Hart v. Brown

• Citation: 289 A.2d 386,29 Conn.Supp. 368
• Decision Date: 21 March 1972
• Docket Number: No. 145672,145672
• Court: Connecticut Superior Court
• Parties: Peter HART et al. v. Robert S. BROWN et al.

Page 386

289 A.2d 386

29 Conn.Supp. 368

Peter HART et al. v. Robert S. BROWN et al.

No. 145672.

Superior Court of Connecticut, Fairfield County, at Bridgeport.

March 21, 1972.

Gerard S. Spiegel, Trumbull, for plaintiffs.

Wiggin & Dana, New Haven, for defendants.

TESTO, Judge.

This matter is before this court by way of an action for a declaratory judgment. General Statutes § 52-29; Practice Book § 307.

The plaintiffs are Peter Hart and Eleanor Hart, the parents and natural guardians of Katheleen A. Hart and Margaret H. Hart, minors, identical twins, age seven years and ten months. The minor twins appear herein by court-appointed guardians ad litem: Attorney Thomas Dolan for the minor Margaret, and Mrs. Sylvia Chandler for the minor Katheleen. The defendants are practicing physicians licensed in this state and the Yale-New Haven Hospital, Inc., a duly organized Connecticut corporation located in the city and county of New Haven.

The plaintiff minor Katheleen A. Hart is presently a patient in the Yale-New Haven Hospital awaiting a kidney transplant. It is reasonably probable that if such procedure does not occur soon she will die. The defendant physicians have in the past performed successful kidney transplantation operations, and they are of the opinion that a successful transplantation operation can be performed on the plaintiff minors, Katheleen A. Hart as donee and Margaret H. Hart as donor.

The plaintiffs Peter Hart and Eleanor Hart, each of whom had originally offered a kidney, have requested as parents and natural guardians of the identical twins the transplantation operation of the kidney, but the defendant physicians are unwilling to perform this operation and the defendant hospital refuses the use of its facilities unless this court declares that the parents and/or guardians ad litem of the minors have the right to give their consent to the operation upon the minor twins.

The equity powers of a court must be cautiously and sparingly exercised and only in rare instances should they be exercised. The need must be urgent, the probabilities of success should be most favorable, and the duty must be clear. If it were otherwise, a court of equity, in a case such as this, might assume omnipotent powers; to do so is not the function of the court and must be avoided.

The inherent power of a court of equity to grant the relief sought herein has been decided previously in our American courts. In earlier decisions, the English courts took a broader view of this power, with respect to incompetents. Ex parte Whitbread, 2 Mer. 99, 35 Eng.Rep. 878 (Ch.1816). That case held that a court of equity has the power to make provisions for a needy brother from the estate of an incompetent. This inherent rule was followed in this country in New York; Re Willoughby, 11 Paige 257 (N.Y.Ch.1844); where the court stated that a chancellor has the power to deal with the estate of an incompetent in the same manner as the incompetent if he had his faculties. This rule has been extended to cover not only property matters but also the personal affairs of an incompetent. 27 Am.Jur.2d 592, Equity, § 69. '(A) court of equity has full and complete jurisdiction over the persons of those who labor under any legal disability . . .. The court's action . . . is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid . . . may be needed. While this indeed is a special exercise of equity jurisdiction, it is beyond question that by virtue thereof the court may pass upon purely personal rights.' Ibid. The right to act for an incompetent has been recognized as the 'doctrine of substituted judgment' and is broad enough to cover all matters touching on the well-being of legally incapacitated persons. The doctrine has been recognized in American courts since 1844.

This court is not being asked to act where a person is legally incompetent. The matter, however, does involve two minors who do not have the legal capacity to consent. This situation was dealt with in three earlier unreported cases decided in our sister state of Massachusetts. The commonwealth of Massachusetts ruled that a court of equity does have the power to permit the natural parents of minor twins to give their consent to a procedure such as is being contemplated by this court. Masden v. Harrison, No. 68651, Eq.Mass.Sup.Jud.Ct. (June 12, 1957); Hushey v. Harrison, No. 68666, Eq.Mass.Sup.Jud.Ct. (Aug. 30, 1957); Foster v. Harrison, No. 68674, Eq.Mass.Sup.Jud.Ct. (Nov. 20, 1957). Those cases involved minors of the ages of nineteen, fourteen and fourteen. In a similar case, Strunk v. Strunk, 445 S.W.2d 145 (Ky.1969), a court of equity was confronted with whether or not it had the power to permit the natural parent of a twenty-seven-year-old mental incompetent with a mentality of a six-years-old to give her consent to a kidney transplantation operation. The Kentucky case dealt with a transplant from the mental incompetent to his twenty-eight-year-old brother. The court held that a court of equity does have such power, applying also the 'doctrine of substituted judgment.'

Therefore, this court is of the opinion that it has the power to act in this matter.

The facts of the case as testified to by competent medical witnesses are as follows: Katheleen Hart is a minor of the age of seven years and ten months and is suffering from a hemolytic uremic syndrome. This is a disorder of the kidneys with clots within the small blood vessels. This disease has no known etiology and is prevalent primarily in young children. The diagnosis was confirmed on November 29, 1971, after a kidney biopsy was performed. Hemodialysis treatments were commenced on December 8, 1971, along with other treatment to correct this disorder. On February 1, 1972, her kidney was biopsied for the second time because of the onset of a malignant type of blood pressure elevation, and this biopsy disclosed a new and more disastrous lesion-malignant hypertension-which could prove fatal. On February 17, 1972, a bilateral nephrectomy was performed with removal of both kidneys to control the situation. As of that date, Katheleen became a patient with fixed uremia with no potential kidney function and required dialysis treatments twice weekly. The prospect of survival is, because of her age, at best questionable. It was medically advised that she not continue this dialysis therapy but rather that a kidney transplantation take place.

The types of kidney transplantations discussed in this matter were a parental homograft-transfer of tissue from one humand being to another-and an isograft, that is, a one-egg twin graft from one to another. The parental homograft always presents a serious problem of rejection by the donee. Because the human body rejects any foreign organs, the donee must be placed upon a program of immunosuppressive drugs to combat such rejection. An isograft transplantation, on the other hand, is not presented with the problem of rejection. A one-egg twin carries the same genetic material, and, because of this, rejection is not a factor in the success rate of the graft.

The chance of Katheleen's surviving dialysis therapy for a period of five years was estimated at fifty-fifty, with the possibility of many other complications setting in. The ultimate purpose of dialysis treatment in a child this age is to keep the patient alive until a kidney transplant is found. Because of the many complications involved in a transplantation procedure other than with the minor identical twin as donor, it has been medically advised that an insograft transplantation be recommended.

Since 1966, it is reported in the Ninth Report of the Human Renal Transplant Registry, twelve twin grafts have been performed. All twelve have been successful, as reported by the Registry, at one- and two-year follow-ups. In the identical-twin donations since 1966, grafts are functioning at 100 percent. Before 1966, because of technical matters, the survival rate was about 90 percent. Of all isografts followed since 1966, all are successful. In this type of a graft there is substantially a 100 percent chance that the twins will live out a normal life span-emotionally and physically.

If a parent donates the kidney, the statistics show less success. The average percent of success in that type of transplant has been 70 percent at one year and 65 percent or so over a two-year period. The falloff thereafter runs another 5 to 10 or more percent per year. The long-range survival of a parent transplant runs around 50 to 55 percent over a period of five years and appears to fall off to about 37 percent over a period of seven years.

The side effects of the immunosuppressive drugs in a parental homograft are numerous and include the possibility of bone marrow toxicity, liver damage, and a syndrome called Cushing...