Wednesday's Weird But True Legal Cases - Vol XIX

This Wednesday's weird (but true) legal case was inspired by a speech given by R' Frand last week that involved a Canadian family who was villanized in the press for resisting a hospital's urge to discontinue life supporting treatment. It is also inspired by the actions of Jim Valvano and his Jimmy V foundation that was recognized by ESPN today in its annual Jimmy V fundraiser with its motto - don't give up, don't ever give up.

In the matter of In re Gianelli, 15 Misc.3d 565 (Sup. Ct. Nass. Cty 2007), the court reviewed an application filed by a hospital to continue treating a child with a debilitating disease, despite his parents wishes to the contrary.

In Gianelli, the court examined a matter in which a fourteen year old boy was suffering through Hunter Syndrome, a genetic disorder which causes defects in bone, cartilage and connective tissue as well as valve insufficiency in the aortic and mitral valves. The aortic and mitral deficiencies eventually prove fatal (there is no known cure) and the doctor testified that the child would die within two years.

The court observed that DH (as he was referred to in the decision) "is generally not in pain, though he makes it known that he does not like to be suctioned. He experiences pain when he is moved because he is edematous. His connective tissue is filled with water, making him very tight. He is not on any pain medication due to the fleeting nature of the pain, which according to the testimony is felt when he is moved, washed or suctioned."

The child's nurse testified that DH:

is awake, responds to tactile stimulation, tracks and looks at cartoons and movies and tracks his parents when they visit him. She testified that his face brightens when he sees his parents, which in her mind indicates that he is happy to see them. She has observed that he is calm when watching videos and that if he watches videos after he is washed or suctioned his heart rate goes right down and he is relaxed and breathes more easily.

D's mother and father both testified "that they understood that removing the ventilator would hasten D's death, but felt that this was in his best interests to end his suffering. Ms. D testified that D has come to her in her dreams and has encouraged her to let him go and to accept her newborn daughter. D is always happy and at peace in her dreams."

Although to an outsider it might appear cruel that the parents wanted to remove DH's ventilator, the court was compassionate in describing the parents, stating:

There can be no doubt that Ms. D is a devoted mother and has taken extraordinary care of D. She worked closely with doctors and nutritionists as D's condition deteriorated and his ability to eat or drink was curtailed. She massaged D to give him comfort. There is no question that she and her husband want what is best for D. They are aware that his disease is progressive and that he is likely nearing the end of his life. Ms. D visits D every day in the hospital and was his primary caregiver until he was admitted.

When faced with DH's parents request to discontinue treatment, the hospital (following a lengthy review process detailed in the opinion) could not agree, thus presenting the legal quandry that Judge Murphy found herself in.

In discussing the social aspects, Judge Murphy noted that:

The use of artificial means to keep people alive has been a controversial topic, which has riveted and divided the nation. Sonny Von Bulow, Karen Ann Quinlan and Terri Schiavo became household names as the media extensively covered their tragic stories and families, friends, neighbors, advocates on both sides of the issue and elected officials shared their views. Defining what constitutes “artificial means” has also been the subject of heated debate. The courts have not resolved these issues in any global sense, often urging the legislature to act, and to a limited degree in New York, laws have been enacted that begin to address end-of-life decisions.

Following this discussion the court examined the law as it relates to this issue in earnerst, observing that:

The State decisions vary, with New York having one of the strictest standards. A person who is competent can refuse to accept medical treatment. A “clear and convincing” evidence standard must be satisfied in order to terminate artificial life supports for a now-incompetent patient based upon that patient's previously expressed wishes, while competent, not to be kept alive by artificial means. The
right to decline treatment is a personal one and cannot be exercised by a third party when the patient is unable to do so. The Court of Appeals has refused to make a judgment as to what is for another an unacceptable quality of life. No person or court should substitute its judgment as to what would be an acceptable quality of life for another. However, if it is shown by clear and convincing evidence that the patient, if competent, would have rejected nutrition and hydration by artificial means, the clearly expressed desires of the individual to die with dignity should be honored. “The evidence must be unequivocal when the decision to terminate life support is at issue."

The court then recited the four part test in NY for such determinations, stating:

In determining whether it is appropriate to exercise the State's parens patriae authority to protect those citizens unable to care for themselves, four compelling state interests must be weighed by the courts in making medical treatment decisions: (1) the preservation of life; (2) the prevention of suicide; (3) the protection of innocent third parties; and (4) the maintenance of the ethical integrity of the medical profession.

Ultimately, the court granted the hospital's application and continued the use of the ventilator, explaining that:

The parents, guardian ad litem, treating physicians and the hospital are not in agreement that discontinuing the ventilator is in D's best interests. Had they been, it is unlikely that this case would have necessitated judicial intervention. Contrary to the facts of the Matter of AB, where the child was unaware and completely lacking in brain function, the treating doctor and nurse both testified that D is aware and enjoys TV and videos. D recognizes his mother. This Court appreciates that young D has lived a very difficult life, suffering from a progressive life threatening and altering disease. It is, however, D's life to live and this Court will not consider or determine whether it is a life worth living from anyone's perspective other than D's.

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