Rasmussen by Mitchell v. Fleming, CV-86-0450-PR

• Decision Date: 23 July 1987
• Docket Number: No. CV-86-0450-PR,CV-86-0450-PR
• Citation: 154 Ariz. 207,741 P.2d 674
• Parties: , 56 USLW 2090 Mildred RASMUSSEN by Douglas P. MITCHELL, her Guardian ad Litem, Appellant, v. Robert FLEMING, Pima County Public Fiduciary, as Guardian for Mildred Rasmussen, Appellee.
• Court: Arizona Supreme Court

Page 674

741 P.2d 674

154 Ariz. 207, 56 USLW 2090

Mildred RASMUSSEN by Douglas P. MITCHELL, her Guardian ad Litem, Appellant, v. Robert FLEMING, Pima County Public Fiduciary, as Guardian for Mildred Rasmussen, Appellee.

No. CV-86-0450-PR.

Supreme Court of Arizona, In Banc.

July 23, 1987.

John J. Jakubczyk, Phoenix, Americans United for Life Legal Defense Fund by Edward R. Grant, Clarke D. Forsythe, Chicago, Ill., for amicus curiae Americans United for Life Legal Defense Fund.

Clinical Law Office, University of Maryland, School of Law by Stanley S. Herr, Associate Professor, Gisele Matthews, Law Student, Baltimore, Md., for amici curiae for the Ass'n for Retarded Citizens of the U.S., the Ass'n for Retarded Citizens of Arizona, and the Intern. League of Societies for Persons with Mental Handicap.

Public Interest Law Center of Philadelphia by Frank J. Laski, Philadelphia, Pa., for amicus curiae The Ass'n for Persons with Severe Handicaps.

Douglas P. Mitchell, Tucson, for appellant.

Robert B. Fleming, Former Pima County Public Fiduciary, Kate McMillan, Pima County Public Fiduciary, Alyce Pennington, Tucson, for appellee.

Society for the Right to Die, Inc. by Fenella Rouse, New York City, for amicus curiae Society for the Right to Die, Inc.

Mark J. Theut, Phoenix, National Legal Center for the Medically Dependent and Disabled by James Bopp, Jr., Thomas J. Marzen, Thomas J. Balch, Mary M. Nimz, Indianapolis, Ind., for amicus curiae Bd. of Directors of the United Handicapped Federation.

GORDON, Chief Justice.

Not long ago the realms of life and death were delineated by a bright line. Now this line is blurred by wondrous advances in medical technology--advances that until recent years were only ideas conceivable by such science-fiction visionaries as Jules Verne and H.G. Wells. Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity.

As more individuals assert their right to refuse medical treatment, more frequently do the disciplines of medicine, law, philosophy, technology, and religion collide. This interdisciplinary interplay raises many questions to which no single person or profession has all the answers. Thus, we approach this case of first impression involving the right to refuse medical treatment with extreme caution and humility, mindful

[154 Ariz. 212] of the profound and overwhelming sense of responsibility that accompanies the power to resolve what in this and similar future medical treatment cases are all too often life-and-death issues.

FACTS

Mildred Rasmussen was admitted to the Posada Del Sol Nursing Home in Tucson in 1979 at the age of 64. Before her admission she had led an independent life, formerly practicing as a chiropractor. After admission, Rasmussen's physical and mental conditions deteriorated to the point where she received fluids and nourishment through a nasogastric tube.

The Pima County Public Fiduciary commenced a proceeding in Pima County Superior Court in May 1985 to be appointed as guardian for the purpose of consenting to removal of the nasogastric tube. ¹ The court, acting pursuant to A.R.S. § 14-5303, appointed a guardian ad litem as counsel for Rasmussen, a physician to examine Rasmussen, and a "visitor" ² to visit Rasmussen. Rasmussen's immediate family members, three siblings residing in Iowa, were notified of the guardianship proceedings.

Testimony at the guardianship proceedings indicated that Rasmussen had suffered three strokes and was suffering from a degenerative neural muscular disease and/or an organic brain syndrome. She was unable to care for herself and remained in bed in a fetal position. Nurses administered basic care and medication. After considering Rasmussen's diagnosis and prognosis, her treating physician had placed on her chart a "do not resuscitate" (DNR) order and a "do not hospitalize" (DNH) order. The DNR order directed that Rasmussen not be resuscitated if she suffered cardiac arrest or a similar condition. The DNH order permitted medical personnel to provide only basic comfort care. Certain diseases, such as pneumonia, gangrene, and urinary tract infections, were to run their natural course. Although Rasmussen's siblings did not take an active role in the determination of Rasmussen's treatment, they expressed a willingness to abide by the decision to place DNR and DNH orders on Rasmussen's medical chart. The guardian ad litem objected to the appointment of the Public Fiduciary as guardian unless there was an affirmative order that the guardian remove the DNR and DNH orders from the medical chart.

Debra Douthitt, a case investigator for the Pima County Public Fiduciary, testified that although Rasmussen occasionally opened her eyes upon being touched, she could not visually track or respond to Douthitt's commands. Douthitt also testified that nurses thought Rasmussen still retained some cognitive functioning because Rasmussen would make throaty sounds or spew mucus when the nasogastric tube was removed and reinserted. Lynn Peterson, Rasmussen's advocate-friend, testified that Rasmussen would respond to certain questions or other stimuli by moving her eyes or making humming or grunting noises. Peterson believed that Rasmussen still had the ability to think but simply could not express her thoughts. Stephen Cox, medical director of the long-term care division of the Department of Aging and Medical Services of Pima County, medical director at Posada Del Sol, and Rasmussen's former physician, testified that Rasmussen had been in a nonverbal and essentially vegetative state since 1983. Dr. Cox had never been able to elicit a response to stimulus that would indicate a real cognitive basis for the response. In his opinion, Rasmussen existed in a chronic vegetative state from which she had a zero probability of returning to a higher level of After the two-day evidentiary hearing, the trial court in its findings of fact concluded that Rasmussen had existed in a chronic vegetative state since May 1983 and that Rasmussen's wishes regarding her present care could not be determined from evidence presented. As a matter of law, the trial court concluded that Rasmussen was incapacitated as statutorily defined; ³ a guardian of an incapacitated person has the authority to exercise the ward's right to refuse care; the proper method for a guardian to determine the appropriateness of refusing care for the ward is the "substituted judgment" approach whereby the guardian's decisions are guided by the ward's prior acts, writings, and statements concerning medical care; if the guardian is unable to apply the "substituted judgment" approach, then his decisions should be guided by the ward's "best interests"; and the guardian's decision to withhold care for a ward is subject to court review. The trial court then appointed the Public Fiduciary as Rasmussen's guardian without restriction.

[154 Ariz. 213] functioning. William Masland, a court-appointed neurologist, testified that Rasmussen existed in a profound vegetative state from which she would never recover. According to Dr. Masland, Rasmussen was brain-dead because all parts of her brain necessary for any sort of cognitive function, self-awareness, and perception of surroundings no longer functioned. Masland also stated that stimulus response did not necessarily indicate cognitive perception. In Masland's opinion, the stimulus responses suggested during earlier testimony were no more than primitive reflexive movements.

The guardian ad litem appealed the trial court's decision to appoint the guardian without restriction. Before the court of appeals rendered its decision, Rasmussen died from complications following pneumonia. The court nevertheless retained the matter for decision because "[t]he issues presented here are of great importance to legal practitioners, families, guardians, doctors, hospitals and nursing home staff who face similar situations on a daily basis...." Rasmussen v. Fleming, 154 Ariz. 200, 201, 741 P.2d 667, 668 (App.1986). The court then held: (1) the Medical Treatment Decision Act was inapplicable in this case; (2) the right to refuse medical treatment is based upon the federal and state constitutional right of privacy; (3) no state interests were sufficient to counterbalance Rasmussen's right of privacy; (4) either a family member or a guardian could assert Rasmussen's right to refuse medical treatment; and (5) in this and future cases where the incompetent patient has never expressed her medical desires, decisions concerning the patient's medical treatment are to be guided by the "best interests" standard. The court also enunciated certain procedural safeguards to follow in similar cases when determining which types of persons can make decisions for individuals incapable of making decisions.

We granted the guardian ad litem's petition for review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Rule 23, Ariz.R.Civ.App.Proc., 17A A.R.S. (1986 Supp.).

MOOTNESS

This particular controversy became moot when Rasmussen died. We have discretion, however, to decide questions which have become moot. See State v. Valenzuela, 144 Ariz. 43, 44, 695 P.2d 732, 733 (1985); Miceli v. Industrial Commission, 135 Ariz. 71, 73, 659 P.2d 30, 32 (1983).

The novel and difficult issues underlying this proceeding transcend the physical problems that afflicted Rasmussen and did not perish with her. The underlying issues are of significant public importance and are capable of repetition but are likely to evade full review, even when review is expedited.

Other jurisdictions have declined to rely on the death of the real party in interest and the mootness doctrine to avoid resolving issues...