P.V.W., In re

• Decision Date: 10 December 1982
• Docket Number: No. 82-CA-2637,82-CA-2637
• Citation: 424 So.2d 1015
• Parties: In re P.V.W.
• Court: Louisiana Supreme Court

Page 1015

424 So.2d 1015

In re P.V.W.

No. 82-CA-2637.

Supreme Court of Louisiana.

Dec. 10, 1982.

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Janice B. Unland, Staff Atty., Ronald C. Davis, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Paul G. Mayoral, Asst. Dist. Atty., John A. Hollister, McNulty, O'Connor, Stakelum & Anderson, Susan E. Henning, Stephen M. Sullivan, New Orleans, for appellant.

Cheryl B. Horton, Max Nathan, Jr., Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for appellee.

LEMMON, Justice.

This is an action for a declaratory judgment filed in juvenile court by the parents of a new born infant whose brain allegedly was severely and irreversibly damaged at birth and who has been in a comatose state since birth, with life sustained only by a mechanical ventilator. The attending neonatalists and the hospital joined as petitioners, requesting that the juvenile court conduct an evidentiary hearing and declare that the child is in a "continued profound comatose state", with "no reasonable medical chance of recovery" from that condition, so as to be governed by the provisions of La.R.S. 40:1299.36.1 C. ¹

After appointing an attorney to represent the child and appointing an independent medical expert to render an opinion in the matter, the juvenile court on its own motion ordered that the attorney general and the Department of Health and Human Resources be made respondents. ² When the district attorney (who had been served with a copy of the petition) intervened and filed exceptions, the juvenile court ordered that that official also be made a respondent.

After a pretrial conference, but before the date set for the hearing, the juvenile court rendered a judgment which dismissed the suit on the bases that (1) the juvenile court did not have jurisdiction over the subject matter, (2) there was no justiciable issue, so that the court could not grant a declaratory judgment or any other relief, and (3) La.R.S. 40:1299.36.1 C is an unconstitutional intrusion by the Legislature into the powers and functions of the judiciary in violation of La. Const. Art. II, § 2 (1974). Because a statute was declared unconstitutional, the case is before this court under our appellate jurisdiction. ³ La. Const. Art. V, § 5 (1974).

Justiciability

This case presents issues as to the availability and scope of judicial proceedings which seek, on behalf of an incompetent person, to remove life support systems from the incompetent person's body. ⁴

Courts in other jurisdictions have considered whether there is a right to a judicial approval of discontinuation of life support systems by the parents or guardian of a terminally ill or profoundly comatose patient, in the absence of a procedure expressly authorized by the Legislature. In Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), the court recognized that the right of a comatose patient to discontinue extraordinary medical procedures should not be disregarded simply because the patient cannot assert it. Concluding that the right may be asserted by the family or a guardian on the patient's behalf, the court declared that the life support system could be withdrawn, without any civil or criminal liability on the part of anyone involved in the decision, when the guardian and family of the patient concurred in the decision and the attending physicians, after consultation with an ethics committee or similar body at the hospital, concluded that there is no reasonable medical possibility that the patient will emerge from the comatose state. The court emphasized that rendition of the declaratory judgment did not imply that a judicial procedure for declaratory relief is necessarily required for the implementation of comparable decisions in the field of medical practice.

The Quinlan decision was based on the incompetent person's right to privacy, as asserted by an authorized person exercising judgment for and in the interest of the incompetent person. Acknowledging the competing state interest in the preservation of life, the court concluded that the combination of the extremely poor prognosis and the extremely great bodily invasion vindicated the choice that the incompetent person could reasonably be presumed to have made if she were competent to do so.

The court emphasized that the life support system performed only a maintenance function and did not cure or improve the underlying condition, which all medical officers agreed was permanent and irreversible with no realistic possibility of the patient's returning to any semblance of cognitive or sapient life. Because a person in such condition could not be kept alive against her will (if she had been competent to decide on the removal), the court permitted a decision for removal based on the substituted judgment of the parent or guardian, and the court approved the decision after the underlying facts had been proved in the judicial proceeding.

Significantly, the court also gave tentative declaratory relief (contingent upon the determination on remand that the underlying facts had not changed) from any civil or criminal liability on the part of any parent, guardian, physician, hospital or other participant. The court reasoned that death resulting from the termination of treatment pursuant to the exercise of the right of privacy, within the factual limitation of that case, was not unlawful, even if the death were regarded as homicide.

In Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980), the court recognized that the right to privacy, even in absence of legislation, gives rise to the right of a guardian to apply to the court for authority to have a life support system withdrawn from a comatose patient. ⁵

After discussing whether courts should act at all in such a situation and expressing a preference for legislative action (which had not occurred and might not ever happen), the court concluded that the immediate circumstances, as well as the best interest of the patient, the family, the physicians and the entire community, demanded a solution having the sanction of law. The court further concluded that the right of a terminally ill and comatose person to refuse extraordinary means for prolonging life should be accorded equally to competent and incompetent persons, so that the judiciary (in the absence of legislation) must provide the incompetent person with a method by which that right might be exercised.

Finally, the court established a procedure by which any future applicants were to be governed, declaring that the "neutral presence of the law is necessary to weigh ... [relevant] factors, and thus, judicial intervention is required before any life support system can be withdrawn". ⁶ 426 N.Y.S. at 550. The court stated:

"Accordingly, we hold that the following procedure shall be applicable to the proposed withdrawal of extraordinary life-sustaining measures from the terminally ill and comatose patient. The physicians attending the patient must first certify that he is terminally ill and in an irreversible, permanent or chronic vegetative coma, and that the prospects of his regaining cognitive brain function are extremely remote. Thereafter, the person to whom such certification is made, whether a member of the patient's family, someone having a close personal relationship with him, or an official of the hospital itself, may present the prognosis to an appropriate hospital committee. If the hospital has a standing committee for such purposes, composed of at least three physicians, then that committee shall either confirm or reject the prognosis. If the hospital has no such standing committee, then, upon the petition of the person seeking relief, the hospital's chief administrative officer shall appoint such a committee consisting of no fewer than three physicians with specialties relevant to the patient's case. Confirmation of the prognosis shall be by a majority of the members of the committee, although lack of unanimity may later be considered by the court.

"Upon confirmation of the prognosis, the person who secured it may commence a proceeding pursuant to article 78 of the Mental Hygiene Law for appointment as the Committee of the incompetent, and for permission to have the life-sustaining measures withdrawn. The Attorney General and the appropriate District Attorney shall be given notice of the proceeding and, if they deem it necessary, shall be afforded an opportunity to have examinations conducted by physicians of their own choosing. Additionally, a guardian ad litem shall be appointed to assure that the interests of the patient are indeed protected by a neutral and detached party wholly free of self-interest." 426 N.Y.S. at 550.

In Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980), the court acknowledged the growing number of jurisdictions that recognize a right, cognizable in judicial proceedings, to terminate life support systems. Weighing the state's interest in the preservation of life against the individual's constitutional right of privacy, the court concluded that there is a right to judicial relief:

"[T]here is something approaching consensus in support of some of the principles elaborated in the [Superintendent of Belchertown State School v. Saikewicz, Mass.Sup.Jud.Ct., 373 Mass. 728, 370 N.E.2d 417 (1977) ] opinion. A person has a strong interest in being free from nonconsensual invasion of his bodily integrity and a constitutional right of privacy that may be asserted to prevent unwanted infringements of bodily integrity. Thus a competent person has a general right to refuse medical treatment in appropriate circumstances, to be determined by balancing the individual interest against counterveiling State interests, particularly the State interest in the preservation of life. In striking that balance account is to be taken of the prognosis and of the magnitude of the proposed invasion. The same right is also extended to an incompetent...