Foody v. Manchester Memorial Hosp.

• Decision Date: 06 March 1984
• Docket Number: No. 291586,291586
• Citation: 482 A.2d 713,40 Conn.Supp. 127
• Court: Connecticut Superior Court
• Parties: Kenneth FOODY et al. v. MANCHESTER MEMORIAL HOSPITAL et al. -New Britain at Hartford

Page 713

482 A.2d 713

40 Conn.Supp. 127

Kenneth FOODY et al. v. MANCHESTER MEMORIAL HOSPITAL et al.

No. 291586.

Superior Court of Connecticut,

Judicial District of Hartford-New Britain

at Hartford.

March 6, 1984.

Flaherty, Marder, Kallet & Meisler, Vernon, for plaintiffs.

Wiggin & Dana, New Haven, for named defendant and defendant Michael Gallagher.

Richard J. Lynch, Asst. Atty. Gen., for defendant atty. gen.

Carl Schuman, Asst. State's Atty., for defendant state's atty.

MARY R. HENNESSEY, Judge.

In this action, the court is asked to enjoin all attending physicians and Manchester Memorial Hospital personnel from continuing the use of life-sustaining systems calculated to continue the respiration and pulse of Sandra Foody. Additionally the court is asked to declare that the discontinuance of such systems shall not subject the attending physicians and hospital personnel to civil or criminal liability.

The plaintiffs, Kenneth and Ann Foody, are the parents of Sandra Foody. The plaintiff, Kenneth Foody, is the conservator of the person of Sandra Foody. Sandra Foody is a forty-two year old patient at Manchester Memorial Hospital. On December 15, 1983, Sandra Foody suffered a respiratory arrest resulting in severe hypothermia. She was taken by ambulance to the emergency room of the hospital where she was successfully resuscitated and intubated. She was admitted and placed on a respirator. She is semicomatose, unable to breathe without the respirator. The requested relief will, according to the medical testimony, have a determinative effect upon the life of Sandra Foody; it will, with reasonable certainty, result in her death within a matter of minutes.

This matter comes before the court by way of a hearing on the plaintiffs' complaint on February 21, 1984. The named defendants are the Manchester Memorial Hospital, its acting executive director, Sandra Foody's attending physician, the attorney general for the state of Connecticut, the state's attorney's office and Sandra Foody's guardian ad litem. The hearing covers both the temporary and permanent injunctive relief sought with the higher standard for the issuance of a permanent injunction governing the court in its determination.

On the basis of the evidence presented in this case, the court makes the following findings concerning Sandra Foody's medical condition. For the past twenty-four years Sandra Foody has been diagnosed as suffering from multiple sclerosis. During that period the disease has become progressively severe, and there have been no extended periods of remission. Her condition has steadily declined, and she has not been spared by the plateaus sometimes associated with multiple sclerosis. Her balance and vision were first affected. Eventually she was confined to her bed or wheelchair. She lost control over her motor functions and she has been declared legally blind. By December of 1983, Sandra could not sit up on her own, nor hold her head up. She could not speak so that others could understand. She could swallow, and showed response to noise. By December 15, 1983 her breathing became heavy and she had been yawning increasingly. On that day she developed respiratory arrest, became cyanotic and was unable to breathe on her own. Her father dialed the local emergency number after unsuccessfully trying to reach the family physician. A policeman arrived and administered mouth to mouth resuscitation prior to the arrival of the ambulance. She was rushed to Manchester Memorial Hospital emergency room where she was successfully resuscitated and intubated by the hospital staff. After admission she was placed on a respirator. A tracheostomy was performed to avoid trachea collapse. A tube was placed through the opening formed by the tracheostomy which was attached to the respirator. The body's reaction to the tube was an increase in secretions which the force of the respirator caused to enter the lungs. These secretions must be removed from Sandra's lungs by suction catheter at least three to four times per nursing shift. She receives nutrients through a nasogastric tube.

Sandra's condition is stable. She is semicomatose. Attempts to trigger a breathing reflex have failed. She must be turned by the hospital staff to prevent the development of sores, and each time she is turned the respirator must be shut off. An electroencephalogram taken on February 17, 1984 indicates the presence of brain waves but the results are very abnormal. It is thought that only her brain stem is functional. The brain stem controls the heartbeat, body temperature and some reflexive action. Her gag and grimace reflexes are present but her deep tendon reflexes and plantar responses are absent. Her pupils are only sluggishly reactive to light. Her gaze is fixed downward and to the right with some change as the head is rotated. She has perceived sleep patterns. She cannot see and it is believed that she cannot hear. Her eyes blink randomly and involuntarily. Tests show that she has no pain response. In all medical probability she has no cognitive function, i.e., her brain is incapable of synthesizing and understanding outside stimuli. Her condition is best described as awake but unaware. Her semicomatose state is not believed to be attributable to multiple sclerosis, but to an aspiration while eating, which produced acute respiratory arrest, causing insufficient oxygen to the brain.

Having shown no sign of improvement after two months of treatment, Sandra's condition is considered to be permanent and irreversible. Generally, recovery of consciousness is very unlikely for patients with hypoxia who remain comatose or in a persistent vegetative state for more than one month. See "Deciding to Forego Life-Sustaining Treatment, Ethical, Medical, and Legal Issues in Treatment Decisions," President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, March, 1983, Pr 40.8:Et 3/L 6 2/2, pp. 178-79 (hereinafter Commission Report). No diagnostic or therapeutic interventions are viewed as appropriate. The prognosis for improvement is considered hopeless. Sandra will require long-term care in a chronic care facility, connected to a respirator for the rest of her life. It is estimated that should the respirator be disconnected, brain death would occur after approximately ten minutes.

In addition to medical evidence, testimony was offered on the quality of Sandra's lifestyle prior to her being stricken with multiple sclerosis and the high degree of quality care which she received at home from her parents after the onset of the disease. Prior to her illness, Sandra was active in high school, playing in the school orchestra and working on the school newspaper. She was involved in scouting and church activities. After graduation she enrolled at Central Connecticut State College but withdrew after one semester because of her worsening health condition. After her eyesight failed she enjoyed talking book recordings and listening to the radio. During all the years of her confinement with multiple sclerosis, she rarely cried and was known by her parents to have only once verbalized a complaint, stating: "I have eyes but cannot see, I have legs but cannot walk." At no time has Sandra expressed an opinion on the use of extraordinary life-support systems on patients with no reasonable hope of recovery.

Finally, it is notable that Sandra Foody has no material estate. Her medical expenses are borne by insurance and by Title XIX. The coverage will not be exhausted. Her family, therefore, has no financial interest in the outcome of this proceeding.

The plaintiffs urge the court to authorize "the discontinuance of the extraordinary means being used" to maintain Sandra Foody's life. The legal basis offered for this request is the right to bodily self-determination.

The right to privacy, though not explicitly provided for in the constitution, arises from penumbras of specific guarantees in the bill of rights, specifically the first, third, fourth, fifth and ninth amendments. Griswold v. Connecticut, 381 U.S. 479, 484-85, 85 S.Ct. 1678, 1681-82, 14 L.Ed.2d 510 (1965). The constitutional right to privacy has been extended to include the right of the individual to be free from unwarranted governmental intrusion into matters affecting a person's fundamental rights. Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972). It encompasses the right of a patient to be free from unwanted infringements of bodily integrity, including medical treatment, in appropriate circumstances. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 739, 370 N.E.2d 417 (1977); In re Quinlan, 70 N.J. 10, 40, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976).

Apart from constitutional considerations, the individual right to self-determination has long been recognized at common law. In Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the court stated that "[n]o [legal] 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, free from all restraint or interference of others, unless by clear and unquestionable authority of law." The right of one's person is a right of complete immunity to be let alone. Id., 251-52. This right includes the right of a competent adult to refuse life-sustaining medical treatment. Matter of Fox, 102 Misc.2d 184, 203, 423 N.Y.S.2d 580 (1979), modified and aff'd sub nom., Matter of Eichner (Fox), 73 App.Div.2d 431, 426 N.Y.S.2d 517 (1980), modified, 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981); Erickson v. Dilgard, 44 Misc.2d 27, 252 N.Y.S.2d 705 (1962); In re Quackenbush, 156 N.J.Super. 282, 383 A.2d 785 (1978).

Ordinarily a person may assert only his own constitutional rights. Bell v. Planning & Zoning...