons in Mr. Fiori's condition, and that no such proceeding was actually necessary in this case, obviously we see no need for the appointment of a guardian ad litem.

The Attorney General's basic legal position on the issue presented is that life sustaining treatment should not be terminated in the case of Mr. Fiori or any other person without clear and convincing evidence that termination of treatment would be the choice that person would make if he or she were competent. Moreover, the Attorney General would have this court require that the only evidence of the patient's wishes that will meet this evidentiary standard is a prior express statement by the patient. Finally, the Attorney General would require that a court proceeding be conducted in every such case so that the determination of whether the above-stated test had been met could be made by the court.

We cannot adopt the Attorney General's suggested approach to the crucially important issue presented by this case. At the outset, we note that the Attorney General frames the issue far too broadly. The discussion of this case should be limited to its facts, i.e., what standard should be applied in the case of a once competent adult who is now in a persistent vegetative state and who, when competent, had not directly expressed a view on whether he would want life sustaining treatment to be terminated under these circumstances, but who has a close relative who believes he would want his treatment terminated. The development of the law as to other types of cases should wait until another day. These cases arise from greatly differing factual scenarios. Termination of treatment issues arise in cases involving never competent adults, once competent and now incompetent and terminally ill adults, never competent children who have been severely impaired since birth, and adults like Mr. Fiori who, although once competent, no longer are and who, while not terminally ill, are in a persistent vegetative state. As to life sustaining measures, in some instances the patient will have clearly articulated his or her view; in others the patient will have expressed a view, but it has not been clearly articulated; and, in others, the patient will not have expressed any view. It is both inappropriate and inadvisable to attempt to deal with each of these possible scenarios outside of the specific matrix of facts and considerations each such case might present. See, e.g., Matter of Peter, 108 N.J. 365, 529 A.2d 419 (1987) (setting standards for terminating treatment of elderly nursing home patients in a persistent vegetative state and distinguishing such cases from those involving other types of patients in distinct medical situations); Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) (distinguishing standards applicable to terminally ill elderly patient from that of younger persistent vegetative state patient).

The issue we are called upon to decide relates only to the termination of life sustaining treatment to a once competent, now incompetent, adult in a persistent vegetative state who has not clearly expressed a view on whether he would want life sustaining measures to continue, but whose close relative believes that he would now want his...