Mack v. Mack

• Decision Date: 01 September 1992
• Docket Number: No. 29,29
• Citation: 329 Md. 188,618 A.2d 744
• Parties: , 61 USLW 2506, 4 NDLR P 129 Deanna MACK v. Ronald E. MACK. ,
• Court: Maryland Court of Appeals

Page 188

329 Md. 188

618 A.2d 744, 61 USLW 2506, 4 NDLR P 129

Deanna MACK v. Ronald E. MACK.

No. 29, Sept. Term, 1992.

Court of Appeals of Maryland.

Feb. 2, 1993.

C. Christopher Brown (Rachel A. Wohl, Brown, Goldstein & Levy, all on brief), Baltimore, for petitioner.

Leslie Fried (Legal Aid Bureau, Silver Spring), Joan O'Sullivan (Legal Aid Bureau, Annapolis), Eileen Franch (Legal Aid Bureau, Baltimore), amicus curiae.

Gary I. Strausberg (Wayne M. Willoughby, Randal D. Getz, Janet & Strausberg, all on brief), Baltimore, Edward J. Gillis (Royston, Mueller, McLean & Reid, both on brief), Towson, for respondent.

Timothy J. Keay (Dept. of Family Medicine, Baltimore), amicus curiae.

Jack Schwartz, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Mary O'Malley Lunden, Asst. Atty. Gen., all on brief), Baltimore, amicus curiae.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ.

RODOWSKY, Judge.

This case involves an application to withhold nutrition and hydration administered through a gastrostomy tube to a previously competent, adult, hospital patient who has been in a persistent vegetative state since June 1983, but who is not terminally ill. Because the evidence was inconclusive concerning any intent that the patient had, or would have, concerning the continuation or withholding of artificial nutrition and hydration under these circumstances, the circuit court concluded that Maryland law did not authorize the withholding of life support. As we explain below, we agree.

The patient is Ronald W. Mack (Ronald), born July 11, 1962. He is a high school graduate. He and the appellant, Deanna Mack (Deanna), were married in November 1980. They have two children who live with their mother. In November 1982, Ronald enlisted in the Army. While stationed in California, in June 1983, he was involved in an automobile accident in which he suffered massive brain injuries. He never regained consciousness after the accident.

Ronald was weaned off of a respirator, but he has remained in a persistent vegetative state. His biological bodily functions continue because his brain stem is intact, but his cerebral hemispheres are so damaged that he is incapable of cognitive activity. The distinguishing feature of a patient in a persistent vegetative state is wakefulness without awareness. These patients commonly make sporadic movements, spontaneously blink their eyes, and have heightened reflex responses, but they cannot voluntarily respond to stimuli.

Ronald was transferred from California in September 1983 to the Fort Howard Veterans' Hospital in Baltimore County to be closer to his family. In addition to his wife and children, Ronald's immediate family includes his father, a widower, the appellee, Ronald E. Mack (Ronald, pere ), and Ronald's younger sister, Karen Mack Carson, both of whom live within twenty minutes driving time of the hospital. Ronald has remained at Fort Howard Hospital to date.

Over the years of inactivity, the muscles in Ronald's arms and legs have become moderately spastic. His legs are straight and resist bending, while his arms are flexed, with the hands clenched, and resist straightening. Ronald is incontinent of bowel and bladder. He has a tracheotomy through which his lungs' secretions are periodically suctioned. He is unable to chew or to swallow; therefore, he is fed through the gastrostomy tube. ¹ The circuit court found that, in Ronald's case, there is "no medically reasonable expectation of recovery or cognitive movement," and that "Ronald is not experiencing pain."

In May 1984, Deanna was appointed guardian of Ronald's person by the Circuit Court for Baltimore County.

Deanna moved to Florida with the two children in September 1984. She had met another man who moved to Florida with her where they lived together for five to six years. Deanna's third child was born in October 1985 out of that relationship.

Acting on the advice of the Veterans Administration and for its convenience, Deanna, in October 1985, obtained appointment as guardian of Ronald's person by decree of the Circuit Court for Marion County, Florida. She was discharged as guardian under the Maryland appointment by order of the Circuit Court for Baltimore County in December 1985.

After moving to Florida, Deanna has visited Ronald three to four times a year. Ronald's sister testified that she visits him "regularly" at Fort Howard Hospital. Ronald, pere, testified that he visits his son usually once a week, with occasional intervals of two weeks between visits.

Sometime prior to May 11, 1991, Deanna learned through conversation with a registered nurse that it might be possible to have Ronald's gastrostomy tube removed. She consulted counsel in Florida. On May 11, a Saturday, Ronald, pere, and Mrs. Carson, acting pro se, filed with the United States District Court for the District of Maryland a paper that the court treated as a complaint and application for a temporary restraining order against the Veterans Administration. The two complainants alleged that Deanna was seeking to have a state court in Florida order the Veterans Administration to transfer Ronald to a veterans hospital in Florida where she would petition to have the court consider removal of life support from Ronald. The federal court in Maryland granted the requested ex parte order and, after a hearing, entered a preliminary injunction maintaining the status quo, pending determination of whether Deanna was the duly authorized guardian of the person of Ronald.

Ronald, pere, then petitioned the Circuit Court for Baltimore County for appointment as guardian of Ronald's person, and Deanna filed a cross petition seeking either confirmation of her guardianship status, based on the Florida decree, or appointment by the Maryland court. The circuit court promptly held a hearing. Ronald, pere, arguing that his appointment as guardian was in Ronald's best interest, emphasized the proximity of Ronald's father and sister to Fort Howard Hospital. The circuit court ruled that the Florida decree appointing Deanna as guardian was not entitled to full faith and credit because the Florida court had no jurisdiction over Ronald's person. The circuit court also determined to appoint a temporary guardian, naming Edward J. Gilliss, who had served as appointed counsel for Ronald. The permanent guardianship appointment was to be made at a later date, and, according to a prehearing letter sent from the circuit judge to the litigants, would "be based on a number of factors, most notably, the withdrawing of sustenance."

In pretrial memoranda, Deanna argued, inter alia, that the Circuit Court for Baltimore County should order withdrawal of Ronald's feeding tube. That issue was treated as the principal one at the full hearing in this case, although that relief had never been requested in a pleading.

In a written opinion that exhaustively reviewed the authorities, the circuit court concluded that, absent either a living will or a power of attorney for health care, the decision to withhold sustenance should be based on what intent Ronald had, or would have, as determined under a clear and convincing standard of proof. On those aspects of the case, the circuit court concluded:

"The underlying facts, produced through testimony, concerning the life and statements of Ronald W. Mack, prior to the accident, are not that remarkable or unexpected. Through his father and sister, who desire to hold onto his life, there is recollection of a Ronald who loved life, who would hold onto life, and who had thanked his father for attempting to keep his mother alive at a time she had experienced a cerebral hemorrhage, even though that probably would have meant that his mother would have survived only in a vegetative state. From Deanna Mack, there is recollection of an incident, when the couple visited Ronald's infirm grandmother, that he commented he would not want to live if he could not do for himself. He had also expressed to Deanna his gratefulness that a friend had died and did not have to suffer, when that friend had been shot. There was testimony that Ronald hated hospitals, doctors, medicine, and confinement. Deanna points to his love of life and sports as an indication he would not want to live in his present unconscious and confined state.

"The conflicting and non-definitive testimony, recollection and impression from various individuals, eight years ago, does not convince the court, of what intent Ronald W. Mack had or would have if faced with the situation which presently confronts him.

"Accepting the truth of all of the statements made, this court is unable to attribute to any one of them or all of them a probative value dispositive of the issue, one way or the other, by clear and convincing evidence. If anything, the evidence produces a stalemate. Nothing in the content or context of the evidence makes it reliable as an indicator of what Ronald would elect to do were he faced with the plight that now confronts him."

Because Ronald is not in pain, the circuit court would not base a decision on its own view of whether Ronald's interest would be better served by continuing or withholding sustenance, and the court would not base a decision on its view of what reasonable persons generally might think was in Ronald's best interest.

Although recognizing that Deanna, as Ronald's spouse, was accorded a priority for appointment as guardian of Ronald by Md.Code (1974, 1991 Repl.Vol.), § 13-707(a) of the Estates and Trusts Article (ET), the circuit court appointed Ronald, pere, as guardian. The court explained that this was "because it is the father of the ward who will carry into effect the applicable law of Maryland which requires the disabled's life to be continued through the administration of food and water." Inasmuch as Deanna had stated her intention not to continue artificial nutrition and hydration, "[h]er known and avowed...