Fiori, In re

• Decision Date: 02 April 1996
• Citation: 673 A.2d 905,543 Pa. 592
• Parties: In re Daniel Joseph FIORI, an adjudged incompetent. Appeal of COMMONWEALTH of Pennsylvania, Attorney General.
• Court: Pennsylvania Supreme Court

Page 905

673 A.2d 905

543 Pa. 592

In re Daniel Joseph FIORI, an adjudged incompetent Appeal of COMMONWEALTH of Pennsylvania, Attorney General.

Supreme Court of Pennsylvania.

Argued April 25, 1995.

Decided April 2, 1996.

[543 Pa. 596] Sue Ann Unger, Philadelphia, for Commonwealth of Pennsylvania, Attorney General.

[543 Pa. 597] Robert B. Hoffman, Reed Smith Shaw & McClay, for Rosemarie Sherman.

James J. Wankmiller, Philadelphia, for Geriatric & Medical Services.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice:

This is an appeal by allowance from the opinion and order of the Superior Court affirming the judgment entered by the Court of Common Pleas of Bucks County, Orphans Court Division. We granted allowance of appeal to decide whether a close relative, with the consent of two physicians but without court involvement, may remove life sustaining treatment from an adult relative who is in a persistent vegetative state where that adult has left no advance directives. For the following reasons, we affirm.

As with all cases where this issue is presented, the facts here are tragic. Daniel Joseph Fiori, the nominal subject of this appeal, suffered severe head injuries in 1972 when he was approximately twenty years old. He regained consciousness after this injury, but his cognitive abilities were severely limited. In 1976, Fiori suffered a second head injury while being treated at a Veterans Administration hospital ("VA"). Fiori never regained consciousness after this second injury, and he was diagnosed as being in a persistent vegetative state ("PVS"). The term "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.

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 267, n. 1, 110 S.Ct. 2841, 2846, n. 1, 111 L.Ed.2d 224 (1990) (citing In re Jobes, 108 N.J. 394, 403, 529 A.2d 434, 438 (1987)). ¹ This state has been described as a "twilight zone of suspended animation where death commences while life, in some form, continues." Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 211, 741 P.2d 674, 678 (1987).

In this condition, all Fiori's cognitive brain functions were inoperative. He felt no pain or pleasure, and he was unable to communicate with others. Since Fiori had no capacity for voluntary muscular movements, his life functions were maintained by the provision of medications, fluids, and nutrition through a gastrostomy tube, a tube which is surgically inserted in the stomach. ² There was no hope of Fiori ever recovering.

After Fiori's second accident, his mother, Rosemarie Sherman, was appointed guardian of his person by court order entered in 1980. In February of 1992, Sherman requested that the Mayo Nursing Center, which was the nursing home caring for Fiori, remove his gastrostomy tube. The nursing home refused to comply with her request without a court order; ³ Sherman thus filed a petition in the Court of Common Pleas for Bucks County requesting an order directing the nursing home to terminate treatment. The Attorney General appeared in the proceedings and, pursuant to his request, an independent medical expert was appointed.

The opinions of two neurologists, one retained by Sherman and the other the court appointed independent expert, were entered into evidence. Both agreed that within a reasonable degree of medical certainty, Fiori's condition would not improve and he would remain in a PVS as he had done for the last seventeen years. They also stated that existing medical technology could continue to support Fiori's life functions so that his life span could extend for another ten to twenty years.

Sherman testified that her son had never spoken to her about his wishes should he ever lapse into a PVS. Nevertheless, based on her son's "love of life," Sherman was of the opinion that her son would wish the gastrostomy tube to be removed.

The trial court granted Sherman's motion, and the Attorney General appealed.

The Superior Court, sitting en banc, affirmed. The court determined that the decision to remove life sustaining treatment from an adult in a PVS who did not leave directions as to the maintenance of life support may be made by a close family member and two qualified physicians without court approval.

The Attorney General filed a petition for allowance of appeal on January 23, 1995. Prior to the granting of allowance of appeal, Fiori died of pneumonia. ⁴

In this appeal, we must determine the procedures and guidelines for removal of life sustaining treatment from a PVS patient where the patient, prior to his incompetency, failed to express his desires on such treatment. Specifically, we must determine who may make the decision for the PVS patient, what standard the decision-maker should employ, and whether the court must approve that decision.

The starting point for our analysis is an examination of the right we are to protect--the right to self-determination in regard to the acceptance or rejection of life sustaining medical treatment. Although some courts have noted constitutional bases for such a right ⁵, we choose to follow the example set by the courts which have relied solely on the common-law basis for the right to self-determination, and have eschewed an analysis based upon constitutional principles. See, e.g., In re Estate of Longeway, 133 Ill.2d 33, 44-45, 139 Ill.Dec. 780, 785, 549 N.E.2d 292, 297 (1989); Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1992). We chose to follow this example as it allows us to adhere to the sound tenet of jurisprudence that courts should avoid constitutional issues when the issue at hand may be decided upon other grounds. Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 1419-1420, 91 L.Ed. 1666 (1947). ⁶

The right to refuse medical treatment has deep roots in our common law. More than a century ago, the United States Supreme Court recognized that "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person...." Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).

From this right to be free from bodily invasion developed the doctrine of informed consent. See Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) (Cardozo, J.) The doctrine of informed consent declares that absent an emergency situation, medical treatment may not be imposed without the patient's informed consent. Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992). A logical corollary to this doctrine is the patient's right, in general, "to refuse treatment and to withdraw consent to treatment once begun." Mack, 329 Md. at 210, 618 A.2d at 755. Courts have unanimously concluded that this right to self-determination does not cease upon the incapacitation of the individual. See, e.g., In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983); Mack, supra; In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).

This right, however, is not absolute. The right of the patient to abstain from medical treatment must be balanced against interests of the state. The four state interests most commonly recognized by the courts are: 1) protection of third parties; 2) prevention of suicide; 3) protection of the ethical integrity of the medical community; and 4) preservation of life. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 740-741, 370 N.E.2d 417, 425 (1977); see also In re Conroy, 98 N.J. 321, 348-349, 486 A.2d 1209, 1223 (1985).

In examining the state's interest in protecting third parties, the primary focus is on whether the patient has dependents who would be left emotionally and financially bereft were the patient to refuse medical treatment. See, e.g., In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); Saikewicz, supra. In Fiori's situation, there was no need to protect third party interests as he did not have any dependents. Thus, this state interest is not applicable here.

Furthermore, the prevention of suicide was not a consideration here. In removing life sustaining measures, the natural death process is allowed to continue; death would not have been the result of a self-inflicted injury, as is the case with suicide. See Conroy, 98 N.J. at 351, 486 A.2d at 1224.

Also, the ethical integrity of the medical community would not have been compromised had Sherman's request been honored. As noted by the Superior Court below, amicus curiae, the Pennsylvania Medical Society, had stated that the withdrawal of life-support from Fiori would not compromise medical ethical principles. Amicus asserted that the medical community supports the withdrawal of life sustaining treatment, including the provision of nutrition and fluid, when there is no hope of recovery and where that decision is made by a surrogate decision maker who is attempting to effectuate the wishes of the patient. Brief of the Pennsylvania Medical Society to the Superior Court at p. 16.

Lastly, we focus on the state's interest in preserving life. Of these four interests, this one is the most significant. Rasmussen, 154 Ariz. at 216, 741 P.2d at 683. It encompasses the separate, but related, concerns of preserving the life of the particular individual and also safeguarding the sanctity of all life. Conroy, 98 N.J. at 348, 486 A.2d at 1223. The state's interest in preserving life is certainly applicable in situations such as Fiori's. Yet, this interest does not outweigh the PVS patient's interest in self-determination. The state's interest in maintaining the PVS...