L.H.R., In re, 41065

• Court: Supreme Court of Georgia
• Citation: 321 S.E.2d 716,253 Ga. 439
• Docket Number: No. 41065,41065
• Parties: , 53 USLW 2237 In re L.H.R.
• Decision Date: 16 October 1984

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321 S.E.2d 716 253 Ga. 439, 53 USLW 2237 In re L.H.R. No. 41065. Supreme Court of Georgia. Oct. 16, 1984.
Rehearing Denied Oct. 29, 1984.

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[253 Ga. 447] Michael J. Bowers, Atty. Gen., David C. Will, Asst. Atty. Gen., for the state.

C. Wilbur Warner, Jr., Warner, Mayoue & Wilgus, Simuel F. Doster, Jr., J. Kevin Buster, Jane E. Jordan, King & Spalding, Joseph L. Bankoff, F. Carlton King, Jr., Doster, Allen & King, Atlanta, for appellees.

Alston & Bird, Jack Spalding Schroder, Jr., Scott R. Owens, Gary R. Franklin, Powell, Goldstein, Frazer & Murphy, Richard H. Vincent, Robert N. Berg, John V. Costley, Jr., Fenella Rouse, Stuart, Zavin, Sinnreich & Wasserman, Richard Wasserman, amici curiae.

[253 Ga. 439] CLARKE, Justice.

This appeal from an order of the Superior Court of DeKalb County poses a question of first impression. Stated simply the question is under what circumstances may life-support systems be removed from a

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terminally ill patient existing in a chronic vegetative state with no hope of development of cognitive function.

L.H.R. suffered a "medical catastrophe" fifteen days after her normal birth in October, 1983. She remained in a local hospital until January 29, 1984, when she was transferred to Henrietta Egleston Hospital for Children and placed under the care of a pediatric neurologist. The neurologist determined that the infant was in a "chronic vegetative state" with "absence of cognitive function." Eighty-five to ninety percent of her brain tissue had been destroyed, and her condition was described as "irreversible," with no hope of recovery.

The neurologist, the infant's parents, and the guardian ad litem appointed for the child all agreed that she should be removed from life-support systems. An ad hoc Infant Care Review Committee convened by the hospital to review the case concurred. This committee consisted of two pediatricians, a registered nurse, a social worker, the hospital administrator, and the parent of a handicapped child. Egleston filed a petition for declaratory relief on February 8. On February 9, after a hearing in DeKalb Superior Court, the hospital and physicians were enjoined from interfering with the constitutional and common law rights of the child and from interfering with the wishes of L.H.R.'s parents and guardian to have life-support systems removed. After entry of this order the life-support systems were removed, and the child died within thirty minutes.

The trial court sua sponte added the Attorney General as a party to the suit and directed that he prosecute an appeal. The primary purpose for the appeal is to afford this court an opportunity to set forth guidelines for the future handling of this type situation. The questions for decision are who may make treatment decisions and [253 Ga. 440] whether judicial intervention is required. This appeal is not moot inasmuch as this case is among those cases which are "capable of repetition yet evading review." Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

We begin our discussion of treatment decisions for incompetent persons with In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289, the seminal case in this area. The New Jersey Supreme Court in In re Quinlan considered the petition of the father of a comatose adult that the court order the hospital and physician to terminate the life-support system. The court began its analysis by finding that the right to refuse medical treatment is a constitutional right based on the individual's right to privacy. The individual who is incompetent does not lose this right because of incompetency. Id. at 664. The question to be decided, therefore, was who might exercise this right on behalf of the incompetent. The court found that the right of Karen to refuse medical treatment could be exercised by her guardian (her father), and family after obtaining the opinion of the attending physician that there was no reasonable possibility of Karen's emerging from a comatose state to a cognitive state. Upon deciding that there was no hope of recovery, the attending physician would consult with a hospital ethics committee, and upon the concurrence of that body in the prognosis, the life-support system might be withdrawn.

The court in In re Quinlan found judicial intervention generally inappropriate: "We consider that a practice of applying to a court to confirm such decisions would generally be inappropriate, not only because that would be a gratuitous encroachment upon the medical profession's field of competence, but because it would be impossibly cumbersome." Id. at 669.

Similarly, in John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So.2d 921 (Fla.1984), and In re Barry, 445 So.2d 365 (Fla.App. 2d Dist.1984), Florida courts have found judicial intervention unnecessary. In re Barry involved a fact pattern particularly close to that of the present case. The natural parents of a 10-month-old terminally ill comatose child petitioned as legal guardians of the child to have life-support systems removed. The

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state contended that the lower court erred in permitting removal of the life-support system because the state's interest in preserving life outweighed the parents' assertion of the child's right of privacy. The state also contended that the court erred in basing its order on the doctrine of substituted judgment in the absence of evidence of the infant's intention. The appellate court found that the doctrine of substituted judgment as developed in order to afford incompetent persons the same right as competent individuals to refuse medical treatment. Under the doctrine of substituted judgment the decisionmaker bases the decision on what he believes the [253 Ga. 441] patient, if competent, would have done. While this analysis is useful in the case of adults, it is difficult to apply in the case of young children. The court found "... in the case of a child who has not reached maturity, it is the parents and their medical advisors who generally must make these decisions. And, where judicial intervention becomes necessary or desirable, the court must be guided primarily by the judgment of the parents who are responsible for their child's well-being, provided, of course, that their judgment is supported by competent medical evidence." Id. at 371. Given the evidence of the child's condition, the court concluded, "We can conceive of no state interest great enough to compel the parents to continue to submit their child to a life support system in this instance. To do so would merely prolong the death of a child terminally ill, wholly lacking in cognitive brain functioning, completely unaware of his surroundings, and with no hope of development of any awareness.... It is, we think, the right and obligation of the parents in such an instance to exercise their responsibility and prerogative, as did Mr. and Mrs. Barry, of making an informed determination as to whether these extraordinary measures should be continued." Id.

In conclusion, the court addressed the state's contention that judicial intervention should be required in these cases. The court, observing that the issue was not squarely before it, found, "A decision by parents supported by competent medical advice that their young child suffers from a permanent, incurable and irreversible physical or mental defect likely to soon result in the child's death should ordinarily be sufficient without court approval. Of course, diagnosis should always be confirmed by at least two physicians. We must remember that the conscience of society in these matters is not something relegated to the exclusive jurisdiction of the court." Id. at 372. See also, In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983), in which the court found that judicial intervention is rarely required. The Colyer court did note, however, that in the case of an incompetent adult such as Colyer, the appointment of a guardian gave the court some limited degree of supervision. In a...