Guardianship of Barry, In re

• Decision Date: 27 January 1984
• Docket Number: No. 83-2230,83-2230
• Parties: In re GUARDIANSHIP OF Andrew James BARRY, a minor.
• Court: Florida District Court of Appeals

Page 365

445 So.2d 365

In re GUARDIANSHIP OF Andrew James BARRY, a minor.

No. 83-2230.

District Court of Appeal of Florida,

Second District.

Jan. 27, 1984.

E.J. Salcines, State Atty., and Joryn Jenkins and Claire L. Cours, Asst. State Attys., Tampa, for appellant.

Anthony B. Marchese, Tampa, for appellees Mark and Laura Barry.

Barbara Pankau of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for amicus curiae Women's Hosp.

SCHEB, Judge.

On appeal by the state, we review a trial court order authorizing removal of a life support system from Andrew James Barry, the infant son of Mark and Laura Barry. We affirm.

These proceedings were initiated by Mr. and Mrs. Barry, the child's natural parents. After their appointment as legal guardians of Andrew, they petitioned for approval to terminate the use of his life support system. They alleged that their child was in a chronic permanent vegetative coma, absent cognitive brain function, and terminally ill. Further, they alleged that Andrew had no independent respiratory function and, should the ventilator sustaining his life be removed, he would expire in a matter of hours. Their petition was accompanied by supporting affidavits of three physicians who had examined and attended the infant and who concurred in their decision.

A guardian ad litem, appointed by the court, filed a report concurring in the conclusion of the three physicians. He recommended that the parents' petition be granted on the assumption that the infant, if competent to make the decision on his own, would exercise his judgment to terminate the life support system. The state attorney, however, denied the allegations, demanded strict proof, and prayed that the petition be dismissed.

Counsel for the petitioners, the state, and the Humana-Women's Hospital where the child is an inpatient, appeared at an evidentiary hearing along with the guardian ad litem and the parents. The court heard testimony from the parents and from the three physicians.

At the conclusion of the hearing, the trial court took the matter under advisement. Three days later, on October 21, 1983, the court announced the following findings:

1. Andrew James Barry was born on December 25, 1982 and is approximately ten months old. He is presently at Women's Hospital, Tampa, Florida and is on a ventilator life support system in a permanent vegetative state with in excess of 90 per cent of his brain function gone and is without cognitive brain functioning. He has been on the ventilator life support system since about 36 hours following birth. However, death cannot be determined under the standard set forth in F.S. 382.085 because there has not been irreversible cessation of the functioning of the entire brain there being some minimal functioning in the brain stem. The child is terminally ill and even if the life support system was maintained he could not reasonably be expected to live much beyond two years. He has no independent respiratory functions and if the life support system is removed the child will die within an estimated one-half to two hours. His condition is permanent and irreversible.

2. Under the facts established in this case the ventilator life support system is an extraordinary life prolonging measure.

3. That the natural parents, legal co-guardians, have consulted with attending physicians, family members, grandparents and priests and each other and feel that the ventilator is an extraordinary measure and that the best interest of Andrew required that it be discontinued and removed.

4. The Court appointed Guardian Ad Litem for Andrew James Barry has filed a Report and concluded that if Andrew James Barry were competent to make such a decision his decision would be to terminate the life support systems. The Guardian Ad Litem has therefore recommended that the petition be granted.

5. The Office of the State Attorney advanced the interests of the State of Florida in obtaining a denial of the subject petition but this Court expressly finds that the interests of the State of Florida in having the petition denied are far outweighed by the facts in this case and Andrew James Barry's right to privacy notwithstanding the fact that such right is recognized on the basis of substituted judgment and in the absence of any evidence of intention. Satz v. Perlmutter, 379 So.2d 359 (Fla.) and 362 So.2d 160 (Fla.App.) and cases cited therein.

6. The standard set forth in F.S. 382.085 is not the exclusive standard for determining death or for the withdrawal of life support systems. John F. Kennedy Memorial Hospital v. Bludworth, 432 So.2d 611 at page 619 (Fla.App.).

7. The costs of care for Andrew James Barry have been and will continue to be fully covered by insurance. It was also established by the testimony of the doctors in this case that had they known at the time the respirator was first ordered what they now know the respirator would not have been ordered. Further, the possibility of legal or criminal liability prevented their termination of the life support at this time without Court Order.

On that same date the court entered an order authorizing the parents to cause the ventilator life support system to be terminated and to instruct the attending physicians not to furnish life-sustaining procedures thereafter, except for the sole purpose of alleviating the child's pain and suffering and to keep him comfortable and provide him with normal nutrition. Finally, the court ordered that no person acting in accordance with its order would be held civilly or criminally responsible.

This appeal by the state ensued, with the trial judge's order stayed pending resolution by this court.

This appeal vividly demonstrates the tragedy of a comatose infant with a severe birth defect being kept alive only by extraordinary medical measures. While this type of problem is not new, it is one that is viewed today from a new perspective as dramatic advances in medical technology have made it possible to sustain life in many infants who would otherwise have died at birth. As a consequence, parents and medical personnel now face some very real moral and ethical judgments on the issue of life and death.

The law has begun to respond to this new technology. For example, in 1980 the legislature enacted section 382.085, Florida Statutes, to recognize "brain death" under certain circumstances. ¹ In some states legislatures have enacted laws allowing competent individuals to refuse application of extraordinary medical or surgical means to prolong life, and one state even allows either parent of a minor to execute a refusal on behalf of the minor. ²

While Florida has defined brain death, Andrew does not fully meet the necessary criteria because there is a minimal function of his brain stem. Section 382.085(4), however, recognizes that the statutory recognition of brain death "is not the exclusive standard for determining death or for the withdrawal of life-support systems." Moreover, while there is legal precedent to allow a competent individual to order removal of life support systems, there are no Florida statutes or controlling judicial precedents which address the removal of life support systems from a minor. Thus, after arriving at what they considered an informed and moral judgment, Mr. and Mrs. Barry petitioned the circuit court to sanction their decision.

The state contends here, as it did below, that its interest in preserving life outweighs the parents' assertion of their child's right of privacy to require removal of the life support system. The state also challenges the trial court's finding that Andrew is terminally ill and argues that the court erred in basing its order on the doctrine of substituted judgment in the absence of evidence of the infant's intention.

While we agree that the state has a definite interest in preserving life, we must balance that right against the rights of an individual. For example, in January 1980 the Supreme Court of Florida held that a constitutional right of privacy affords a competent adult suffering from a terminal illness the right to refuse or order discontinued extraordinary medical treatments where all affected family members consent. While characterizing the issue as being more suitable to being addressed in the legislative forum, the court recognized that absent a response by the legislature, courts must proceed on a case-by-case basis to meet this type of problem. Satz v. Perlmutter, 379 So.2d 359 (Fla.1980).

While the court's observation in Perlmutter did not evoke any specific legislative response, the electors of this state, on November 4, 1980, adopted Article I, section 23, of the Bill of Rights to the Florida Constitution. That section provides an express right of privacy for every natural person and makes no distinction as to whether a natural person is competent to exercise that right. However, we agree with the Fourth District Court of Appeal which recently observed that the constitutional right of privacy would be an empty right if one who is incompetent were not granted the right of a competent counterpart to exercise his rights. ³

The record refutes the state's contention that Andrew is not terminally ill and fully supports the trial judge's findings that the child is in a permanent vegetative coma without any cognitive brain function, that his condition is permanent and irreversible, and that his life is being sustained only through the use of...