Guardianship of Browning, In re

• Decision Date: 10 April 1989
• Docket Number: No. 88-02887,88-02887
• Citation: 14 Fla. L. Weekly 956,543 So.2d 258
• Parties: 14 Fla. L. Weekly 956 In re GUARDIANSHIP OF Estelle M. BROWNING, Incompetent. Doris F. HERBERT, as the Guardian on behalf of Estelle M. BROWNING, Incompetent, Appellant, v. STATE of Florida and Sunset Point Nursing Center, Appellees.
• Court: Florida District Court of Appeals

Page 258

543 So.2d 258

14 Fla. L. Weekly 956

In re GUARDIANSHIP OF Estelle M. BROWNING, Incompetent.

Doris F. HERBERT, as the Guardian on behalf of Estelle M. BROWNING, Incompetent, Appellant, v. STATE of Florida and Sunset Point Nursing Center, Appellees.

No. 88-02887.

District Court of Appeal of Florida,

Second District.

April 10, 1989.

Motion for Clarification Denied May 3, 1989.

George J. Felos of Felos & Felos, Dunedin, for appellant.

James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for appellee State of Fla.

Michael C. Markham of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, for appellee Sunset Point Nursing Center.

Fenella Rouse and M. Rose Gasner, New York City, on behalf of amicus curiae Soc. for the Right to Die, Inc.

Giles R. Scofield, III, New York City, and William Trickel, Orlando, on behalf of amicus curiae Concern for Dying.

Robert Merkle, Clearwater, and James Bopp, Jr., Thomas J. Marzen, Mary M. Nimz, Daniel Avila, Teresa Kealy, and Joel M. Barkow, Indianapolis, Ind., on behalf of amicus curiae Ethics and Advocacy Task Force of the Nursing Home Action Group.

ALTENBERND, Judge.

Mrs. Browning's guardian appeals the order of the trial court denying her petition to terminate artificial life support. This case requires us to determine whether the guardian of a patient who is incompetent but not in a permanent vegetative state, and who suffers from an incurable, but not necessarily terminal condition, may exercise the patient's right of self-determination to forego sustenance provided artificially by a nasogastric tube.

We hold that the guardian is entitled to make this decision as a surrogate decisionmaker ¹ for the patient under article I, section 23, Florida Constitution. In this opinion, we establish a framework in which the surrogate decisionmaker is required to make this decision based upon adequate, up-to-date evidence on four issues. The surrogate decisionmaker's function is to make the decision which clear and convincing evidence establishes that the patient, if competent, would make. If the surrogate decisionmaker has reasonable doubt, he or she must make a decision which supports life. Because this remedy is based upon a constitutional right of privacy, we anticipate that the decision typically will be made outside the judicial forum. The courts, however, remain open to act as decisionmaker in appropriate cases and to review the surrogate's decision in cases of doubt.

The trial court denied the petition exclusively on a statutory basis. It found that Mrs. Browning's death was not imminent so long as she received food and hydration. The trial court correctly ruled that a remedy for the guardian did not exist under the "Life-Prolonging Procedures Act of Florida," sections 765.01-.15, Florida Statutes (1987). We affirm the trial court's decision without prejudice to the guardian's right to seek relief under the Florida Constitution.

I. THE EVIDENCE PRESENTED TO THE TRIAL COURT

Mrs. Browning is eighty-nine years old. Her only child died when he was eighteen. Her husband died in 1978. Her only close living relative is a second cousin, Doris Herbert. Mrs. Herbert is eighty years old. She has known Mrs. Browning well for her entire life and lived with Mrs. Browning from 1982 until 1986.

In the decade preceding November 1986, Mrs. Browning experienced generally good health. She was happy, healthy, and enjoyed life. Dr. Lois West was her family physician. The only medical condition for which she received any significant treatment was hypertension.

On November 9, 1986, Mrs. Browning suffered a massive stroke. This cerebral vascular accident involved a large hemorrhage in the left parietal region of her brain. Although Mrs. Browning received extensive emergency treatment at Mease Hospital, the damage to her brain was clearly major, permanent, and irreversible. Hospital records from the time shortly after the stroke reflect that Mrs. Browning was totally unresponsive except that she would respond to deep pain by moving. Because she was unable to swallow, a gastrostomy was performed on November 20, 1986. This procedure allows food and liquid to be introduced directly to the stomach through an opening in the abdominal wall.

On November 21, 1986, Mrs. Browning was transferred to Sunset Point Nursing Center. Following this transfer, Dr. Lois West ceased treating Mrs. Browning on a regular basis and Dr. James Avery became her primary treating physician. In the months that followed, Mrs. Browning's medical records reflect frequent problems with nausea, bed sores, and other unpleasant, chronic maladies. None of these conditions would appear to be life-threatening. Due to Mrs. Browning's brain damage, it is unclear whether she is aware of these conditions A few months after Mrs. Browning's stroke, Mrs. Herbert was appointed as legal guardian. The inventory of the guardian reflects that Mrs. Browning could remain at the nursing home for a substantial period without exhausting the assets of the guardianship.

or suffers any cognitive pain. In May 1988, the gastrostomy tube became dislodged. Since that time, Mrs. Browning has been fed through a nasogastric tube.

On September 2, 1988, nearly two years after Mrs. Browning's stroke, her guardian filed a petition to terminate artificial life support. The petition was based primarily upon a living will executed by Mrs. Browning on November 19, 1985. Although the petition refers to Mrs. Browning's right to remove the feeding tube under the United States Constitution and the Florida Constitution, this case was presented to the trial court almost exclusively under chapter 765, Florida Statutes (1987). It is apparent that the guardian's attorney and the trial court were confused concerning the distinction between the procedures required for chapter 765 and for a constitutional petition. See John F. Kennedy Memorial Hosp. v. Bludworth, 452 So.2d 921 (Fla.1984). Since the appellate courts of this state have not clearly enunciated the procedures, this confusion is understandable.

The trial court conducted an evidentiary hearing on the petition to terminate. The evidence at the hearing concerned two issues--Mrs. Browning's desire to terminate food and hydration and the nature of her current medical condition.

Concerning Mrs. Browning's desire to terminate food and hydration, the guardian relied primarily upon Mrs. Browning's living will. An accurate copy of the living will executed by Mrs. Browning on November 19, 1985, is attached as an appendix to this opinion. The guardian placed heavy emphasis upon the sentence in the living will in which Mrs. Browning, by her "x" in a box, had indicated her desire that "nutrition and hydration (food and water)" not be provided. This language is not the standard language suggested by the legislature in section 765.05(1), Florida Statutes (1987). The statute, however, provides that "other specific directions" may be included within a living will. § 765.05(2), Fla.Stat. (1987). In Mrs. Browning's will, however, the sentence concerning food and water immediately follows and is within the same paragraph as the standard language authorizing the withdrawal of life-sustaining procedures when "my death is imminent." The state argues that Mrs. Browning's death is not imminent, and thus, no remedy should exist.

In addition to the living will, the court heard evidence from the guardian and from two of Mrs. Browning's neighbors. Mrs. Browning had told them, after a visit to someone in a nursing home, that she never wished to be in such a condition and that she was thankful that her living will had taken care of this problem. Mrs. Browning had signed a prior living will and had executed the newer will to be certain that the will was enforceable. Prior to her stroke, Mrs. Browning had also provided a copy of her living will to Dr. West.

The religious or ethical beliefs of a patient can play a significant role in proceedings such as we have for review today. Public Health Trust v. Wons, 541 So.2d 96 (Fla. 1989). ² The evidence presented to the trial court did not include evidence of any religious beliefs supporting or prohibiting the removal of the nasogastric tube.

Concerning Mrs. Browning's medical condition, the evidence is also limited and troubling for this court. Mrs. Browning's primary treating physician, Dr. Avery, did not testify at the hearing. No certificate from Dr. Avery concerning Mrs. Browning's Mrs. Browning has been in a stable but poor condition over the last few months. She has not been able to feed, care or do any activities and is totally bedridden. Her mental status is poor and she dose [sic] not respond to verbal stimuli at all. She dose [sic] respond with primitive movements to tactile or painful stimuli. She does not appear to interact with her environment apart from the above. Her physical condition is stable and her large decubitus ulcer has remained stable because of good nursing care.

medical condition was introduced into evidence. Instead, the guardian introduced a one-paragraph letter from Dr. Avery, which was prepared eight months before the September 1988 hearing. In the letter, Dr. Avery states:

The guardian also introduced a letter from Dr. Edward Hayward dated April 11, 1988. That letter states in part:

Her condition has not substantially changed since I have been visiting her at Sunset Point, reflecting the good care she is receiving. She is, however, alert and follows people around the room with her eyes. She looks at you when you attempt to talk to her. She appears to understand but does not follow simple orders.

In summary, Estelle Browning is a very unfortunate female who appears to be medically stable with total supportive care but whose chance for a meaningful recovery is very small.

Dr. West testified at the hearing. After Mrs. Browning had been discharged from Meese Hospital, Dr. West had seen Mrs. Browning on only two...