In re Duran

• Decision Date: 21 February 2001
• Citation: 769 A.2d 497,2001 Pa. Super. 52
• Parties: In re Maria Isabel DURAN, an: incapacitated person. Appeal of: Larry M. Johnson, the Health-Care Agent appointed by Maria Isabel Duran in her Durable Power of Attorney for Health Care.
• Court: Pennsylvania Superior Court

769 A.2d 497

2001 Pa. Super. 52

In re Maria Isabel DURAN, an: incapacitated person.

Appeal of: Larry M. Johnson, the Health-Care Agent appointed by Maria Isabel Duran in her Durable Power of Attorney for Health Care.

Superior Court of Pennsylvania.

Argued January 10, 2001.

Filed February 21, 2001.

Donald Ridley, Patterson, New York, and Stephen Langton, Lower Burrell, for appellant.

Margaret H. Drayden, Pittsburgh, amicus curiae.

Before FORD ELLIOTT, MUSMANNO, and KELLY, JJ.

KELLY, J:

¶ 1 Appellant, Larry M. Johnson, asks us to determine whether the trial court erred when it appointed an emergency guardian for the express purpose of consenting to a blood transfusion for Maria Duran ("Maria"), a Jehovah's Witness. We hold that Appellant's issue is cognizable despite its technical mootness. We further hold that Maria's unequivocal refusal of blood transfusion therapy is protected by Pennsylvania common law and that the trial court erred when it appointed an emergency guardian to abridge this right. Finally, we conclude that Appellant was entitled to notice of the hearing to appoint an emergency guardian. Thus, we reverse the order of the trial court.

¶ 2 The relevant facts and procedural history of this appeal are as follows. In 1999, Maria Duran was 34 years old. She was the wife of Lionel Duran and mother of two teenage children. Of the four, only Maria was a Jehovah's Witness.¹

¶ 3 Maria's deeply-held religious beliefs as a Jehovah's Witness did not preclude her from seeking advanced medical treatment or procedures. However, Maria's strict adherence to the written word of the Bible commanded her to abstain from blood products and blood transfusions. Thus, for example, when Maria needed a liver transplant, she sought a hospital that would accommodate her religious beliefs. Maria chose the University of Pittsburgh Medical Center ("the Center") because she was told the Center had performed liver transplants on Jehovah's Witnesses without the need for blood transfusions. In 1997, Maria traveled from New York to Pittsburgh to be evaluated as a candidate for a liver transplant procedure. During the visit, Maria specifically discussed her religious beliefs regarding blood transfusions with doctors and staff at the Center.

¶ 4 In anticipation of the transplant, Maria executed a durable power of attorney for medical care ("DPA") on February 5, 1998. The document stated in pertinent part:

I am one of Jehovah's Witnesses. On the basis of my firmly held religious convictions, see Acts 15:28, 29, and on the basis of my desire to avoid the numerous hazards and complications of blood, I absolutely, unequivocally and resolutely refuse homologous blood (another person's blood) and stored autologous blood (my own stored blood) under any and all circumstances, no matter what my medical condition. This means no whole blood, no red cells, no white cells, no platelets, and no blood plasma no matter what the consequences. Even if health-care providers (doctors, nurses, etc.) believe that only blood transfusion therapy will preserve my life or health, I do not want it. Family, relatives or friends may disagree with my religious beliefs and with my wishes expressed herein. However, their disagreement is legally and ethically irrelevant because it is my subjective choice that controls. Any such disagreement should in no way be construed as creating ambiguity or doubt about the strength or substance of my wishes.

(Exception to Guardianship Order-Exhibit B, at 1) (emphasis in original). In her DPA, Maria also appointed Appellant, Larry M. Johnson, as her health-care agent.

¶ 5 A year later, the Center informed Maria that she was close to receiving a liver and advised her to move closer to Pittsburgh. Maria left New York to live with Appellant and his wife near Pittsburgh. Before leaving, Maria discussed her desire not to receive any blood transfusions with her husband and family members.

¶ 6 On July 19, 1999, Maria underwent her first liver transplant operation. Prior to the operation, Maria provided her doctors with copies of her DPA and reiterated her refusal to accept any blood transfusions. After the operation, Maria's body rejected the liver. A second operation was Maria's only chance for survival. Appellant, as Maria's appointed health-care agent, consented to the second transplant operation. Appellant had also consented to a kidney dialysis and a biopsy during the course of Maria's treatment. Maria's body rejected the second organ as well. Her failing liver caused her to slip into a comatose state. Maria's condition rapidly deteriorated and doctors estimated that without a blood transfusion she would die within the next twenty-four hours. Only with a transfusion, doctors projected, would Maria have a chance of survival.

¶ 7 On July 27, 1999, Maria's husband, Lionel Duran, orally petitioned the Orphans' Court to be appointed Maria's emergency limited guardian for the purpose of consenting to a blood transfusion. The court heard testimony from the treating physician, Dr. Stephen Bowles, Lionel Duran, and Maria's sister, Velma Santiago. A court-appointed attorney represented Maria. Appellant was not given notice of the hearing. At the conclusion of the hearing, the Orphans' Court granted Lionel Duran's petition. Appellant filed exceptions to the court's order on August 3, 1999. Meanwhile, Maria's husband consented to the blood transfusions for Maria. Maria died on August 19, 1999.

¶ 8 On August 25, 1999, Lionel Duran withdrew his petition and asked the court to dismiss further proceedings. Appellant then filed a memorandum of law requesting the court to rule on his exceptions despite their technical mootness. The Orphans' Court, en banc, affirmed the order. Appellant filed this timely appeal.²

¶ 9 On appeal, Appellant raises the following issues:

SHOULD THIS CASE BE DISMISSED FOR TECHNICAL MOOTNESS?

DO A PATIENT'S COMMON LAW AND CONSTITUTIONAL RIGHTS OF BODILY SELF-DETERMINATION AND RELIGIOUS FREEDOM PROTECT HER RELIGIOUS-MOTIVATED REFUSAL OF MEDICAL TREATMENT FROM BEING OVERRIDDEN BY THE APPOINTMENT OF A GUARDIAN WITH AUTHORITY

TO CONSENT TO THE TREATMENT IN QUESTION?

IF A PATIENT HAS APPOINTED HER OWN HEALTH-CARE AGENT BY MEANS OF A DURABLE POWER OF ATTORNEY, MAY ANOTHER PERSON WHOSE VALUES CONFLICT WITH THE PATIENT'S BE APPOINTED AS HER GUARDIAN TO MAKE HEALTH-CARE DECISIONS CONTRARY TO HER INSTRUCTIONS WITHOUT ANY SHOWING THAT HER HEALTH-CARE AGENT ACTED INAPPROPRIATELY?

IS A PATIENT WHO HAS APPOINTED HER OWN HEALTH-CARE AGENT DEPRIVED OF DUE-PROCESS OF LAW BY THE FAILURE OF HER AGENT TO RECEIVE NOTICE OF A PETITION TO APPOINT [A] GUARDIAN TO MAKE HEALTH-CARE DECISIONS FOR HER CONTRARY TO HER VALUES AND INSTRUCTIONS?

(Appellant's Brief at 2).

¶ 10 Initially, Appellant argues that while his appeal is technically moot, it should not be dismissed because the appeal raises issues of important public interest, capable of repetition, yet apt to evade appellate review. We agree.

¶ 11 Generally, an actual claim or controversy must be present at all stages of the judicial process for the case to be actionable or reviewable. Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701, 705 (1991). If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot. Id. Even if a claim becomes moot, we may still reach its merits if the issues raised in the case are capable of repetition, yet likely to continually evade appellate review. Id. See also In Re Fiori, 543 Pa. 592, 600 n. 4, 673 A.2d 905, 909 n. 4 (1996)

(holding death of patient did not preclude appellate review where issue was of important public interest, capable of repetition, yet apt to elude appellate review); Commonwealth v. Bernhardt, 359 Pa.Super. 413, 519 A.2d 417, 420 (1986) (holding exception to mootness doctrine exists where "(1) the question involved is capable of repetition but likely to evade review, or (2) the question involved is one of public importance"). Therefore, if the issues raised by an appeal are "substantial questions" or "questions of public importance," and are capable of repetition, yet likely to evade appellate review, then we will reach the merits of the appeal despite its technical mootness. Id. Finally, in In Re Estate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985),

appeal granted, 511 Pa. 609, 515 A.2d 893 (1986), affirmed, 517 Pa. 3, 534 A.2d 452 (1987), this Court noted

There is a large class of other Jehovah's Witnesses, and it is reasonably likely that at least some of these will be involved in emergencies in which a doctor will seek a court order authorizing a transfusion. Moreover, the issues raised by this case are capable of evading review if the general rule of mootness is applied, for a transfusion ordered by a court in an emergency will always be given before the appellate process can be completed. Finally, the rights alleged to have been violated include that First Amendment right to freedom of religion, a matter of public importance.

Id. at 1275 (emphasis original).

¶ 12 Here, Maria's death rendered Appellant's issues technically moot. However, the issues raised by this appeal are capable of repetition given the approximately two million Jehovah's Witnesses living in the United States. See id. The issues in this appeal, rights to privacy and bodily integrity, are matters of public importance. Id. Finally, the circumstantial constraints involved in appeals of this nature make timely review virtually impracticable in almost every instance. Id. Accordingly, we proceed to the merits of this appeal.

¶ 13 Appellant next argues that the trial court violated Maria's common law and constitutional rights when it appointed an emergency guardian to consent to a blood transfusion on behalf of Maria in spite of her religious beliefs and prior directives. We agree.

¶ 14 Appellant has raised both constitutional and common law challenges to the court's order. We note that courts should...