McKay v. Bergstedt

• Decision Date: 30 November 1990
• Docket Number: No. 21207,21207
• Citation: 106 Nev. 808,801 P.2d 617
• Parties: , 59 USLW 2364, 1 NDLR P 154 D. Brian McKAY, Attorney General, State of Nevada, Appellant, v. Kenneth A. BERGSTEDT, Respondent/Cross-Appellant, v. Rex A. BELL, District Attorney of Clark County, Nevada, Cross-Respondent.
• Court: Nevada Supreme Court

Page 617

801 P.2d 617

106 Nev. 808, 59 USLW 2364, 1 NDLR P 154

D. Brian McKAY, Attorney General, State of Nevada, Appellant, v. Kenneth A. BERGSTEDT, Respondent/Cross-Appellant, v. Rex A. BELL, District Attorney of Clark County, Nevada,

Cross-Respondent.

No. 21207.

Supreme Court of Nevada.

Nov. 30, 1990.

Donald H. Haight, Deputy Atty. Gen., Las Vegas, for appellant.

Beckley, Singleton, DeLanoy, Jemison & List, Jack C. Cherry and Daniel F. Polsenberg, Las Vegas, for respondent/cross-appellant.

Janson F. Stewart, Chief Deputy Dist. Atty., Clark County, Las Vegas, for cross-respondent.

OPINION

STEFFEN, Justice:

Kenneth Bergstedt was a thirty-one-year-old mentally competent quadriplegic who sought to vindicate on appeal the lower court's decision confirming his right to die. Convinced that Kenneth's position has merit, we affirm. ¹

Prefatorily, we note that the State has essentially agreed with Kenneth's petition and has accordingly assumed only a token adversarial stance on appeal. Ordinarily, this court would deny appellate review to an appeal so lacking in controversy, especially where the intervening death of

the petitioner forecloses the possibility of granting the relief sought. Nevertheless, we have concluded that the issues before us are of such importance to the citizens of this State that an appellate resolution is virtually [106 Nev. 812] compelled. In that regard, our perception of duty is shared by other courts faced with issues of similar nature and magnitude in an appellate environment lacking in controversy and the existence of a live supplicant. The Supreme Court of Georgia, in State v. McAfee, 259 Ga. 579, 385 S.E.2d 651 (1989), decided a case involving a ventilator-dependent quadriplegic under circumstances where the state concluded there was no basis for opposing McAfee's right to refuse treatment. In Matter of Farrell, 108 N.J. 335, 529 A.2d 404 (1987), and Bartling v. Super. Ct. (Glendale Adven. Med.), 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984), the courts concluded that the issues involving the right to die were of such extreme importance that appellate jurisdiction would be exercised despite the intervening death of appellants. For the reasons stated, we elect to review and decide the issues presented by this appeal.

FACTUAL BACKGROUND

At the tender age of ten, Kenneth suffered the fate of a quadriplegic as the result of a swimming accident. Twenty-one years later, faced with what appeared to be the imminent death of his ill father, Kenneth decided that he wanted to be released from a life of paralysis held intact by the life-sustaining properties of a respirator. Although Kenneth was able to read, watch television, orally operate a computer, and occasionally receive limited enjoyment from wheelchair ambulation, he despaired over the prospect of life without the attentive care, companionship and love of his devoted father.

The limited record before us reflects substantial evidence of facts relevant to the proceedings below and material to the framework upon which the resolution of this appeal is constructed. First, a board-certified neurosurgeon determined that Kenneth's quadriplegia was irreversible. Second, a psychiatrist examined Kenneth and found him to be competent and able to understand the nature and consequences of his decision. Third, Kenneth arrived at his decision after substantial deliberation. Fourth, Kenneth's trusted and devoted father understood the basis for his son's decision and reluctantly approved. Fifth, although Kenneth's quadriplegia was irreversible, his affliction was non-terminal so long as he received artificial respiration.

Kenneth thus petitioned the district court as a non-terminal, competent, adult quadriplegic for an order permitting the removal of his respirator by one who could also administer a sedative and thereby relieve the pain that would otherwise precede his demise. Kenneth also sought an order of immunity from civil or criminal liability for anyone providing the requested assistance. Additionally, he petitioned the court for a declaration absolving him of suicide in the removal of his life-support system.

In ruling, the district court determined that Kenneth was a mentally competent adult fully capable of deciding to forego continued life connected to a respirator. The court also found that he understood that the removal of his life support system would shortly prove fatal.

In concluding that Kenneth had a constitutional privacy right to discontinue further medical treatment, the court also ruled that given Kenneth's condition, judicial recognition of the primacy of his individual rights posed no threat to the State's interest in preserving life, adversely affected no third parties, and presented no threat to the integrity of the medical profession. The district court thus concluded that Kenneth was entitled to the relief sought.

DISCUSSION

I

Our research revealed five cases involving decisions by competent adults to discontinue the use of life-support systems. Two of the five cases were brought by petitioners who were terminally ill. The other three actions, like the instant case, involved non-terminal, competent adults who were dependent upon artificial life support systems. Relief was granted in each of the five cases, albeit posthumously in two of the cases where petitioners had died before their appeals were decided.

One of the verities of human experience is that all life will eventually end in death. As the seasons of life progress through spring, summer and fall, to the winter of our years, the expression unknown to youth is often heard evincing the wish to one night pass away in the midst of a peaceful sleep. It would appear, however, that as the scientific community continues to increase human longevity and promote "the greying of America," prospects for slipping away during peaceful slumber are decreasing. And, for significant numbers of citizens like Kenneth, misfortune may rob life of much of its quality long before the onset of winter.

Because many individuals find themselves facing a terminal condition susceptible to indefinite suspension by medical intervention, the question arises with increasing frequency and fervor concerning the extent to which persons have the right to refuse an artificial extension of life. Courts considering the question have basically agreed that the answer is to be found in the balancing of interests between the person in extremis and the State. On the one hand is the interest of the individual in determining the extent to which he or she is willing to have a devastated life continued artificially or by radical medical treatment. On the other hand, courts agree that the State has several interests of significance that must be weighed in determining whether the rights of the individual should prevail. Those interests have generally been defined as: (1) the interest of the State in preserving the sanctity of all life, including that of the particular patient involved in a given action; (2) the interest of the State in preventing suicide; (3) the interest of the State in protecting innocent third persons who may be adversely affected by the death of the party seeking relief; and (4) the State's interest in preserving the integrity of the medical profession. We add to the list of State interests, a fifth concern which is the interest of the State in encouraging the charitable and humane care of those whose lives may be artificially extended under conditions which have the prospect of providing at least a modicum of quality living.

Under the common law, "[n]o right is held more sacred, or is more carefully guarded ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 2846, 111 L.Ed.2d 224 (1990) (quoting Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891)). Continuing, the Cruzan court declared that "[t]his notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment." Id. The corollary embodied in the right of informed consent is the right to refuse the proffered medical treatment or regimen irrespective of consequences. See Bartling, 163 Cal.App.3d at 194, 209 Cal.Rptr. 220. Obviously, if a patient is powerless to decline medical treatment upon being properly informed of its implications, the requirement of consent would be meaningless. We nevertheless agree with other courts which have held that the right to refuse medical treatment is not absolute. See Satz v. Perlmutter, 362 So.2d 160, 162 (Fla.App.1978); State v. McAfee, 385 S.E.2d at 652; Cruzan, By Cruzan v. Harmon, 760 S.W.2d 408, 421 (Mo.1988) (en banc); Matter of Farrell, 529 A.2d at 410. Courts have consistently balanced the fundamental right of the individual to refuse medical treatment against the four state interests enumerated above. See, e.g., Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986); Bartling v. Super. Ct. (Glendale Adven. Med.), 163 Cal.App.3d at 186, 209 Cal.Rptr. 220; Satz v. Perlmutter, 362 So.2d at 160; State v. McAfee, 385 S.E.2d at 651; Superintendent Of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); Cruzan, By Cruzan v. Harmon, 497 U.S. at ----, 110 S.Ct. at 2841; Matter of Farrell, 529 A.2d at 404.

Additionally, most courts considering issues involving the so-called right to die have held that individuals have a fundamental constitutional privacy right to withhold or withdraw medical treatment and support that would prolong the process of dying. See, e.g., Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Bouvia v. Superior Court, 179 Cal.App.3d at 1127, 225 Cal.Rptr. 297; Bartling v. Super. Ct. (Glendale...