GRAY BY GRAY v. Romeo

• Citation: 697 F. Supp. 580
• Decision Date: 17 October 1988
• Docket Number: Civ. A. No. 87-0573B.
• Parties: Marcia GRAY by her guardian and husband H. Glenn GRAY v. Thomas D. ROMEO in his capacity as Director of the Department of Mental Health, Retardation and Hospitals and the State of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

697 F. Supp. 580

Marcia GRAY by her guardian and husband H. Glenn GRAY v. Thomas D. ROMEO in his capacity as Director of the Department of Mental Health, Retardation and Hospitals and the State of Rhode Island.

Civ. A. No. 87-0573B.

United States District Court, D. Rhode Island.

October 17, 1988.

Linda S. MacDonald, East Greenwich, R.I., for plaintiff.

John L.P. Breguet, Chief Legal Officer, Dept. of Mental Health, Retardation, and Hospitals, Cranston, R.I., for defendants.

Paul R. Tremblay, Boston College Legal Assistance Bureau, Waltham, Mass., guardian ad litem.

Joseph A. Kelly, Providence, R.I., James Bopp, Jr., Mary M. Nimz, Thomas J. Marzen, Indianapolis, Ind., for amicus curiae, Ethics and Advocacy Task Force of the Nursing Home Action Group.

Dante J. Giammarco on behalf of Philip D. Moran, Salem, Mass., for amicus curiae, Nat. Doctors For Life, Inc. and Nat. Association of Prolife Nurses, Inc.

Kevin A. McKenna, Providence, R.I., Peter W. Gubellini, Fleming, Boyle & Gubellini, Wellesley Hills, Mass., for amicus curiae, Rhode Island Nurses For Life and Paul C. Aspirino III and Geraldine Ann McGarry.

Fenella Rouse, M. Rose Gasner and Elena M. Cohen, Staff Attys., New York City, Charles J. Moore, Providence, R.I. (Richard Wasserman, of counsel), for amicus curiae, Soc. for the Right to Die, Inc.

OPINION

FRANCIS J. BOYLE, Chief Judge.

The Plaintiff Glenn Gray seeks a declaratory judgment authorizing him to direct the removal of a feeding tube and further life support administered to his wife Marcia Gray, who is presently a patient at Rhode Island Medical Center, General Hospital. The effect of removal of the feeding tube or closing off of the feeding tube would be to bring about the death of Marcia Gray.

Marcia Gray was born April 26, 1939. As a child she was both thoughtful and bright. She played the piano and when in high school played the organ in a local Protestant church although she was raised as a Roman Catholic. In 1961 she married her husband Glenn Gray. In the same year she received a Bachelor's Degree from the University of Rochester. She and her husband had two children, Brian, now age twenty-two and Karen, age twenty. In 1973 she obtained a Master's Degree in Library Science from the University of Rhode Island. She has not actively pursued her own career. The Guardian Ad Litem appointed by this Court described Mrs. Gray as follows:

Marcia was described by all as an active, vibrant and very happy woman. She jogged regularly, almost daily on a four mile route near her home by the ocean. She read avidly, both fiction and nonfiction, loved classical music, and continued to play the piano. She spent much of her time with her children, and she had a special love for her garden. She is described as somewhat shy, quite thoughtful and deep, and as very private. She was also described as a proud person who was meticulous about her appearance and how she presented to others.... Marcia Gray is a woman who was and is very much loved by her family.

On Saturday, January 4, 1986, Marcia Gray went shopping with her husband Glenn Gray. Although she was a healthy and energetic woman who was rarely, if ever, ill, she developed a sudden and severe headache with serious pain. Immediately brought to South County Hospital, she lost consciousness. A CAT scan showed evidence of significant blood within the right temporal lobe of the brain, evidence of a blood vessel rupture. She was taken by ambulance to Rhode Island Hospital and there Paul Welch, M.D., a neurologist, confirmed a major cerebral hemorrhage. Her family, Glenn Gray, Brian Gray, and Karen Gray were then consulted by Doctor Welch and they consented to a brain operation in an effort to save Marcia Gray's life. A right frontal craniotomy was performed which involved removal of a section of her skullbone and the evacuation of a blood clot which was present in the brain. Surgery established that Marcia Gray had suffered a massive hemorrhage within her cerebrum and within the meninges, the membrane which covers the brain. There was severe brain damage to the right cerebral hemisphere. She did not regain consciousness after surgery and has not regained consciousness to this date. On January 16, 1986 with the consent of Glenn Gray a gastrostomy was performed which involved the creation of a hole in the abdominal wall and into the stomach through which a tube (G-tube) is inserted by which nutrition and hydration may be directly provided to the stomach. Also, an endotracheal tube was inserted in her trachea for the purpose of removing mucus. On February 6, 1986, she developed hydrocephalus, a build up of excessive cerebrospinal fluid in the brain. Further surgery was performed at that time to insert a shunt to drain the fluid. Since that date and June 10, 1986 four separate procedures were applied to correct malfunctions of the shunt.

She developed an infection in the cranial wound which led to the permanent removal of the cranial bone plate. She has as a result a sunken crater on the right side of her head caused by the removal of the bone and the removal and deterioration of brain matter on her right side. On June 24, 1986 she was transferred from Rhode Island Hospital to Rhode Island Medical Center, General Hospital and has remained there.

The court appointed Guardian Ad Litem described her condition as follows:

Marcia Gray has been diagnosed as being in "persistent vegetative state" (PVS). PVS is a type of comatose state in which the cerebral functioning has ceased but in which the brain stem functioning is fully or partially intact. The brain stem controls primitive reflexes, including heart activity, breathing, the sleep/wake cycle, reflexive activity in upper and lower extremities, some swallowing motions and eye movements. Marcia shows signs of each of these activities. The cerebrum, on the other hand, controls sensation and voluntary and conscious activities. Marcia's cerebrum has been damaged severely, and as a result she displays no voluntary or conscious movements, nor does she display any awareness or sensation. This combination of reflexive activity in the absence of sensation or conscious activity is characteristic of PVS. PVS is generally a permanent condition.

At the present time Marcia is fed a liquid formula every four hours which passes through the G-tube and water is provided by the tube in-between feedings. In spite of her "comfort only status" as a patient she is in need of constant attention.

On May 20, 1987, the family, including her husband, her two children, her mother and her sister-in-law requested that her attending physician order that feeding be stopped and that Marcia Gray be permitted to die. The family's request was denied by the hospital. The neurosurgeon who performed the craniotomy and the consulting physician¹ hired by the family agree that there is no "reasonable likelihood of returning to a conscious state" and that there is "no chance" of Maria Gray's recovery. In addition, Mrs. Gray's treating physician since 1986 at the General Hospital states that her chances of recovery to conscious state are "close to zero." Her neurosurgeon expressed the opinion that Marcia Gray's brain stem functions are primarily intact, although not entirely, but she exhibits no conscious, cognitive, sentient responses which would indicate functioning cerebral hemisphere activity. He suggests that her responses to noxious stimuli was of questionable significance given the primitive nature of the startle reflex. He does not believe that she will experience hunger, thirst or pain should the feeding be stopped. He states that because her conscious faculties have ceased to function, she would not experience, in his opinion, that sensory recognition. The consulting physician engaged by Mrs. Gray's family also believes strongly that there is no sensation and hence no pain, thirst, or hunger recognition.

The Guardian Ad Litem has reported to the Court that the hospital as an institution is opposed to denying Mrs. Gray nutrition and hydration because it is tantamount to euthanasia, inconsistent with the physician's role as safekeeper of his or her patient's well being, the fear that the hospital has of civil or criminal responsibility and the reputation which the hospital has an institution for long-term care and the treatment of chronic care patients. Those professional health care personnel who administer to Mrs. Gray's needs presently are unanimous in their adamant opposition to the proposal to remove nutrition and hydration.

Mrs. Gray's family, including her husband, her two children, her mother and her sister-in-law are convinced that it would be her desire not to be sustained with artificial measures if her life were otherwise hopeless. The Guardian Ad Litem reports conversations between Mr. and Mrs. Gray concerning the plight of Karen Ann Quinlan. See In re Quinlan, 70 N.J. 10, 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). Mr. Gray states that on one occasion Mrs. Gray required that he promise not to keep her alive by artificial means should she ever be in a circumstance similar to Karen Ann Quinlan. The same sentiments were also expressed to him on other occasions by his wife. Her sister-in-law, who was at the time Director of Social Services of a hospice in Chapel Hill, North Carolina, states that Mrs. Gray discussed the plight of Karen Ann Quinlan and was critical of the fact that she was fed artificially and said that she would not want a respirator or a feeding tube if she were in the same circumstances.

This action has been brought on behalf of Marcia Gray by her husband, Glenn Gray, who was appointed guardian of her Person and Estate by the Probate Court, State of Rhode Island. The Plaintiff seeks under the provisions of 42 U.S.C. § 1983 first a declaration that the actions of the Defendants are in violation of the rights secured to Marcia Gray by the...