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Death and Dying Module - Advance Care Planning
  • 1 A. Medical Information About End-Of-Life Treatment

  • 2 B. Statutory Methods of Advance Care Planning

  • 3 C. Articles

  • 4 D. Cases Highlighting Specific Statutory Limitations of Advance Directives

    • 4.1 1. Diagnosed Terminal Illness

      • 4.1.1 Wright v. Johns Hopkins Health Systems Corp

        1
        728 A.2d 166 (1999)
        2
        353 Md. 568
        3
        Jeanette WRIGHT et al.
        v.
        The JOHNS HOPKINS HEALTH SYSTEMS CORPORATION et al.
        4
        No. 71, September Term, 1998.
        5

        Court of Appeals of Maryland.

        6
        April 20, 1999.
        7

        [167] Matt R. Ballenger (T. Christine Pham, Suder & Suder, P.A., on brief) of Baltimore, for appellants.

        8

        Carol A. Zuckerman (Eric R. Harlan, Whiteford, Taylor & Preston, L.L.P., on brief) of Baltimore, for appellees.

        9

        Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

        10
        RODOWSKY, Judge.
        11

        In this action the estate and parents of an unmarried decedent sue a number of health care providers on the ground that the defendants wrongfully prolonged the decedent's life by resuscitating him from cardiac arrest, allegedly contrary to the instructions in his advance directive and to his expressed intent. The Circuit Court for Baltimore City granted the defendants' motion for summary judgment. For the reasons set forth below, we shall affirm.

        12

        The petitioners, plaintiffs below, are Jeanette Wright, individually and as personal representative of the Estate of Robert Lee Wright, Jr. (Wright), and Robert Lee Wright, Sr., individually. The respondents, defendants below, are the Johns Hopkins Health Systems Corporation, the Johns Hopkins Hospital, and the Johns Hopkins University (collectively, Johns Hopkins), and four physicians, individually and as agents of Johns Hopkins, John Bellan, M.D., Larry Buxbaum, M.D., James Miller, M.D., and John Bartlett, M.D. (collectively, the defendant physicians).

        13

        The complaint alleges breaches of duty under statutory and common law which we shall review before presenting the facts of this case.

        14
        I. The Common Law and the Health Care Decisions Act
        15

        In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L.Ed.2d 224 (1990), the United States Supreme Court emphasized that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life-sustaining medical procedures. Id. at 281, 110 S. Ct. at 2853, 111 L. Ed.2d at 243 ("It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining [168] medical treatment."). See Mack v. Mack, 329 Md. 188, 211, 618 A.2d 744, 755-56 (1993) ("Although the United States Supreme Court's decision in Cruzan made no holding on the subject, all of the justices, save Justice Scalia, either flatly stated or strongly implied that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life saving hydration and nutrition.") (citation omitted).

        16

        Under Maryland common law, a competent adult has the right to refuse medical treatment and to withdraw consent to medical treatment once begun. Mack, 329 Md. at 210-11, 618 A.2d at 755-56. The right exists even though an individual is unable to exercise that right for himself. Id. at 211, 618 A.2d at 756. This right is a corollary to the common law doctrine of informed consent, which

        17

        "`follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine... is the patient's right to exercise control over his own body, ... by deciding for himself whether or not to submit to the particular therapy.'"

        18

        Id. at 210, 618 A.2d at 755 (quoting Sard v. Hardy, 281 Md. 432, 438-39, 379 A.2d 1014, 1019 (1977)) (citation omitted).

        19

        This right is not absolute, but is subject to at least four countervailing State interests:

        20

        "`(1) the preservation of life; (2) the protection of interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession.'"

        21

        Id. at 210 n. 7, 618 A.2d at 755 n. 7 (quoting Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 432, 497 N.E.2d 626, 634 (1986)).

        22

        Additionally, where another is speaking on behalf of an incapacitated individual, it is that person's burden to prove, by clear and convincing evidence, the critical facts demonstrating that the incapacitated individual's judgment is, or would be, that life-sustaining procedures should be withheld or withdrawn were that individual to be in a certain condition. See Mack, 329 Md. at 208, 618 A.2d at 754 (holding that "requests to withdraw sustenance from a person in a persistent vegetative state [require] the proponent of withholding or withdrawing life support to bear the burden of proving by clear and convincing evidence that the ward's decision would have been to forego life support").

        23

        In addition to constitutional and common law rights to refuse life-sustaining medical procedures, an individual's ability to direct in advance his choice concerning whether to refuse life-sustaining procedures is based in statutory law. Prior to October 1993, the Life-Sustaining Procedures Act governed the form and effect of advance directives. Md. Code (1982, 1990 Repl. Vol.), §§ 5-601 through 5-614 of the Health-General Article. The Life-Sustaining Procedures Act permitted an individual, who was qualified to execute a will, to execute a declaration, called an advance directive, directing the withholding or withdrawal of life-sustaining procedures in the event two physicians certified the individual to be in a terminal condition. Id. § 5-602.

        24

        This act was criticized, especially in that the advance directives only applied to individuals imminently facing death, without including individuals in a persistent vegetative state, and the act was ambiguous with regard to the withholding or withdrawal of artificially administered sustenance necessary for comfort care and to alleviate pain. J.C. Byrnes, Life-Support Withdrawal: Law of Commiseration or Principle?, 2:2 Md. J. Contemp. Legal Issues 331, 348-49 (1991). As Attorney General Curran observed in 1988, decisions about life-sustaining medical procedures were being made "against a background of legal confusion." 73 Op. Att'y Gen. 162, 169 (1988).

        25

        In May 1993, the General Assembly repealed the Life-Sustaining Procedures Act and enacted the Health Care Decisions Act (the Act), by Chapter 372 of the Acts of 1993, codified in Md. Code (1982, 1994 Repl. Vol., 1998 Cum. Supp.), §§ 5-601 through 5-618 of [169] the Health-General Article (HG).[1] The Act overlies an individual's existing common law right to refuse life-sustaining medical procedures:

        26

        "The provisions of this subtitle are cumulative with existing law regarding an individual's right to consent or refuse to consent to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor or incompetent patient, or a patient's family may have in regard to the provision, withholding, or withdrawal of life-sustaining procedures under the common law or statutes of the State."

        27

        § 5-616(a).

        28

        The Act establishes the framework by which health care decisions may be made. An individual, called the declarant, may make an advance directive. This may be done orally or in writing. § 5-601(b). The declarant may also appoint an agent for health care. § 5-601(c). Or, the decision may be made by some other surrogate. § 5-605.

        29

        Under the Act "[a]ny competent individual may, at any time, make a written advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual." § 5-602(a). The writing must be signed by or at the express direction of the declarant, dated, and subscribed by two witnesses. § 5-602(c)(1).

        30

        With regard to an oral advance directive, the Act provides that "[a]ny competent individual may make an oral advance directive to authorize the providing, withholding, or withdrawing of any life-sustaining procedure or to appoint an agent to make health care decisions for the individual." § 5-602(d). An oral advance directive made after October 1, 1993, must be "made in the presence of the [declarant's] attending physician and one witness and documented as part of the [declarant's] medical record." Id. The attending physician and the witness must sign and date the documentation in the medical record. Id.

        31

        It is the responsibility of the declarant to notify the attending physician that the declarant has made an advance directive; if the declarant is comatose, incompetent, or otherwise incapable of communication, any other person may notify the attending physician. § 5-602(f)(1).

        32

        Once an attending physician is notified of a written advance directive the physician must make the advance directive, or a copy of it, a part of the declarant's medical records. § 5-602(f)(2)(i). Once an attending physician is notified of an oral advance directive, the physician must "make the fact of the advance directive, including the date the advance directive was made and the name of the attending physician, a part of the declarant's medical records." § 5-602(f)(2)(ii).

        33

        An advance directive becomes effective either when conditions specified by the declarant are determined to have been satisfied in the manner specified by the declarant or "when the declarant's attending physician and a second physician certify in writing that the patient is incapable of making an informed decision" regarding the treatment. §§ 5-602(e)(1), 5-606(a)(1). This certification must be made prior to providing, withholding, or withdrawing medical treatment, and within two hours after the declarant has been personally examined by one of the two certifying physicians. § 5-606(a)(1). An adult is considered to be "incapable of making an informed decision" when the declarant is unable

        34

        "to make an informed decision about the provision, withholding, or withdrawal of a specific medical treatment or course of treatment because the patient is unable to understand the nature, extent, or probable consequences of the proposed treatment or course of treatment, is unable to make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment, or is unable to communicate a decision."

        35

        § 5-601(l)(1). Compare §§ 5-602(e)(2), 5-606(a)(2) (providing that, if the declarant is unconscious or unable to communicate by any means, only the written certification of the attending physician is required).

        36

        Additionally, where the declarant has an advance directive but has not appointed a [170] health care agent, a health care provider cannot withhold or withdraw life-sustaining procedures[2] on the basis of the advance directive unless two physicians certify that the declarant is in one of three diagnostic conditions: a terminal condition, an end-stage condition, or a persistent vegetative state. § 5-606(b). If the condition is a terminal condition[3] or an end-stage condition,[4] the declarant's attending physician and a second physician must certify that the declarant is in a terminal or end-stage condition. § 5-606(b)(1). If the condition is a persistent vegetative state,[5] two physicians, one of whom is a neurologist, neurosurgeon, or other physician who has special expertise in the evaluation of cognitive functioning, must certify that the declarant is in a persistent vegetative state. § 5-606(b)(2).

        37

        Appointment by a declarant of an agent for health care is addressed in § 5-602(b)(1). An individual who is competent "may, at any time, make a written advance directive appointing an agent to make health care decisions for the individual under the circumstances stated in the advance directive." Id. An instrument appointing a health care agent must comply with the signature and attestation requirements for an advance directive. § 5-602(c). "[T]he threshold of inability for being declared `incapable of making an informed decision' ... must be reached before an advance[] directive, appointment of a health care agent, or surrogate decisionmaking may become operative to govern health care decisionmaking." J.F. Fader II, The Precarious Role of the Courts: Surrogate Health Care Decisionmaking, 53 Md. L.Rev. 1193, 1210-11 (1994) (footnote omitted). If a health care agent has been appointed, and if two physicians have certified as to the declarant's incapacity, there is no express requirement for physician certification that the declarant is in one of the three defined diagnostic conditions prior to withholding or withdrawing life-sustaining procedures.[6]

        38

        Another type of agent for health care under the Act is a surrogate decisionmaker. Under the priority scheme set forth in the Act, where the declarant has no guardian, spouse, or adult child, the declarant's parent(s) "may make decisions about health care for a person who has been certified to be incapable of making an informed decision and who has not appointed a health care agent." § 5-605(a)(2). The surrogate decisionmaker [171] must base his decisions for the declarant on the declarant's wishes (substituted judgment), considering six factors outlined in § 5-605(c)(2)(i) through (vi), or, if the declarant's wishes are unknown or unclear, on the declarant's best interest. § 5-605(c). A surrogate decisionmaker's ability to withhold or withdraw life-sustaining procedures is limited to situations in which the declarant is certified by two physicians to be in one of the three defined diagnostic conditions. § 5-606(b).

        39

        The Attorney General has also opined that a durable power of attorney authorization under Maryland Code (1974, 1991 Repl.Vol., 1998 Cum.Supp.), § 13-601 of the Estates and Trusts Article may be used to authorize an agent to direct the withholding or withdrawal of life-sustaining procedures.

        40

        "A person (the principal) may use a durable power of attorney to direct an agent (the attorney in fact) to carry out the principal's specific directive concerning medical treatment, including the withholding or withdrawing of artificially administered sustenance under specified circumstances. Alternatively, a principal may choose to empower the attorney in fact to make all medical decisions on his or her behalf, rather than directing a specific treatment decision."

        41

        73 Op. Att'y Gen. at 184.

        42
        II. The General Facts
        43

        On July 18, 1994, Wright, age 33, was transported by ambulance from his home to the Moore Clinic, an outpatient HIV facility at the Johns Hopkins Hospital in Baltimore City. He was suffering from AIDS and was, on that day, complaining of fever, a worsening cough, poor oral intake, and diarrhea. From the Moore Clinic, Wright was admitted as an inpatient to the Osler 8 medicine service at the hospital for evaluation and treatment. From July 18 until July 20, Wright was treated in Osler 8 for acute renal failure. During that time his family regularly visited with him.

        44

        On July 20, Wright telephoned his mother to tell her that he would be coming home that day after he finished receiving a blood transfusion. The purpose of the blood transfusion was to increase his circulating blood volume, which tended to improve his well-being.

        45

        Within minutes after the transfusion was completed, Wright was found unresponsive and without a pulse. Dr. James Miller, the resident physician assigned to care for Wright in Osler 8, directed that cardiopulmonary resuscitation (CPR) be administered. Wright was also intubated to assist his breathing. Breathing and circulation were restored. Wright was then transferred from Osler 8 to the medical intensive care unit (MICU) at Johns Hopkins.

        46

        Wright's mother, father, and home health care nurse arrived at the hospital after having been informed of the incident.

        47

        A physician informed Wright's parents that it was their decision whether to keep Wright in the MICU or to send him back to Osler 8. The mother requested that Wright's breathing tube be removed and that he be sent back to Osler 8. She requested comfort care treatment only for her son.

        48

        The transfer order from the MICU to Osler 8, bearing date of July 20, states: "Pt. is DNR/DNI."[7] The transfer note, dated July 21, describes the occurrence as follows:

        49

        "[Patient] was found in full arrest today by nursing staff after receiving a blood transfusion. Total CPR @ 10 min. Successful intubation and conversion from course V-fib to supraventricular tach. Transferred to MICU. After transfer Osler 8 team informed by home health nurse that [patient] had written living will and expressed wish to be DNR/DNI.

        "[Patient] was extubated on MICU and continued to breath spontaneously. Transferred back to floor....

        "We will provide comfort care and make no further attempt to reintubate or resuscitate [patient] again per his expressed wishes." [8] [172] A consultation report written shortly after the occurrence concluded with certain recommendations, one of which read: "Would contact ethics committee to discuss medical-legal [and] ethical issues i.e., withholding of IVFs, nutrition, antibiotics etc."

        50

        Following the occurrence, Wright lay in a coma for two days. His mother testified that Dr. Miller informed her that Wright had suffered sixty-five percent brain damage. She further stated that after regaining consciousness Wright could only moan and call out for her. He died on July 30, 1994, ten days after his cardiac arrest.

        51

        Wright had been HIV positive since the mid-1980s and began treatment at Johns Hopkins around 1990. An assessment for HIV case management by Johns Hopkins was made on February 12, 1993. On his HIV Case Management Psychosocial Form, Wright checked a space indicating that he needed legal assistance and inserted the comment "Living Will, Power of Attorney." On his HIV Case Management Plan of Care worksheet, in the "Legal Concerns" section, Wright checked the preprinted goal reading "[d]evelop legal plans to meet present and future life planning concerns." On that same page, under the sub-heading "Life Planning Decisions," he placed a checkmark next to "Do not resuscitate (DNR)" and "Living Will/Durable Power of Attorney decisions."

        52

        Less than two weeks later, on either February 22 or 23, Wright executed a document entitled "Declaration of Life-Sustaining Procedures (Living Will)." Wright's Living Will directed that life-sustaining procedures be withheld or withdrawn in the event that two physicians (a) certify Wright to be in a terminal condition as a result of any incurable injury, disease, or illness, and (b) determine that Wright's death is imminent and will occur whether or not life-sustaining procedures that would only serve to prolong the dying process were utilized. The Living Will was signed by Wright and his mother and attested by two witnesses.[9]

        53

        The first page of a document entitled "Durable Power of Attorney for Healthcare" is also in evidence. That page does not contain the spaces for signatures and a date. Wright's mother represented to this Court that Wright executed this document in February 1993. Page one contains the appointment of Wright's mother as his "agent to make healthcare decisions for [him] as authorized in this document," and the appointment of his father as alternate health care agent. Page one states that Wright's mother's durable power of attorney for health care becomes effective upon the certification by two physicians that Wright is incapable of making certain decisions:

        54

        "2. Creation and Effectiveness of Durable Power of Attorney for Healthcare

        "With this document I intend to create a durable power of attorney for healthcare, which shall take effect when and if two physicians, one of whom is my attending physician, certify that I am disabled because [173] I lack sufficient understanding or capacity to make or communicate decisions with respect to my own health care. The power shall continue in effect during my disability."

        55

        The document also states what authority is granted to the health care agent:

        56

        "3. General Statement of Authority Granted

        "Except as indicated in Section 4, below,[[10]] I hereby grant to my agent named above full power and authority to make healthcare decisions on my behalf; including the following:

        ....

        (5) To direct the withholding or withdrawal of life-sustaining procedures or measures when and if I am terminally ill or permanently unconscious. Life-sustaining procedures or measures are those forms of medical care which only serve to artificially prolong the dying process, and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of medical treatment which stimulate or maintain vital bodily functions. Life-sustaining procedures do not include care necessary to provide comfort or alleviate pain."

        57

        Additional facts will be stated in the discussion of specific issues.

        58
        III. Procedural History
        59

        The complaint contains four counts. In Count One ("Negligence-Survival Act"), Wright's mother, as personal representative of Wright's estate, alleged that on July 20, 1994, the defendants negligently administered CPR contrary to Wright's Living Will and "negligently failed to reasonably, timely and properly explore and/or inquire as to Decedent's intentions concerning resuscitation," which resulted in Wright experiencing "additional unnecessary neurological impairment, pain and suffering, and ultimately ... a prolonged, painful and tragic death on July 30, 1994." In Count Two ("Wrongful Death"), Wright's parents alleged that Wright's suffering that resulted from the resuscitation caused them "mental anguish, unremitting grief and sorrow and pecuniary loss." In Count Three ("Battery"), Wright's parents alleged that the defendants "conducted an intentional, non-consensual harmful and/or offensive touching of the Decedent when they instituted resuscitative measures in violation of Decedent's advance[] directives and/or failed to timely explore Decedent's desires regarding resuscitative measures." In Count Four ("Lack of Informed Consent"), Wright's parents alleged that the defendants

        60

        "failed to obtain Plaintiffs' informed consent in that they negligently failed to disclose to Plaintiffs all material information, including, but not limited to, the nature of the proposed treatment [i.e., CPR]; the probability of success of the contemplated resuscitation and its alternatives; the risks and unfortunate consequences associated with such a treatment; and were otherwise negligent in failing to provide them with proper informed consent."

        61

        The parents stated that "[a]ny reasonable person, under the same or similar circumstances, if provided with such material information, would have withheld consent to the treatment, and would have sought alternative measures and would not have been subjected to continuing pain and suffering." Pursuant to Maryland Code (1974, 1998 Repl.Vol.), § 3-2A-06B of the Courts and Judicial Proceedings Article (CJ), the plaintiffs elected to waive arbitration.

        62

        After taking Wright's mother's deposition, the defendants moved for summary judgment, arguing that they were statutorily immune from liability, that Wright's Living Will never became operative, that there is no legally cognizable claim for Wright's "wrongful life" damages, that no wrongful act caused Wright's death, that no battery occurred, and that the emergency of the cardiac arrest suspended the physicians' duty to obtain informed consent.

        63

        Wright's parents opposed the motions, filing an affidavit from Wright's mother and, later, an affidavit from Dr. William J. Brownlee. The plaintiffs argued that the defendants were not statutorily immune; that the [174] Living Will was operative at the time of the resuscitation, or that, even if the Living Will was statutorily invalid, Wright exercised his common law right to refuse medical treatment; and that the administering of CPR was the wrongful act causing Wright's death. In a supplemental memorandum of law the parents argued that, contrary to Johns Hopkins's written policies, the defendants failed to place Wright's Living Will in his medical chart and failed to discuss the matter of resuscitation with him.

        64

        The circuit court entered judgment for the defendants for reasons stated in a lengthy written opinion. Much of the opinion reviewed facts as asserted by the plaintiffs and held that they did not alter the legal result. The court concluded that, at the time of his cardiac arrest, Wright was not in a terminal or an end-stage condition. Nor were the defendants "required to delay resuscitation even for the minutes required to seek and obtain either consent of a health care agent or formal medical certification of the decedent's pre-arrest medical condition as might warrant a declination to resuscitate."

        65

        With regard to Wright's Living Will, the court concluded that, although there may exist a dispute of facts as to "institutional pre-resuscitation knowledge of that advance directive," the conditions precedent to trigger the Living Will, that is, physician certification that Wright was in a terminal condition or imminently facing death, had not been met. With regard to oral directives by Wright the court held that, if the health care providers who resuscitated Wright could be shown to have been on notice of contrary oral directives at that time, they were not documented in Wright's medical records as required under the Act and were, therefore, not binding on other, subsequently-involved physicians.

        66

        Further, agreeing with an opinion by the Attorney General, 79 Op. Att'y Gen. 137 (1994), the court held that certain uncertified oral statements by Wright lacked "reasonable clarity for informed medical implementation," and that there was no evidence that cardiac arrest had been predicted and particular consideration given to a DNR in that event.

        67

        Wright's parents appealed to the Court of Special Appeals. Prior to that court's consideration of the case, Johns Hopkins and the defendant physicians petitioned this Court for a writ of certiorari. Wright's parents cross-petitioned. We granted both petitions. Johns Hopkins Hosp. v. Wright, 350 Md. 280, 711 A.2d 871 (1998).[11]

        68
        IV. The Issues
        69

        The parties have raised numerous and somewhat overlapping issues. They are:

        70

        1. Under the Act or the common law, does an individual, and, accordingly, the individual's estate, have a cause of action for a health care provider's failure to comply with the individual's advance directive?

        71

        2. Did the plaintiffs set forth sufficient facts to state causes of action for negligence, wrongful death, battery, and lack of informed consent?

        72

        3. Under the Act, does a sudden and unforeseen cardiac arrest render an otherwise non-terminal individual "terminal," thereby triggering the operation of an advance directive?

        73

        4. Under the Act or the common law, once an individual makes an advance directive, what measures must one or more individual health care providers at an institution take to notify other individual health care providers at the same institution of the advance directive?

        74

        5. Under the Act, is a health care provider immune from liability for providing life-sustaining procedures to an individual who has directed in advance that life-sustaining procedures be withheld or withdrawn in certain circumstances?

        75

        6. Under Maryland law, are the damages resulting from the administration of a life-sustaining procedure a compensable "injury"?

        76

        7. In an emergency situation, is a health care provider liable for providing [175] life-sustaining procedures to an individual who has made an advance directive if the health care provider is unaware of the advance directive, believes the advance directive not to be operative, or cannot ascertain the individual's intentions regarding the provision of life-sustaining procedures?

        77

        We shall assume, arguendo, that the answer to the first issue is "yes." Nevertheless, because the answer to issue two is "no," we affirm the judgment of the circuit court. Accordingly, it is unnecessary specifically to address the remaining issues.

        78
        V. The Negligence Claim
        79

        There are three aspects to the plaintiffs' contention that the defendants breached a duty to Wright to withhold resuscitation: (A) violation of the instructions in the Living Will; (B) violation of a statutorily recognized, oral advance directive; and (C) violation of a legally effective, oral DNR instruction that does not meet the formal requirements of the Act. In analyzing each of these arguments the evidence most favorable to the plaintiffs is that the Living Will was in Wright's chart at Osler 8 on July 20, 1994.

        80
        A. The Living Will
        81

        Wright's Living Will was executed on either February 22 or 23, 1993, prior to the October 1, 1993 effective date of the Act. The Living Will was therefore executed pursuant to the then-effective Life-Sustaining Procedures Act, Md.Code (1982, 1990 Repl. Vol.), HG § 5-602. In fact, Wright's Living Will follows substantially verbatim the model form for a living will set forth in that prior law. See id. § 5-602(c). The Act, however, states that "[a] valid living will or durable power of attorney for health care made prior to October 1, 1993 shall be given effect as provided in this article, even if not executed in accordance with the terms of this article." § 5-616(b). Therefore, Wright's February 1993 Living Will is governed by the Health Care Decisions Act.

        82

        Under the Act, an advance directive becomes operative either under the conditions specified by the declarant, or, if no such conditions are specified, upon the written certification of two physicians that the declarant is incapable of making an informed decision. § 5-602(e)(1). In this case, Wright did specify the conditions that trigger the operation of the advance directive. His Living Will provided:

        83

        "If at any time I should have any incurable injury, disease or illness certified to be a terminal condition by two (2) physicians who have personally examined me, one (1) of whom shall be my attending physician, and the physicians have determined that my death is imminent and will occur whether or not life-sustaining procedures are utilized and where the application of such procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally...."

        84

        There is no evidence that any physicians certified that Wright was in a terminal condition and that his death was imminent. Therefore, under its terms the Living Will never became operative. As a result, even if the Osler 8 attending physician was on notice of Wright's Living Will, that advance directive would not have precluded the attending physician from resuscitating Wright in the event of a cardiac arrest.

        85

        Wright's parents dispute that the Living Will was not operative. First, they contend that at the time of the resuscitation Wright's medical condition was terminal and his death was imminent. This argument, however, does not overcome the lack of the physicians' certification at the time of the resuscitation that was required to trigger the operation of the Living Will.

        86

        Second, Wright's parents submit that "[r]egardless of whether the written Advance Directive was operable in and of itself, it nonetheless operates as a clear directive of Decedent not to have any life-sustaining procedures performed on him." The Living Will actually indicates a contrary directive; that is, a directive to have life-sustaining procedures performed only in the specified circumstances which are to be determined to exist by two physicians.

        87

        [176] Third, Wright's parents argue that Wright was extubated after the physicians "realized that the Decedent had signed an Advance Directive refusing life-sustaining treatment," thereby acknowledging that Wright's Living Will was operative despite the lack of certification. The direct and seemingly undisputed evidence from the medical records and from Wright's mother's deposition testimony is that Wright was extubated pursuant to his family's request and not the Living Will. Viewing the extubation solely in terms of the Living Will, and ignoring the mother's agency for health care, it was the withdrawal of life-sustaining procedures, without the conditions of the Living Will having been satisfied, that was not authorized. The plaintiffs, however, cannot complain of this deviation from the authorization of the Living Will because they requested the extubation.

        88
        B. Oral Advance Directive
        89

        Nor is the Act's recognition of oral advance directives of assistance to the plaintiffs. An oral advance directive that is effective under the Act must be made in the presence of the attending physician and one witness and must be documented as part of the patient's medical record. § 5-602(d). In this case the medical record does not document any oral directive, as that term is used in the statute.

        90
        C. DNR Order
        91

        The plaintiffs direct their principal arguments to attempting to cobble from pieces of evidence a non-statutory, oral advance directive by Wright that his chart was to be coded DNR. It is undisputed, however, that no DNR order was in Wright's medical record. Further, Wright's mother admitted on deposition that she did not know whether her son ever expressed to Dr. Miller her son's wish "that if he got to the point where he was unable to eat on his own and breathe on his own, he didn't want those types of functions to be carried out by machinery." She also admitted that she did not know if her son expressed to anyone, other than herself, his wish that "if he had a heart attack he didn't want any measures taken ... just let him go." In addition, Wright's mother admitted that, prior to Wright's cardiac arrest, she did not tell "any of the health care providers that if [Wright] had a sudden and unexpected heart attack, that he wanted the doctors to just let him go."

        92

        Against the background set forth above, the following portions of the record present the evidence most favorable to the plaintiffs.[12] In her affidavit Wright's mother states that it was Wright's understanding, as well as hers, that the Living Will was effective immediately "and in the event that it came [Wright's] time to go, [Wright] did not want any life-sustaining procedures performed on him." He "intended and understood the Living Will to include refusal to be resuscitated." After executing the Living Will, "on each occasion when [Wright] was to be admitted," including the admission on July 18, 1994, "Dr. Patricia Barditch-Cro[vo] asked [Wright] whether he had changed his mind regarding the Living Will, and [Wright] said he had not." In the six months preceding Wright's death, he was seen in the Johns Hopkins emergency room on at least two occasions. "On both [of] these occasions, [Wright] told the emergency room physician that he did not want to be resuscitated." During Wright's admission to Johns Hopkins immediately preceding the admission of July 18, 1994, Wright's mother "did see the Living Will in [Wright's] chart." On July 20, 1994, after the resuscitation, a nurse who was being consoled by Wright's home health care nurse said "that she had not looked in [Wright's] chart before she called the code." On July 22, 1994, while Wright's mother was visiting with him, "a nurse or nursing assistant told [her] that she didn't know how this could have happened when the living will was [177] in [Wright's] medical records." Wright "made it clear to everyone, friends, family and his health care providers, that he did not want any life-sustaining procedures, including resuscitation, because he wanted to die with dignity."

        93

        In her deposition Wright's mother testified that upon arriving at the MICU the physician in charge of the MICU, who "was not a part of the [resuscitation] team," approached her and apologized on behalf of those who had resuscitated Wright. The MICU chief said that "[h]e knew that [Wright] had the DNR. He knew [Wright] had a living will on his chart and should not have been resuscitated."

        94

        The evidence relied on by the plaintiffs blurs the distinction between Wright's Living Will and a possible DNR order. The latter is an order that "speaks to a form of treatment, CPR, that would be applied, if at all, only after an unpredictable and dramatic change in the patient's condition—that is, if the patient were to suffer a cardiac arrest." 79 Op. Att'y Gen. at 137.[13] The only evidence bearing on the standard of care for the entry of a DNR order is found in the Johns Hopkins Medical Staff Manual which sets forth that institution's established policy "to guide the physician when writing DNR orders."

        95

        "The Attending Physician has the responsibility to discuss with the patient ... the withholding of resuscitation when death is imminent and inevitable from an irreversible condition or there exists a high probability that this will occur during the course of the hospitalization, or may occur during an invasive diagnostic or therapeutic procedure."

        96

        Thus, the relevant period for the writing of any DNR order would have been while Wright was in Osler 8 with Dr. Miller as his attending physician. In his affidavit Dr. Miller states that "Wright's cardiac arrest was not an expected result of his underlying disease process, but rather an acute, but reversible, reaction to his blood transfusion." That opinion is uncontradicted. Indeed it was anticipated that Wright would be discharged to home following his blood transfusion, and he had telephoned his mother shortly prior to the transfusion to arrange for transportation. Further, the evidence most favorable to the plaintiffs is the opinion of the plaintiffs' medical expert that, as of July 18-20, 1994, Wright's life expectancy was less than six months. That is not "imminent" death in the context of the standard of care described above.

        97

        Thus, any vitality of plaintiffs' negligence claim turns on the legal sufficiency of the use of "resuscitation" in the oral statements by Wright to an unidentified emergency room physician on each of two admissions there prior to July 18, 1994, and in the oral statement by the physician in charge of the MICU. We hold for policy reasons that this evidence is not legally sufficient. Here, none of the physicians involved in the statements was Wright's attending physician during the relevant period. We will not recognize these uses of "resuscitation" by or in the presence of physicians other than the attending physician to be the functional equivalent of the entry of a DNR order in Wright's chart at Osler 8. Simply put, if such a conclusory and unexplained oral statement can be the basis for finding that there was in fact a DNR order, so that an action for violating the order would lie, then an oral statement made without any explanation of its basis by a physician who was not attending prior to cardiac arrest would support withholding resuscitation. Life or death decisions are not to be made so casually.[14]

        98

        The Attorney General has recognized that a non-statutory, oral advance directive by a patient to an attending physician may be effective, under limited circumstances, to [178] permit the entry of a DNR order. 79 Op. Att'y Gen. at 154. That opinion addressed the "difficult issue [of] the effect to be accorded a formerly competent patient's decision to decline CPR if the patient made the decision in a discussion with a physician that was unwitnessed and therefore is not an oral advance directive under the Act." Id. Competing considerations were recognized. It "would not be faithful to the General Assembly's purpose [to accord] the same legal effect to an unwitnessed statement as to an oral advance directive. To do so would make a nullity out of the witness requirement" which was intended to be "a measure of protection for the patient." Id. Yet, "the Act surely has not displaced entirely the legal right of patients simply to tell their physicians what they want and don't want, with informed consent." Effect must be given to the cumulative rights provision, § 5-616(a).

        99

        The principle applied by the Attorney General was that a person has a right to decide about future life-sustaining procedures. 79 Op. Att'y Gen. at 154 (citing 73 Op. Att'y Gen. at 185). In the cited opinion that principle undergirded the conclusion that a patient could "make a choice about life-sustaining procedures, including artificially administered sustenance, should that situation arise," without executing a formal document. 73 Op. Att'y Gen. at 185. Instead, "a person who is competent to make medical decisions at the time of decision about insertion of a feeding tube can decide whether to allow that procedure or not by simply telling the attending physician, who should document the decision in the patient's record." Id. Thus, in the 1994 opinion the Attorney General concluded:

        100

        "A competent patient's decision to forgo CPR may be given direct effect by entry of a DNR order, even if the patient is no longer competent and no health care [agent] or surrogate is available ... if the patient's decision, albeit not an oral advance directive, is the product of informed consent about contingencies in the discrete context of a discussion of `a future course of treatment.'"

        101

        79 Op. Att'y Gen. at 154 (quoting 73 Op. Att'y Gen. at 185). The opinion, however, expressed the following caveat:

        102

        "But if the patient merely tells the physician of a generalized and open-ended desire to forgo life-sustaining procedures, including CPR, in the indefinite future, the decision may be given effect only as evidence that might allow some other decision-maker—a health care agent, surrogate, or guardian with court approval—to authorize a DNR order. Physicians need to be aware of the importance of having a witness to this more generalized type of patient decision in order to create a fully effective oral advance directive."

        103

        Id. at 154.

        104

        We agree with the analysis by the Attorney General. In the instant matter the evidence supporting the entry of a DNR order does not rise above evidence of a "generalized and open-ended desire" on Wright's part.

        105

        The foregoing conclusion answers a number of the plaintiffs' arguments. As we previously noted in Part V.A, supra, the parents contend that the extubation of Wright evidences that the defendants could have applied the Living Will without a certification that the conditions therein set forth had been met. As explained above, Wright's mother, as his agent for health care, could, and did, give effect to her son's generalized intent, but the defendants could not give it effect, absent informed consent given by Wright in the context of an explanation of the contingencies of future treatment.

        106

        Plaintiffs additionally submit that the defendants breached a duty to Wright to record his expressed desires in his record. This submission merely recycles the argument that we have previously rejected. From the standpoint of our assumed legal duty on the defendants to honor a DNR order, a "generalized and open-ended desire" need not be recorded because it is not a DNR order.

        107

        Essentially the plaintiffs urge this Court to recognize a common law action for having administered CPR that would be viewed as unauthorized under the evidence most favorable to the plaintiffs in this case. In Mack, [179] this Court foreshadowed the need for comprehensive legislation related to a patient's right to refuse medical treatment by declaring that changing the common law on matters related to this right was a "quintessentially legislative" function. 329 Md. at 222, 618 A.2d at 761. The Act, enacted several months after the Court's decision in Mack, was the product of intense intellectual debate between judges, attorneys, academicians, ethicists, and physicians and drew on two competing bills submitted to the General Assembly. For a detailed account of the evolution of the Act, see D.E. Hoffmann, The Maryland Health Care Decisions Act: Achieving the Right Balance?, 53 Md. L.Rev. 1064 (1994), and J.C. Byrnes, The Health Care Decisions Act of 1993, 23 U. Balt. L.Rev. 1 (1993). We shall not use our power to declare the common law to move the line between an authorized and an unauthorized DNR further from the statutory, oral advance directive than the type of DNR order that we have recognized above as authorized. The legitimate public policy concern for protecting the patient does not permit embracing within the authorized DNR order one entered on the basis of a generalized desire that has not been translated by informed consent into a discrete plan for future treatment contingencies.

        108

        For all of the foregoing reasons, under the circumstances here, the CPR was authorized by the treatment without consent provision of the Act, § 5-607.[15]

        109
        VI. The Other Claims
        110

        The parents alleged in their complaint that the defendants "failed to obtain [Wright's parents'] informed consent in that they negligently failed to disclose to [Wright's parents] all material information, including, but not limited to, the nature of the proposed treatment [i.e., CPR]; the probability of success of the contemplated resuscitation and its alternatives; the risks and unfortunate consequences associated with such a treatment; and were otherwise negligent in failing to provide them with proper informed consent." [16] Section 5-607, under which the CPR was authorized, accords with the common law doctrine of informed consent, which is suspended in an emergency situation. See Sard v. Hardy, 281 Md. at 438-39, 379 A.2d at 1019 ("The doctrine of informed consent ... follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.").

        111

        Plaintiffs' wrongful death claim is without merit. The action lies "against a person whose wrongful act causes the death of another." CJ § 3-902(a). Here the alleged wrongful act, CPR, caused Wright to live.

        112

        It appears that in this appeal Wright's parents have abandoned their battery claim. While they preserved the claim in their cross-petition for certiorari, they have made no argument in support of the claim in their brief to this Court. Further, in their reply brief Wright's parents have failed to respond to the defendants' assertion that Wright's parents "have abandoned any claim that the Circuit Court erred in its dismissal of the Wrights' battery claim."

        113

        [180] JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY THE PETITIONERS AND CROSS-RESPONDENTS, JEANETTE WRIGHT et al.

        114

        [1] Unless otherwise noted, all statutory references are to the Health-General Article.

        115

        [2] Section 5-601(m) of the Act defines a "life-sustaining procedure" as follows:

        116

        "(1) `Life-sustaining procedure' means any medical procedure, treatment, or intervention that:

        "(i) Utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function; and

        "(ii) Is of such a nature as to afford a patient no reasonable expectation of recovery from a terminal condition, persistent vegetative state, or end-stage condition.

        "(2) `Life-sustaining procedure' includes artificially administered hydration and nutrition, and cardiopulmonary resuscitation."

        117

        [3] Section 5-601(q) defines a "terminal condition" as

        118

        "an incurable condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life-sustaining procedures, there can be no recovery."

        119

        [4] Section 5-601(i) defines an "end-stage condition" as

        120

        "an advanced, progressive, irreversible condition caused by injury, disease, or illness:

        "(1) That has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and

        "(2) For which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective."

        121

        [5] Section 5-601(o) defines a "persistent vegetative" state as

        122

        "a condition caused by injury, disease, or illness:

        "(1) In which a patient has suffered a loss of consciousness, exhibiting no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflex activity of muscles and nerves for low level conditioned response; and

        "(2) From which, after the passage of a medically appropriate period of time, it can be determined, to a reasonable degree of medical certainty, that there can be no recovery."

        123

        [6] But, see generally § 5-611(c); 79 Op. Att'y Gen. 137, 151 (1994); J.C. Byrnes, The Health Care Decisions Act of 1993, 23 U. Balt. L.Rev. 1, 39 n.107 (1993); D.E. Hoffmann, The Maryland Health Care Decisions Act: Achieving the Right Balance?, 53 Md. L.Rev. 1064, 1110 & n.182 (1994).

        124

        [7] "DNR/DNI" means "do not resuscitate/do not intubate."

        125

        [8] Other entries in the hospital record are generally to the same effect.

        126

        [9] Specifically, the Living Will provided as follows:

        127

        "DECLARATION OF LIFE-SUSTAINING PROCEDURES (LIVING WILL)

        "On this — day of 2-22, 1993, I, Robert L. Wright, Jr., being of sound mind, willfully and voluntarily direct that my dying shall not be artificially prolonged under the circumstances set forth in this Declaration:

        "If at any time I should have any incurable injury, disease or illness certified to be a terminal condition by two (2) physicians who have personally examined me, one (1) of whom shall be my attending physician, and the physicians have determined that my death is imminent and will occur whether or not life-sustaining procedures are utilized and where the application of such procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, and the performance of any medical procedure that is necessary to provide comfort, care or alleviate pain. In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this Declaration shall be honored by my family and physician(s) as the final expression of my right to control my medical care and treatment.

        "I (do not) [draw a line through word(s) that do(es) not apply] want food and water or other nutrition and hydration administered to me by tube or other artificial means in the event that I am in a terminal condition.

        "I am legally competent to make this Declaration, and I understand its full impact.

        /s/ Robert L. Wright, Jr. (Signature of Declarant)"

        128

        [10] The remaining page or pages containing Section 4 are missing from the exhibit.

        129

        [11] In the captioning of this opinion the parties' names have been reversed to reflect as the petitioners the parties who lost in the circuit court.

        130

        [12] The defendants object to portions of the "evidence" on which plaintiffs rely. These objections are based, inter alia, on the Dead Man's Statute, Md.Code (1974, 1998 Repl.Vol.), CJ § 9-116, and on Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984) and other cases holding that summary judgment against a party is not defeated by a conflict between that party's deposition testimony and the party's later affidavit opposing summary judgment. By presenting the portions of the record relied on by the plaintiffs, we intimate no opinion on the merits of the defendants' objections.

        131

        [13] The Attorney General defines cardiac arrest as "`the sudden unexpected cessation of heartbeat and blood pressure. It leads to loss of consciousness within seconds, irreversible brain damage in as little as 3 minutes, and death within 4 to 15 minutes.'" 79 Op. Att'y Gen. at 140 (quoting Office of Technology Assessment, U.S. Congress, Life-Sustaining Technologies and the Elderly 168 (1987)).

        132

        [14] There is no contention by the plaintiffs that the circuit court should have deferred ruling on the motion for summary judgment pending a deposition by the plaintiffs of the MICU chief.

        133

        [15] Section 5-607 reads:

        134

        "A health care provider may treat a patient who is incapable of making an informed decision, without consent, if:

        "(1) The treatment is of an emergency medical nature;

        "(2) A person who is authorized to give the consent is not available immediately; and

        "(3) The attending physician determines that:

        "(i) There is a substantial risk of death or immediate and serious harm to the patient; and

        "(ii) With a reasonable degree of medical certainty, the life or health of the patient would be affected adversely by delaying treatment to obtain consent."

        135

        [16] Wright's parents' cause of action for lack of informed consent is properly a cause of action for negligence. See Faya v. Almaraz, 329 Md. 435, 450 n. 6, 620 A.2d 327, 334 n. 6 (1993) ("The cause of action for lack of informed consent is one in tort for negligence, as opposed to battery or assault."); Sard v. Hardy, 281 Md. at 440 n. 4, 379 A.2d at 1020 n. 4 ("We note in passing our approval of the prevailing view that a cause of action under the informed consent doctrine is properly cast as a tort action for negligence, as opposed to battery or assault.").

      • 4.1.2 Ramsey v. Coatney

        1
        Boyd E. RAMSEY, Administrator of the Estate of Ethel Helen Reha Ramsey, and on behalf of Boyd E. Ramsey, Individually, Plaintiff-Appellant,
        v.
        Richard COATNEY, Elaine K. Berry, and Cass County Memorial Hospital, Defendants-Appellees.
        2

        Court of Appeals of Iowa
        No. 01-1085

        3
        Aug. 14, 2002
        4

        Plaintiff, individually and as administrator of the estate of his mother, appeals from the district court ruling granting summary judgment in favor of defendants in the plaintiff's medical negligence action arising from the death of his mother.

        5

        REVERSED AND REMANDED.

        6

        Gregory W. Landry and Gary G. Mattson of LaMarca & Landry, P.C., West Des Moines, for appellant.

        7

        Kermit B. Anderson of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees.

        8

        Considered by MAHAN, P.J., and MILLER and HECHT, JJ.

        9
        MILLER, J.
        10

        Plaintiff Boyd E. Ramsey, individually and as administrator of the estate of his mother Ethel Helen Reha Ramsey, appeals from the district court ruling granting summary judgment in favor of defendants, Drs. Richard Coatney and Elaine K. Berry, in the plaintiff's medical negligence action arising from the death of Ethel Ramsey. The plaintiff contends the court erred in granting summary judgment because genuine issues of material fact exist as to whether Ethel Ramsey was in a terminal condition when life-sustaining procedures were withdrawn or withheld. We reverse and remand.

        11
        I. BACKGROUND FACTS AND PROCEEDINGS
        12

        On July 3, 2000 Ethel Ramsey (Ethel) was admitted to the Cass County Memorial Hospital for treatment of pneumonia. Her treating physician was Dr. Richard Coatney, D.O. At the time Ethel was admitted she was ninety-two years old and had a long history of physical impairments and medical conditions. She had been the victim of a stroke leaving her with slight paralysis on one side (hemiparesis). She also suffered from progressive dementia and her swallowing mechanism was impaired. For the last year Ethel had only communicated by opening her eyes periodically and had no other self-movement beyond that. She could not feed herself and had to be fed by her son Boyd Ramsey (Boyd). The records of the nursing home where Ethel was living indicate she was refusing to eat until Boyd began feeding her. Due to her impaired swallowing ability Ethel often aspirated food causing recurrent aspiration pneumonias which had intensified in the last few years requiring her to be hospitalized for treatment because the pneumonia no longer responded to oral outpatient antibiotics.

        13

        Ethel had four adult children, the plaintiff Boyd Ramsey, Bill Ramsey, Joan Donnelly, and Carol Schoop. At the time of her admission to the hospital on July 3, 2000 Ethel had not prepared a declaration concerning life-sustaining procedures. On August 15, 2000 Dr. Coatney's progress notes on Ethel indicated that her lungs were "clear at this time." Boyd wanted intravenous (IV) hydrations continued and tubal feeding commenced at that time but Ethel's other three children wanted the IV stopped and no feeding tube to be introduced. Coatney's notes indicate he discontinued IV hydration on August 15, 2000 "at the request of Bill and his two sisters." Bill, Joan, and Carol all signed notarized statements on August 18, 2000, which were sent to the hospital and Coatney by their attorney. The letters stated, "We, as the majority of adult children of Ethel H. Ramsey, agree to the withholding of life-sustaining procedures, i.e., intravenous feedings or tube feedings, after consultation with the attending physician, Richard F. Coatney, D.O."

        14

        Dr. Coatney's progress notes dated August 22, 2000, indicate that faced with the continued disagreement on treatment between Bill, Carol, and Joan on one side and Boyd on the other Dr. Coatney had sought a second opinion from Dr. Elaine K. Berry, M.D. In these notes Coatney also discusses a phone call he received from Boyd's attorney who read him Iowa Code section 144A.7 (1999).1 Dr. Coatney's notes of August 22, seven days after IV hydration had been discontinued, include the following: "Who was the other doctor who stated she was terminal? I did not state Ethel was terminal. I did not state it. . . . This patient was never declared terminal by me."

        15

        Dr. Berry examined Ethel on August 21, 2000, at which point Ethel had been without food and hydration for six days. Dr. Berry found in her written report that Ethel's progress was "poor and guarded". In Dr. Berry's opinion it was "ethically appropriate that active nutritional supplementation, and recurrent treatment with antibiotics, be discontinued."

        16

        Ethel died intestate on August 26, 2000, eleven days after IV hydration was discontinued. Boyd was appointed the administrator of Ethel's estate. On January 5, 2001 Boyd filed this medical negligence, wrongful death action against Drs. Coatney and Berry.2 The parties filed cross motions for summary judgment and a hearing was held on the motions. An affidavit from Dr. Coatney was attached to the defendants' motion for summary judgment. In it he stated, "Prior to her death, I believed Ethel Ramsey's condition was terminal." The district court issued an order filed June 21, 2001, granting the defendants' motion for summary judgment and denying Boyd's motion for summary judgment.

        17

        Boyd appeals, contending there are genuine issues of material fact as to whether Ethel was in a "terminal condition" under Iowa Code chapter 144A at the time life-sustaining procedures were withdrawn or withheld by the defendants.

        18
        II. STANDARD OF REVIEW
        19

        We review a district court's ruling on a motion for summary judgment for correction of errors at law. Iowa R. App. P. 6.4; Wright v. Am. Cyanamid Co., 599 N.W.2d 668, 670 (Iowa 1999).

        20

        A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A factual issue is "material" only if "the dispute is over facts that might affect the outcome of the suit." The burden is on the party moving for summary judgment to prove the facts are undisputed. . . .

        In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record. An inference is legitimate if it is "rational, reasonable, and otherwise permissible under the governing substantive law." On the other hand, an inference is not legitimate if it is "based upon speculation or conjecture." If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists.

        21

        Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001) (citations omitted).

        22
        III. MERITS
        23

        Iowa Code chapter 144A (1999), titled "Life-Sustaining Procedures Act," sets forth rules to be followed by healthcare providers concerning life-sustaining procedures when treating a patient both when the patient has, and when the patient does not have, a declaration relating to life-sustaining procedures. Ethel did not have such a declaration and therefore section 144A.7 governs here. Section 144A.7 provides in relevant part:

        24

        1. Life-sustaining procedures may be withheld or withdrawn from a patient who is in a terminal condition and who is comatose, incompetent, or otherwise physically or mentally incapable of communication and has not made a declaration in accordance with this chapter if there is consultation and written agreement for the withholding or the withdrawal of life- sustaining procedures between the attending physician and any of the following individuals...3

        ...

        d. An adult child of the patient or, if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation.

        25

        Iowa Code § 144A.7(1)(d) (1999) (emphasis added). "Terminal condition" is defined in this chapter as,

        26

        an incurable or irreversible condition that, without the administration of life-sustaining procedures, will, in the opinion of the attending physician, result in death within a relatively short period of time or a state of permanent unconsciousness from which, to a reasonable degree of medical certainty, there can be no recovery. Iowa Code § 144A.2(8) (emphasis added).

        27

        Boyd contends on appeal that the contradiction between the defendants' affidavits in support of their motion for summary judgment and their statements in the medical records creates a genuine issue of material fact. More specifically, Boyd argues Dr. Coatney's progress notes on August 22, 2000, stating Ethel was "never declared terminal by me" and that he "did not state Ethel was terminal" are in direct contradiction to his affidavit stating that prior to Ethel's death he believed her condition was terminal.

        28

        Whether as of August 15 when life-sustaining procedures were withheld or withdrawn the defendants held the required opinion is material to the outcome of this case. For two somewhat related but nevertheless separate and independent reasons we conclude the summary judgment record does not establish as undisputed fact that the defendants held such an opinion as of that date.

        29

        First, in relevant part Dr. Coatney's affidavit asserts only that "prior to her death" (which occurred August 26) he believed her condition was terminal. Notably, it does not assert he held such a belief as of August 15. Dr. Berry's affidavit, although worded somewhat differently, also speaks of an opinion formed well after August 15, apparently on August 21 when Dr. Berry examined Ethel. The affidavits thus cannot be seen as establishing as uncontested fact that the defendants held the required opinion as of August 15. Second, with respect to Dr. Coatney only, it appears from his August 22 progress notes that when someone, apparently Boyd, asked what second doctor had stated Ethel was terminal Dr. Coatney adamantly insisted that he had "not state " she was terminal, and that he had "never declared" her to be terminal. These statements are at least arguably inconsistent with him having held an opinion as of August 15 that Ethel was then in a terminal condition.

        30

        Viewing the facts in a light most favorable to the party resisting the motion for summary judgment, here Boyd Ramsey, and considering on his behalf every legitimate inference that can be reasonably deduced from the record, we conclude the defendants failed to meet their burden to prove there is no genuine issue of material fact. Accordingly, the district court's ruling granting summary judgment to the defendants is reversed and the case is remanded for further proceedings.4

        31

        REVERSED AND REMANDED.

        32

        [1] Although Dr. Coatney's notes state he was read Iowa Code section "144-7" we assume it was actually section 144A.7dealing with life sustaining procedures in the absence of a declaration. Section 144.7 was repealed by 1988 Iowa Acts, ch. 1158, § 102.

        33

        [2] Boyd also sued the Cass County Memorial Hospital, but dismissed his claim against that defendant on April 13, 2001.

        34

        [3] It appears undisputed that Ethel met the second of the two criteria set forth in the statute in that she was incompetent or otherwise incapable of communication. It is the "terminal condition" requirement that is the focus of our attention.

        35

        [4] Both in the trial court and on appeal the parties have not drawn or attempted to draw any distinctions between the acts or omissions of Dr. Coatney and those of Dr. Berry, nor have they in any manner suggested that their respective relationships to the facts and the plaintiff's claim differ in any way. Nor did the trial court in ruling on the summary judgment motion draw any distinctions between the two defendants. Although we have followed the pattern established by the parties and the trial court and dealt with the issue as presented, by doing so we do not intend to suggest that we do or do not view the relationships of the two defendants to the facts and claims as being indistinguishable.

    • 4.2 2. Lack of Capacity

      • 4.2.1 Ficke v. Evangelical Health Systems

        1
        674 N.E.2d 888 (1996)
        2
        221 Ill.Dec. 95
        3
        Darlene FICKE, Special Administrator of the Estate of Dorothy Ficke, Deceased, and Darlene Ficke, Thomas Ficke, and Michael Ficke, Plaintiffs-Appellants,
        v.
        EVANGELICAL HEALTH SYSTEMS, d/b/a Christ Hospital, and Jose Aruguete, M.D., Defendants-Appellees.
        4
        No. 1-96-0238.
        5

        Appellate Court of Illinois, First District, Sixth Division.

        6
        December 13, 1996.
        7

        [889] Berkson, Gorov & Levin, Ltd., Chicago (Arthur M. Gorov, Norman N. Berkson, of counsel), for Plaintiffs-Appellants.

        8

        Cassiday, Schade & Gloor, Chicago (Brian C. Sundheim, Catherine L. Garvey, Jennifer A. Keller, of counsel), for Defendant-Appellee (Evangelical Health Systems, d/b/a Christ Hospital).

        9

        John V. Smith, II, Donald B. Lenderman of Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers, Anne Scheitlin Johnson, of counsel), for Defendant-Appellee (Dr. Jose Aruguete).

        10
        Justice GREIMAN delivered the opinion of the court:
        11

        This case presents the questions of whether, to what extent and to whom a hospital and physician may be liable for alleged violations of the Illinois Health Care Surrogate Act (the Act) (755 ILCS 40/1 et seq. (West 1992)). The Act authorizes a surrogate to decide, subject to certain conditions, whether to discontinue life-sustaining medical treatment when the patient is found to lack decisional capacity.

        12

        On December 9, 1993, plaintiffs, Darlene, Thomas and Michael Ficke, filed a four-count complaint against Evangelical Health Systems (the Hospital) and Dr. Jose Aruguete (Aruguete), seeking damages for injuries sustained by plaintiffs' decedent, Dorothy Ficke (Ficke). Plaintiffs maintained, in count I of their second amended complaint, that the Hospital was liable to decedent's estate for its failure to comply with certain provisions of the Act. Count III claims that the Hospital is similarly liable to Ms. Ficke's children for such violations. Count IV seeks damages pursuant to the Act for physical and mental injuries incurred by plaintiffs as a result of Aruguete's negligent treatment of Ficke and misapprehension of the Act. Count II of the amended complaint, brought by the estate against Aruguete, was dismissed with leave to refile and is not before this court on appeal.

        13

        In a memorandum opinion and order entered on December 21, 1995, the trial court dismissed with prejudice counts I, III and IV of plaintiffs' second amended complaint. On January 11, 1996, plaintiffs timely filed their notice of appeal from the trial court's order of dismissal. For the reasons that follow, we affirm.

        14

        The following facts are adduced from plaintiffs' second amended complaint. Ficke was admitted to the Hospital, under the care of Dr. Aruguete, on March 8, 1993, with the diagnosis of a CVA (stroke). Ficke was 81 years old with a recent history of diabetes, arthritis, gout, hypertension, congestive heart failure, respiratory disease and depression. A "do not recessitate" (DNR) order was entered in Ficke's chart on March 17, 1993.

        15

        Plaintiffs' complaint alleges that on or shortly after her admission to the Hospital, Ficke lacked decisional capacity and suffered from a "qualifying condition" as to the operation of the Act because she lacked the ability to communicate meaningful thought, was unable to socially interact and lacked awareness of self and her environment. During Ficke's stay at the Hospital, Aruguete continued to prescribe treatment, including surgery, which the Hospital provided. These acts of rendering life-sustaining or life-prolonging intervention were contrary to the plaintiffs' expressed wishes. Moreover, the failure of the Hospital and Aruguete to inform plaintiffs of their rights under the Act, in addition to their own, independent, noncompliance with the Act's terms, violated the Act and caused plaintiffs' injuries.

        16

        As a general principle of Illinois law, competent adults have the right to refuse any type of medical care, including life-sustaining treatment. The right to refuse medical care has been recognized under constitutional right-to-privacy principles and is deeply ingrained in common law principles of individual autonomy, self-determination, and informed consent. See generally Fatum, Kane, & LeBlang, A Review of the Illinois Health Care Surrogate Act, 80 Ill. Bar.J. 124 (1992); see also Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737 (1891) ("No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession [890] and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law").

        17

        Although the right is recognized, implementation of that right, traditionally through judicial intervention, has been cumbersome and often untimely, in many instances resulting in the very manner of death sought to be avoided by patients prior to legal vindication of their right to forgo treatment. See, e.g., In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209, 1217 (1985); Bartling v. Superior Court, 163 Cal.App.3d 186, 190, 209 Cal.Rptr. 220, 221 (1984); John F. Kennedy Memorial Hospital v. Bludworth, 452 So.2d 921, 923 (Fla.1984); Satz v. Perlmutter, 379 So.2d 359 (Fla.1980); Corbett v. D'Alessandro, 487 So.2d 368, 369 (Fla.App.1986); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984); In re Spring, 380 Mass. 629, 631, 405 N.E.2d 115, 117-118 (1980); In re Storar, 52 N.Y.2d 363, 369, 438 N.Y.S.2d 266, 268, 420 N.E.2d 64, 66 (1981); In re Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984).

        18

        In Illinois, legislative response in this area first took the form of the Illinois Living Will Act (Will Act) (755 ILCS 35/1 et seq. (West 1992)). The Will Act recognized that individuals "have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have death delaying procedures withheld or withdrawn in instances of a terminal condition." 755 ILCS 35/1 (West 1992). Under the Will Act, individuals can document their wishes concerning life-sustaining treatment before they develop a terminal condition and lack the capacity to make such a decision. 755 ILCS 35/3 (West 1992). However, living wills soon proved too inflexible to adequately address the needs of individuals wishing to make advance health care decisions. They were applicable only in cases of terminal illness, which requires that death be imminent. Moreover, they would not permit health care providers to withhold or withdraw artificial nutrition or hydration when such action would be the sole cause of death. See 80 Ill.Bar.J. at 125.

        19

        Subsequently, the Illinois legislature passed article IV of the Powers of Attorney for Health Care Law (Powers of Attorney Law) (755 ILCS 45/4-1 (West 1992)), which permits an individual to delegate, "without limitation, all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual and all powers a parent may have to control or consent to health care for a minor child." 755 ILCS 45/4-3 (West 1992). Thus, absent the limitations present in the Will Act, the Powers of Attorney Law provides a more comprehensive and effective means of delegating health-care decisions. Yet, under either statutory scheme, no provision is made for individuals who lack decision-making capacity and who have not executed a living will or a power of attorney for health care.

        20

        Two supreme court decisions addressed this "gap" and found a right to refuse life-sustaining treatment in our state's common law and in the provisions of the Probate Act of 1975 (755 ILCS 5/1-1 et seq., (West 1992)). In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989); In re Estate of Greenspan, 137 Ill.2d 1, 146 Ill.Dec. 860, 558 N.E.2d 1194 (1990). The court held that a surrogate can exercise the right for an individual lacking decisional capacity only if: (1) the individual is terminally ill as defined in section 2(h) of the Will Act; (2) the individual has been diagnosed as irreversibly comatose or in a persistently vegetative state; (3) the individual's attending physician and at least two other consulting physicians have concurred in the diagnosis; (4) the individual's right outweighs any interests of the State; (5) what the individual would have decided is ascertained through clear and convincing evidence; and (6) a court enters an order allowing the surrogate to exercise the individual's right to refuse or terminate treatment. Longeway, 133 Ill.2d at 47-53, 139 Ill.Dec. 780, 549 N.E.2d 292; Greenspan, 137 Ill.2d at 16, 146 Ill.Dec. 860, 558 N.E.2d 1194.

        21

        Thus, while legislative enactments improved and expedited surrogate decision-making where advance directives were executed through either a living will or power of attorney, individuals not "covered" by either statute remained dependent on judicial intervention and its attendant flaws. In response, [891] the Illinois Health Care Surrogate Act was passed in 1991. The Act codifies Illinois' common law and constitutional rights to forego life-sustaining treatment and establishes a private decision-making process allowing a surrogate to be chosen from a hierarchical list of candidates to make life-sustaining treatment decisions for those who lack decisional capacity and have not executed an applicable living will or power of attorney. See In re C.A., 236 Ill.App.3d 594, 622, 177 Ill.Dec. 797, 603 N.E.2d 1171 (1992) (McMorrow, J., dissenting); 80 Ill.Bar.J. at 127.

        22

        The Act applies when the individual lacks decisional capacity, has not executed an advance directive and has a "qualifying condition." "Qualifying condition" is defined as follows:

        23
        "the existence of one or more of the following conditions in a patient certified in writing in the patient's medical record by the attending physician and by at least one other qualified physician:
        24
        (1) `Terminal condition' means an illness or injury for which there is no reasonable prospect of recovery, death is imminent, and the application of life-sustaining treatment would only prolong the dying process.
        25
        (2) `Permanent unconsciousness' means a condition that, to a high degree of medical certainty, (i) will last permanently, without improvement, (ii) in which thought, sensation, purposeful action, social interaction, and awareness of self and environment are absent, and (iii) for which initiating or continuing life-sustaining treatment, in light of the patient's medical condition, provides only minimal medical benefit.
        26
        (3) `Incurable or irreversible condition' means an illness or injury (i) for which there is no reasonable prospect of cure or recovery, (ii) that ultimately will cause the patient's death even if life-sustaining treatment is initiated or continued, (iii) that imposes severe pain or otherwise imposes an inhumane burden on the patient, and (iv) for which initiating or continuing life-sustaining treatment, in light of the patient's medical condition, provides only minimal medical benefit." (Emphasis added.) 755 ILCS 40/10 (West 1992).
        27

        The Act further provides:

        28
        "The determination that a patient has a qualifying condition creates no presumption regarding the application or non-application of life-sustaining treatment. It is only after a determination by the attending physician that the patient has a qualifying condition that the surrogate decision maker may consider whether or not to forgo life-sustaining treatment. In making this decision, the surrogate shall weigh the burdens on the patient of initiating or continuing life-sustaining treatment against the benefits of that treatment." (Emphasis added.) 755 ILCS 40/10 (West 1992).
        29

        It is against this backdrop that we are asked to determine whether, and to what extent, liability predicated on a health care provider or physician's violation of the Act may be imposed.

        30

        Our review of an order of involuntary dismissal is de novo. Dace International, Inc. v. Apple Computer, Inc., 275 Ill. App.3d 234, 211 Ill.Dec. 591, 655 N.E.2d 974 (1995). In reviewing a dismissal pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), we must determine whether the allegations in the complaint, when read in the light that most favors plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Regan v. Ivanelli, 246 Ill.App.3d 798, 187 Ill.Dec. 351, 617 N.E.2d 808 (1993).

        31
        I. Plaintiffs' claims against the Hospital
        32

        Count I of plaintiffs' second amended complaint is a survival action brought on behalf of Ficke's estate which alleges that the Hospital was negligent in (1) failing to obtain certification of Ficke's "qualifying condition," (2) providing treatment to Ficke contrary to the wishes of her children (plaintiffs), (3) failing to inquire into the availability of a surrogate, (4) failing to advise plaintiffs of their rights under the Act, and (5) failing to effectuate Ficke's transfer to another hospital. Count III of the complaint makes similar allegations and is brought by plaintiffs in their individual capacities for the anguish [892] they each suffered as witnesses to their mother's unnecessary suffering.

        33

        To state a cause of action for negligence, a complaint must allege facts sufficient to show the existence of a duty, a breach of that duty, and an injury to the plaintiff that was proximately caused by that breach. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). The Hospital moved to dismiss counts I and III, maintaining that plaintiffs failed to state a cause of action because the Act does not impose a duty on hospitals prior to the finding and certification by the attending physician that a patient lacks decisional capacity and has a qualifying condition.

        34

        The question before us is largely one of statutory interpretation. The fundamental canon of statutory construction is to ascertain and give effect to the intention of the legislature. Varelis v. Northwestern Memorial Hospital, 167 Ill.2d 449, 454, 212 Ill.Dec. 652, 657 N.E.2d 997 (1995). Courts will look first to the words of the statute (Metropolitan Life Insurance Co. v. Washburn, 112 Ill.2d 486, 492, 98 Ill.Dec. 50, 493 N.E.2d 1071 (1986)), for the language used by the legislature is the best indication of legislative intent. Kirwan v. Welch, 133 Ill.2d 163, 165, 139 Ill.Dec. 836, 549 N.E.2d 348 (1989). When such language is clear, no resort to other tools of interpretation is necessary. Henry v. St. John's Hospital, 138 Ill.2d 533, 541, 150 Ill.Dec. 523, 563 N.E.2d 410 (1990).

        35

        Section 25 of the Act requires the health care provider to "make a reasonable inquiry as to the availability of possible surrogates listed in items (1) through (4) of this subsection." 755 ILCS 40/25(a) (West 1992). However, this duty arises only when "a patient has a qualifying condition and lacks decisional capacity." 755 ILCS 40/25(a) (West 1992). The Act provides that the "determination that an adult patient lacks decisional capacity shall be made by the attending physician to a reasonable degree of medical certainty." (Emphasis added.) 755 ILCS 40/20(c) (West 1992). Further, "[t]he existence of a qualifying condition shall be documented in writing in the patient's medical record by the attending physician and shall include its cause and nature, if known." 755 ILCS 40/20(e) (West 1992). The Act clearly, and in mandatory terms, obligates the attending physician to medically diagnose both lack of decisional capacity and the existence of a qualifying condition, including its cause. We find this entirely appropriate and almost inescapable since it is the physician's province to treat and diagnose his or her patients. This is particularly true when the determination involves a potential life or death decision.

        36

        Accordingly, it is for the attending physician, not the hospital or its staff, to determine whether the Act applies to a particular patient. Absent the attending physician's determinations that a patient lacks decisional capacity and suffers from one of three qualifying conditions, the patient is "presumed to have decisional capacity in the absence of actual notice to the contrary without regard to advanced age." (Emphasis added.) 755 ILCS 40/20(c) (West 1992); In re Estate of Austwick, 275 Ill.App.3d 665, 668, 212 Ill. Dec. 176, 656 N.E.2d 773 (1995). Thus, contrary to plaintiffs' argument, shared by the dissent, constructive "notice" or what the Hospital perhaps should have known is insufficient to trigger the Hospital's duties under the Act.

        37

        The Act does not, as the dissent observes, require hospitals to make "some effort to initiate the process of surrogate decision making." (Op. at 101 of 221 Ill.Dec. at 894 of 674 N.E.2d). Conversely, initiation or identification of the process of surrogate decision making is the responsibility of the patient's attending physician. The legislature is quite clear on this point, and we find such delineation necessary to avoid potential conflicts between physicians and other health care providers that might serve to frustrate or prolong what was intended to be a swift, doctor-patient diagnosis.

        38

        Because there is no duty on the part of the hospital to inquire into the availability of a surrogate until a finding has been made by the attending physician that the patient lacks decisional capacity and has a qualifying condition,[1] the trial court was correct to dismiss [893] the claims against the Hospital, brought by both the estate and the plaintiffs individually.

        39
        II. Plaintiffs' claims against Dr. Aruguete
        40

        Count IV of plaintiffs' amended complaint alleges that plaintiffs, as witnesses to Ficke's "continued pain and suffering," were, by virtue of Aruguete's negligent conduct, "caused to and did suffer grievous and painful injury, physical and mental, and do and will, in the future, continue to so suffer." Initially, we observe that the death of a parent is indeed an event occasioned by the continued suffering or grieving of the decedent's family. However, it is another matter whether the Act authorizes a cause of action for such injury.

        41

        The Act does not contain an express right allowing family members of patients to assert a cause of action for violation of its terms. However, a private right of action may be implied if the plaintiff is a member of the class for whose benefit the Act was enacted, the cause of action is consistent with the underlying purpose of the Act, the plaintiff's injury is one the Act was designed to prevent, and a cause of action is necessary to provide an adequate remedy for violations of the Act. Corgan v. Muehling, 143 Ill.2d 296, 312-13, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991); Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill.2d 379, 391, 59 Ill.Dec. 905, 432 N.E.2d 849 (1982).

        42

        Although we believe that a patient's estate has a private right of action under the Act, the same cannot be said for a patient's family members or loved ones. Although plaintiffs are correct that the Act was intended to aid both the incompetent patient and other "involved parties" (755 ILCS 40/5(a) (West 1992)), a cause of action for such "involved parties" was not similarly contemplated.

        43

        In the present case, allowing plaintiffs a cause of action under the Act is not "necessary to provide an adequate remedy for violations of the Act." Corgan, 143 Ill.2d at 312-13, 158 Ill.Dec. 489, 574 N.E.2d 602. This can be accomplished where a patient or a patient's estate brings a direct action against a physician for violations under the Act. Moreover, extending a cause of action to witnesses of a patient's suffering raises serious practical concerns, including when and for whom does one "draw the line"? That is, who is able to maintain an action for damages? Immediate family members, individuals with five or more visits to the patient's "death bed," or only those friends or relatives who actually cared about the decedent? At best, this would prove to be an inexact process and one that conflicts with the traditional rule of limiting claims in the medical arena to the "patient-hospital or patient-doctor relationship." Kirk, 117 Ill.2d at 528, 111 Ill.Dec. 944, 513 N.E.2d 387. Accordingly, we affirm the trial court's dismissal of count IV.

        44

        For the reasons set forth above, we affirm the trial court's order of dismissal.

        45

        Affirmed.

        46

        GALLAGHER, J., concurs.[2]

        47

        CERDA, J., concurs in part and dissents in part.

        48
        Justice CERDA, concurring in part and dissenting in part:
        49

        I concur with the majority's affirming of the dismissal of counts III and IV, but I [894] dissent on the affirming of the dismissal of count I against Christ Hospital.

        50

        A private right of action can be implied under a statute if (1) plaintiff is a member of the class for whose benefit the statute was enacted; (2) it is consistent with the underlying purpose of the statute; (3) plaintiff's injury is one the statute was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the statute. Corgan v. Muehling, 143 Ill.2d 296, 312-13, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991). When a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil liability even if that remedy is not mentioned in the statute. Corgan, 143 Ill.2d at 313, 158 Ill.Dec. 489, 574 N.E.2d 602, citing Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill.2d 152, 155, 128 N.E.2d 691 (1955). It is not necessary to show a specific legislative intent to create a private right of action. Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill.2d 379, 386, 59 Ill.Dec. 905, 432 N.E.2d 849 (1982). If there is no indication that the remedies available are only those expressed in the statute, then where it is consistent with the statute's underlying purpose, a private right of action can be implied. Sawyer, 89 Ill.2d at 386, 59 Ill.Dec. 905, 432 N.E.2d 849.

        51

        The public policy underlying certain statutes demands implication of a private remedy to compensate an aggrieved person who belongs to the class of persons whom the statute was designed to protect. Sawyer, 89 Ill.2d at 386-87, 59 Ill.Dec. 905, 432 N.E.2d 849. Consideration of the underlying policy of the statute and the overriding purpose is important in determining whether a private right of action exists. Sawyer, 89 Ill.2d at 387, 59 Ill.Dec. 905, 432 N.E.2d 849. Illinois courts have continually demonstrated a willingness to imply a private remedy where there exists a clear need to effectuate the purpose of a statute. Sawyer, 89 Ill.2d at 389, 59 Ill.Dec. 905, 432 N.E.2d 849.

        52

        I conclude that there is a viable cause of action for a patient who lacks decisional capacity and who has a qualifying condition when health care providers did not comply with the Act's requirements. Dorothy Ficke was a member of the class for whose benefit the statute was enacted. A private cause of action is consistent with the underlying purpose of the statute, the injury to Dorothy Ficke is one the statute was designed to prevent, and a private cause of action is necessary to provide an adequate remedy for violations of the statute.

        53

        Count I against the hospital alleged that Dorothy Ficke lacked decisional capacity and suffered from a qualifying condition within the meaning of the Act in that she was "lacking in communication of meaningful thought, social interactions and/or awareness of self and her environment." For such a patient, the health care provider, which is defined as including not only physicians but nurses and hospitals (755 ILCS Ann. 40/10 (West Supp.1996)), must make a reasonable inquiry as to the availability and authority of a health care agent or, if unavailable, the availability of possible surrogate decision makers. 755 ILCS Ann. 40/25(a) (West 1992).

        54

        The hospital argues that this duty of health care providers is not triggered before the existence of the qualifying condition and the lack of decisional capacity is certified in writing in the patient's medical record by the attending physician and by at least one other qualified physician. While it is only after these written certifications are made that a surrogate decision maker may consider whether to forgo life-sustaining treatment (755 ILCS Ann. 40/10 (West Supp.1996)), the hospital need not and should not wait to make the reasonable inquiries until the written certifications are made when the hospital knows or should know that the patient in its care lacks decisional capacity and probably has one of the three qualifying conditions.

        55

        Although the attending physician is in charge of a patient's treatment, the hospital has sufficient knowledge of the condition of its patients to determine whether it is probable that a surrogate decision maker is needed. Nurses monitor the patient's condition, and physicians and nurses make notes in the patient's medical record. Hospitals should facilitate the process of surrogate decision making and should not be allowed to sit by and disregard the rights of a patient. The [895] Act requires hospitals to make some effort to initiate the process of surrogate decision making. I would reverse the circuit court order dismissing Count I against Christ Hospital.

        56

        [1] Although no such independent duty exists under this act, the Federal Patient Self-Determination Act, passed in 1990, requires all health care providers receiving Medicaid or Medicare to inform all competent adult patients, even those admitted for minor procedures, about state laws on an individual's decisional rights and advance directives and to record any such directive the patient might have. The federal Act only provides termination of federal revenue as a sanction for its violation. Omnibus Budget Reconciliation Act of 1990, Pub L. No. 101-508, sec. 4206 (West 1992 & Supp.1995). In some instances, private efforts have been made to supplement the physician's role in this process. For example, following the Quinlan case, approximately 85% of New Jersey's acute-care hospitals established prognosis committees that review the attending physician's prognosis when withdrawal of life-support is under consideration. See In re Matter of Jobes, 108 N.J. 394, 421, 529 A.2d 434, 448 (1987).

        57

        [2] Justice Rizzi originally heard oral argument in this case prior to his retirement. Justice Gallagher was substituted and has reviewed the record, briefs and audio recording of the oral argument.

    • 4.3 3. Artificial Nutrition and Hydration

      • 4.3.1 Ross v. Hilltop Rehabilitation Hosp

        1
        676 F.Supp. 1528 (1987)
        2
        Dee ROSS, as personal representative of the estate of Hector O. Rodas, Plaintiff,
        v.
        HILLTOP REHABILITATION HOSPITAL, a Colorado corporation, and William Cobb, M.D., Defendants.
        3
        Civ. A. No. 87 F 187.
        4

        United States District Court, D. Colorado.

        5
        December 31, 1987.
        6

        [1529] Anne C. Stark, Charles M. Johnson, Elaine M. Welle, David H. Miller, Denver, Colo., for plaintiff.

        7

        Laird T. Milburn, Grand Junction, Colo., for defendant Hilltop Rehabilitation Hosp.

        8

        Daniel R. Christopher, Denver, Colo., for defendant William Cobb, M.D.

        9
        MEMORANDUM OPINION AND ORDER
        10
        SHERMAN G. FINESILVER, Chief Judge.
        11

        This case arises from a course of tragic events which took place in Grand Junction, Colorado, between the dates of June 17 and August 22, 1986, when Hector O. Rodas elected to forego life supporting medical treatment. Mr. Rodas died on February 6, 1987. Treatment for Mr. Rodas was extended by defendants Hilltop Rehabilitation Hospital and attending physician William Cobb, M.D. Dee Ross, personal representative of Mr. Rodas, filed this action on February 4, 1987.

        12

        Jurisdiction is based on 28 U.S.C. Sections 1331 and 1343. Plaintiff asserts claims for deprivation of Mr. Rodas' civil rights under 42 U.S.C. Section 1983 and for discrimination because of his handicap under Section 504 of the Rehabilitation Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. Section 794 (the "Rehabilitation Act"). Relief requested [1530] includes damages for deprivation of the right of privacy of Mr. Rodas, failure to cease treatment as requested, and attorney fees. This matter is before us on cross motions for summary judgment. We grant summary judgment in favor of defendants Hilltop and Dr. Cobb, and deny summary judgment in favor of plaintiff Ross.

        13
        I.
        14
        BACKGROUND
        15

        On February 10, 1986, Mr. Rodas, a thirty-four year old Guatemalan male, suffered a cerebral vascular stroke following self inflicted intravenous drug use. This medical condition resulted from an occlusion of his basilar artery which supplies the brain stem. At the time of the traumatic incident, Mr. Rodas was taken to St. Mary's Hospital in Grand Junction by his wife and an emergency rescue squad. He remained in the hospital until March 5, 1986, when he was admitted to Hilltop, a private nonprofit corporate institution.

        16

        As a result of his stroke, Mr. Rodas was left in a locked-in state in which his mind was intact and functioning, but his body was severely physically disabled. He was paralyzed from the neck down and was unable to speak or swallow. With considerable effort he could move his eyes and turn his head. He had little control over the muscles of his body and retained slight movement of his feet, toes, and hands. He needed assistance from other people with his bodily needs and functions. While he was able to sense his bodily functions, he had little control over them.

        17

        He responded to yes-or-no questions by movement of his head and communicated in more detail through the use of a letter board. At the time of his initial hospitalization, he was fitted with a gastrostomy tube placed in an opening into his stomach. The tube was used to supply medication, nutrition, and hydration. During the relevant time, Mr. Rodas was not comatose and was never on a respirator.

        18

        On June 17, 1986, Mr. Rodas communicated to a Hilltop aide, by way of the letter board, that he no longer desired to have the gastrostomy tube in place and desired to have medication, nutrition, and hydration through the tube discontinued. The message was passed on to Dr. Cobb and Hilltop administrators, who immediately contacted the attorney who had been representing Mr. Rodas. Dr. Cobb was concerned about the mental ability and capacity of Mr. Rodas to make a decision as to refusal of fluids. As a result, Hilltop and Dr. Cobb filed a probate action in the state district court.

        19
        II.
        20
        LEGAL, MEDICAL, AND ETHICAL QUESTIONS
        21

        In her motion for partial summary judgment, plaintiff contends that defendants deprived Mr. Rodas of his constitutional rights and violated Section 1983 and Section 504 of the Rehabilitation Act. Plaintiff argues these violations occurred due to defendants' medical treatment of Mr. Rodas against his will and without appropriate court authorization during the period from June 17, 1986 until August 22, 1986. Plaintiff asserts this case involves the "relatively straightforward legal question: Without court authorization, may a hospital or treating physician unilaterally override the medical treatment decisions made by a competent and informed patient?" (Plaintiff's memorandum in support of motion, p. 1.)

        22

        We disagree. The legal issues involved in this case are far more complicated than posited by plaintiff. The causes of action before us involve claims under Section 1983 and the Rehabilitation Act. Resolution of these claims involves determining the liability of a medical facility and physician under Section 1983 and the Rehabilitation Act for treating a patient who has requested termination of medical treatment when they have serious doubts as to the patient's mental capacity.[1]

        23

        [1531] It is significant that few federal court precedents have been cited to the court dealing with the issues involved. As a result, the simplistic issue suggested by plaintiff is overshadowed by a greater and more difficult maze of legal-medical, ethical, and practical inquiries. (See Appendix for a discussion of recent case law and treatises on right to refuse medical treatment issues.)

        24
        III.
        25
        STATE DISTRICT COURT SUIT
        26
        A. Initial Proceedings of the State Court
        27

        The legal proceedings concerning Mr. Rodas began on August 22, 1986 when Hilltop and Dr. Cobb filed a petition in the Mesa County, Colorado, District Court. The case, entitled In the matter of: Hector O. Rodas, Case No. 86 PR 139, was presided over by the Honorable Charles Buss, District Judge. The petition requested appointment of a guardian for Mr. Rodas and a declaratory judgment on the issues of whether Mr. Rodas had a right to terminate his life at Hilltop through disconnection of the tube.

        28

        Mr. Rodas contested the petition, asserting a guardian was not necessary, and that he had the requisite mental capacity to refuse further medical treatment. Mr. Rodas' initial response to the petition did not raise claims under the Rehabilitation Act. However, his amended response included assertions under the Act.

        29

        Mr. Rodas also requested a determination that delays in the state court action and Hilltop's continued treatment of Mr. Rodas were a violation of his constitutional right to privacy. However, the issues were not raised until a few days before trial, and the state court denied Mr. Rodas the right to amend the complaint to assert these civil rights claims.

        30

        Commencing December 16, 1986, the state court conducted a thirteen day trial. An opinion was issued on January 22, 1987, which was later amended on April 3, 1987. A brief summary of the pertinent portions of Judge Buss' opinion follows.

        31
        B. Summary of District Court Opinion
        32

        Early in the proceedings, the state court appointed a temporary guardian and ordered him to maintain the feeding and hydration of Mr. Rodas pending final determination of the case. Dr. Schraa, a neurophychologist, was appointed as the court's expert as to Mr. Rodas' mental capacity. The case was given high priority on Judge Buss' docket but was delayed because of counsels' schedules and the difficulties in finding an expert.

        33

        In its recitation of the facts, the state court noted that the gastrostomy tube placed in Mr. Rodas' stomach caused him continual pain, especially when it was touched or moved. Another tube, inserted in his bladder to expel urine, was also painful. Mr. Rodas had to wear a diaper to collect excrement from his uncontrolled bowel movements. The prognosis of all medical testimony was that Mr. Rodas had no chance of improvement or in any way again using his body below the neck.

        34

        Although the medical testimony indicated that there was some uncertainty as to how long Mr. Rodas was likely to live, it was medically probable that Mr. Rodas would die prematurely. Further, it was medically probable that he would not live for more than ten years because of his locked-in state.

        35

        The facts further indicated that Hilltop and Mr. Rodas' doctors did not think Mr. Rodas needed the in-patient care at Hilltop. However, wherever he went, he would need nursing care twenty-four hours a day. His immediate family could not provide that type of care. Because of his request to terminate treatment, no hospital, nursing home, or hospice close to Grand Junction indicated a willingness to admit Mr. Rodas to their facilities.

        36

        At the beginning of his treatment, Dr. Cobb and Hilltop presumed Mr. Rodas had the requisite mental capacity because they assumed he, as most patients, wished to continue living. For several months following his admission, Mr. Rodas did not express any desire to terminate his life or [1532] withdraw from feeding and hydration. However, in late May or early June, Mr. Rodas began to communicate to his doctors and his nursing staff that he wanted to die. Following that time period, he consistently and continually requested that his feeding and hydration be discontinued. Hilltop and Dr. Cobb made efforts to obtain an attorney for Mr. Rodas. On August 5, 1986, Edward Durham, one of Mr. Rodas' attorneys, wrote a letter to Hilltop asking that his gastrostomy tube be removed. On August 21, Mr. Rodas' attorney wrote a letter to the district attorney, suggesting that Hilltop might be committing a continuing battery if it continued treatment of Mr. Rodas. On August 22, 1986, Hilltop and Dr. Cobb filed the state court suit.

        37

        The state court found that Hilltop and Dr. Cobb had the burden of proving Mr. Rodas' incapacity because they were attempting to prove he was mentally incapable of understanding the consequences of his decision and therefore should not be permitted to withdraw from treatment. Because the right involved was a significant, constitutionally protected liberty, the clear and convincing standard of proof was applied.

        38

        At the time of the trial, all of the psychologists and medical doctors who testified opined that Mr. Rodas did not show signs of acute depression or depression that rose to the level of a mental disorder or mental illness. After hearing many experts in psychiatry, psychology, neurology, and other specialized areas of medicine, the state court determined that Mr. Rodas retained the ability to comprehend and communicate his thoughts, and that he did not suffer from a mental disability or mental illness.

        39

        The state court further ruled that Mr. Rodas had a constitutional right to refuse medical treatment. Several tests of legal capacity were applied, resulting in the conclusion that Hilltop and Dr. Cobb had failed to prove by clear and convincing evidence that Mr. Rodas lacked the capacity to make decisions regarding what medical treatment to accept or refuse. The state court affirmatively found that Mr. Rodas had the mental capacity to make those decisions.

        40

        The feeding and hydration of Mr. Rodas through the gastrostomy tube was found to be medical treatment over which Mr. Rodas had the capacity to give or withhold his consent. Mr. Rodas was found to have given his informed consent to terminate medical treatment.

        41

        After an extensive and well-reasoned analysis of the facts, Colorado law, and the law of other jurisdictions, the state court held that Hilltop and Dr. Cobb had failed to establish by clear and convincing evidence that Mr. Rodas should not be permitted to exercise the right to refuse feeding and hydration treatment. Further, due to the circumstances surrounding Mr. Rodas' admission to Hilltop, Hilltop was required to allow Mr. Rodas to terminate the medicinal, feeding, and hydration treatment he received and provide him with the necessary nursing care following the cessation of treatment. A surrogate or attorney-infact, chosen by Mr. Rodas, was appointed to act on his behalf in the event he became mentally incapacitated as he neared death.

        42

        In specific findings on Mr. Rodas' Rehabilitation Act contentions, the state court determined that Mr. Rodas had failed to meet his burden of proof in demonstrating a violation of the Rehabilitation Act.

        43

        Finally, Mr. Rodas' request for court appointed counsel was denied. The state court reasoned that Mr. Rodas had a right to be represented by court appointed counsel under the Probate Code if he could not afford to hire one. However, since his attorney agreed to represent him without charge through the American Civil Liberties Union, the Probate Code could not be interpreted to permit court appointed counsel. Thus, the Probate Code did not authorize the use of state funds to pay Mr. Rodas' attorneys.

        44

        The petitioners, Dr. Cobb and Hilltop, did not appeal the state court's findings. The only portion of the decision appealed by Mr. Rodas was the court's denial of Mr. Rodas' motion for appointment of attorney and allowance for expenses and costs.

        45
        [1533] IV.
        46
        PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
        47

        Summary judgment is appropriate only if there are no genuine issues as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, and all doubts resolved in favor of the existence of triable issues of fact. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 77, 88 L.Ed. 2d 63 (1985). Only disputes over facts that might affect the outcome of the suit will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).

        48

        Plaintiff moves for partial summary judgment that defendants deprived Mr. Rodas of his constitutional rights by violating Section 1983 and the Rehabilitation Act. Plaintiff argues these violations occurred due to defendants' medical treatment of Mr. Rodas against his will and without appropriate court authorization from June 17, 1986 until August 22, 1986.

        49

        Summary judgment in favor of plaintiff is inappropriate. Genuine issues of material fact exist as to whether Mr. Rodas had the requisite mental capacity to refuse medical treatment during the time period at issue. Defendants Hilltop and Dr. Cobb had legitimate concerns about whether Mr. Rodas was mentally competent to make an informed consent for withdrawal from medical treatment. Even prior to his paralysis, Mr. Rodas had twice attempted suicide. (Thomas E. Miller Depo. pp. 55-56.) In the Summer of 1986, his wife filed to dissolve their marriage. Throughout 1986, the Immigration and Naturalization Service (INS) sought to deport him to Guatemala. Additionally, the debilitating accident in February 1986 was proximate to these other events. Therefore, during the relevant period, Mr. Rodas had several stressful problems that could readily affect his judgment and mental stability.

        50

        When Dr. Cobb learned of Mr. Rodas' desires, he consulted Dale Bowen, Hilltop's Director of Psychology. Dr. Bowen had observed Mr. Rodas since his admission to Hilltop and attributed Mr. Rodas' wish for death to his diagnosis that Mr. Rodas suffered from an adjustment disorder with depressed mood. (Dale Bowen Depo. p. 8.) Dr. Bowen also observed that Mr. Rodas had shown some interest in an electric wheelchair and obtaining a communication device. Dr. Bowen interpreted this as an indication of some interest in becoming involved in long term treatment. (Dale Bowen Depo. p. 9.) Other severely disabled patients at Hilltop had expressed similar feelings as to termination of treatment, but all had eventually changed their minds and had come to terms with their situations. (Dale Bowen Depo. pp. 15-16.)

        51

        Upon being informed of Mr. Rodas' wishes, Dr. Cobb wanted an additional psychological evaluation of Mr. Rodas. He communicated this wish to Mr. Rodas, "I told him I felt more detailed psychological testing was needed, and did he concur with that, and he agreed". (William Cobb Depo. p. 52.)

        52

        Further, Mr. Rodas and his attorneys were arguably ambivalent about Mr. Rodas' wishes to terminate treatment in June and July, 1986. On August 5, 1986, Mr. Rodas' attorneys made the first formal request that Hilltop and Dr. Cobb cease Mr. Rodas' hydration and nutrition. (Letter, Edward Durham to Hilltop, August 5, 1986, Cobb's Memorandum, Exhibit I.) The request claimed that Mr. Rodas had been evaluated and there was no indication that he lacked mental capacity. However, Dr. Thomas Miller, Mr. Rodas' psychiatrist, had examined Mr. Rodas on July 21, 1986 "for somewhat in excess of an hour". (Letter, Thomas Miller to Edward Durham, August 1, 1986, Cobb's Memorandum, Exhibit [1534] J.) Dr. Miller admitted that his opinion was tentative, and that he would not have wanted anyone to rely upon the opinion, given the short amount of time he had to examine Mr. Rodas. (Thomas Miller Depo. p. 69.)

        53

        On July 15, 1986, Mr. Rodas' feeding tube became dislodged. Mr. Durham was immediately informed of the fact and told Hilltop's counsel he had no objection to reinsertion of the tube, and the insertion was made. (Edward Durham Depo. pp. 47-48, 54-55.)

        54

        Sally Schaefer, a Hilltop administrator, testified that Mr. Rodas initially was told Hilltop could not comply with his request as to termination of treatment

        55
        until we got some legal things sorted out. And I routinely just touched base with him to say, "We're still working on it. Are you okay with that?" And he always indicated to me that he was just fine with that, and he understood that. There was never pressure from him to expedite.
        56

        (Sally Schaefer Depo. p. 35.)

        57

        Yazmin Griego, Mr. Rodas' sister, opposed disconnection of Mr. Rodas' tube and threatened suit against Hilltop and Dr. Cobb. (Sally Schaefer Depo. p. 41.) Therefore, genuine issues of material fact concerning Mr. Rodas' mental capacity to terminate treatment preclude summary judgment in favor of plaintiff.

        58

        We further question plaintiff's assertions that defendants had an unqualified duty to either comply with Mr. Rodas' request to disconnect his tube or to initiate court proceedings to obtain a judicial determination of his mental capacity. At the time of these proceedings, the right to reject nutrition and hydration was not necessarily an unqualified part of the patient's right to reject treatment. The Colorado Medical Treatment Decision Act, Colo.Rev. Stat. § 15-18-101, et seq. (the "Medical Treatment Act"), is not specifically applicable in this action because Mr. Rodas did not execute a declaration under its provisions. Nevertheless, the Medical Treatment Act provides guidance on the right to refuse treatment issue. This "living will" statute permits comatose and terminally ill patients to prevent the application of life-sustaining procedures. However, specifically excluded from the statutory definition of life-sustaining procedures are procedures to nourish a qualified patient. Thus, the definition of life-sustaining procedures does not include "any procedure to provide nutrition or hydration". Colo.Rev.Stat. Section 15-18-103(7). The Medical Treatment Act arguably suggests that a patient's decision to reject nourishment should not be given the same deference as a decision to reject more intrusive procedures. This is further support for defendants' arguments that the law was not clear at the time of the events at issue.

        59

        Plaintiff argues that the law of informed consent was clearly established during the time period of this lawsuit. This contention is unavailing. Goedecke v. State of Colorado Department of Institutions, 198 Colo. 407, 603 P.2d 123 (1979), dealt with a mental patient's right to refuse to be forced to undergo treatment with drugs having serious deleterious side effects. The decision did not involve the refusal to receive life-sustaining medical treatment. As Judge Buss held, prior Colorado decisions did not decide the question of "whether a competent adult can refuse medical treatment where his life will end because of that refusal". In the Matter of Hector O. Rodas, No. 86 PR 139, slip op. at 25 (Colo.Dist.Ct. April 3, 1987).

        60

        The proceedings in state court determined that Mr. Rodas had the right to terminate nourishment and hydration feedings. However, prior to the state court ruling, this was a clouded area of the law in Colorado. Further, it is a substantial leap beyond the state court ruling for this court to make the additional finding that Mr. Rodas had a constitutional right to force defendants to vindicate his rights and assist in his death wish. During the period following Mr. Rodas' request to terminate gastrostomy feeding, the legal obligations of the defendants were unclear. Thus, there are genuine issues of material fact and legal questions precluding the court [1535] from granting plaintiff's motion for summary judgment.

        61

        In addition, an unanswered but interesting question remains as to why the attorneys for Mr. Rodas did not seek a judicial pronouncement terminating treatment. During the relevant period, Mr. Rodas was represented by experienced counsel, and the responsibility to protect his legal rights was equally within their purview.

        62
        V.
        63
        DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
        64
        A. Claims under 42 U.S.C. Section 1983
        65

        Defendants contend that they are entitled to summary judgment. Defendants argue plaintiff's Section 1983 claim fails as a matter of law because (1) defendants' actions are not state actions; (2) an alleged failure to implement state due process remedies does not constitute state action because all parties failed to implement the remedies; (3) Mr. Rodas' failure to mitigate damages precludes recovery by his estate; (4) even if the defendants acted under color of state law, they are shielded by the doctrine of qualified immunity; and (5) plaintiff's Section 1983 claim was a compulsory counterclaim in the state court action.

        66

        To establish a Section 1983 claim, plaintiff must establish the following elements: (1) an entity acting under color of state law; (2) who subjects or causes to be subjected any person; (3) to the deprivation of any rights; (4) that are secured by the Constitution or laws of the United States.

        67

        We are persuaded defendants have prevailed on their motions for summary judgment on the Section 1983 claim. In our view, plaintiff has failed to prove any state action by the defendants. Plaintiff's First Amended Complaint asserts that the following actions of the defendants constitute "state action": (1) the extensive state regulations governing Hilltop; (2) Hilltop's and Cobb's licensing by the State of Colorado; (3) Hilltop's receipt of compensation through Medicare, Medicaid, and Social Security programs; (4) Hilltop's funding, benefits, and authority from city, county, and state sources; (5) Hilltop's monopoly as a rehabilitation facility in the Grand Junction area; (6) the authority under Colo.Rev.Stat. § 27-10-101, et seq. concerning care and treatment of the mentally ill; and (7) Dr. Cobb's actions as Hilltop's representative and agent. First Amended Complaint ¶¶ 21, 22.

        68

        Taken individually or in their totality, the alleged actions of the defendants are insufficient to constitute state action. As noted, in order to maintain a civil rights action against a private entity or person, the "conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the State". Lugar v. Edmondson Oil Company, Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). To meet this standard, plaintiff must show there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the entity may fairly be treated as that of the state. In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court held a private school receiving 99% of its funding from the government was not acting under color of state law with respect to the discharge of personnel. Similarly, plaintiff in this action cannot show a sufficiently close nexus between the defendants' actions and the state entity.

        69

        Hilltop is a private, nonprofit Colorado corporation. (Hilltop's Memorandum, Exhibit H.) Hilltop receives Medicare and Medicaid fees, and is state licensed and regulated. (Hilltop's Memorandum, Exhibit H.) Dr. Cobb is a private individual; he did not receive any public funds for treating Mr. Rodas. (Cobb's Memorandum, Exhibit B, D, E.) While licensed as a physician by the state, Dr. Cobb does not work directly or indirectly for the state government.

        70

        These actions of the defendants are insufficient to support a finding of state action under Section 1983. In Loh-Seng Yo v. Cibola General Hospital, 706 F.2d 306 (10th Cir.1983), the plaintiff sued a hospital for civil rights violations. The hospital received [1536] public funds, was subject to public regulations, and was the only hospital of its type in the region. The court stated:

        71
        In this case, plaintiff bases his allegation of state action solely on receipt of governmental funds, extensive governmental regulation, and a localized geographic monopoly enjoyed by the hospital. However, he makes no allegation that these facts involved the state in any significant manner in the specific conduct of which he complains. Accordingly plaintiff has failed to establish state action sufficient to invoke the jurisdiction of this court.
        72

        706 F.2d at 308. (Emphasis in original.)

        73

        Under similar circumstances in Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir.1973), the Tenth Circuit Court of Appeals found that the district court's grant of summary judgment in favor of the defendant hospital was proper in a case involving denial of hospital privileges to a physician. The court reasoned that the plaintiff must show a causal connection between the state conduct and plaintiff's injury.

        74

        In Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), a nursing home's decision to discharge or transfer Medicaid patients was not state action, even though the home received state funds, because decisions regarding patient care were not related to funds.

        75

        In the case at bar, plaintiff has failed to show specific conduct of the defendants that can be considered state action causally connected to plaintiff's injury. Defendant Hilltop's receipt of Medicare and Medicaid funds is insufficient. Loh-Seng Yo, supra; Ward, supra. The fact that defendants failed to implement procedures provided by Colo.Rev.Stat. § 27-10-101, et seq., regarding treatment of the mentally ill, is not state regulation sufficient to establish state action. Neither is the availability of the provisions of Colo.Rev.Stat. § 15-14-301, et seq., concerning protection of persons with disabilities. The mere existence of state regulation affecting the defendants does not justify a finding of state action. There must be a showing of specific conduct which is shown to be state action or conduct that may be reasonably equated with state action.

        76

        The nexus between the state and Dr. Cobb is even more tenuous than that applicable to Hilltop. Prudential Insurance Company paid the bills sent by Dr. Cobb to Mr. Rodas. By no stretch of the imagination can Dr. Cobb's actions be fairly attributable to the state.

        77

        Plaintiff asserts the case of Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987), supports the proposition that a private health provider's refusal to stop life sustaining treatment can be considered "state action". Thus, the Arizona Supreme Court found that state action was present by virtue of the state's authority to license and regulate hospitals and its supervisory authority over the guardianship of incapacitated persons. Rasmussen is contrary to Tenth Circuit law and is not persuasive.

        78

        In In re Storar, 52 N.Y.2d 363, 420 N.E. 2d 64, 438 N.Y.S.2d 266 (N.Y.), cert. denied sub nom., Storar v. Storar, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981), the New York Supreme Court found that a right to refuse medical treatment existed based solely on common law grounds. The New York Supreme Court specifically deleted all findings of the appellate court in In re Eichner, 73 A.D.2d 431, 426 N.Y.S.2d 517 (N.Y.App.Div.1980), except the court's finding authorizing discontinuance of the petitioner's respirator. Thus, the Eichner court's finding that state action existed as a result of the state's parens patriae responsibility was overruled.

        79

        The case of In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983), does not support plaintiff's position. In Colyer, the husband of an incompetent patient in a chronic vegetative state sought a court order to discontinue life-sustaining systems. The court determined that if a right to privacy existed based upon the federal constitution and applied to the states through the Fourteenth Amendment, it would extend only to situations where state action exists. The court found that a sufficiently close nexus between the state and the hospital existed due to (1) the capability of imposing criminal [1537] sanctions on the hospital and its staff, (2) state licensing of physicians, (3) the required involvement of the judiciary in the guardianship appointment process, and (4) the state's parens patriae responsibility to supervise the affairs of incompetents. We elect to refrain from following the Colyer decision because first, that case improperly relied upon the superseded Eichner decision, and secondly, it is in conflict with Tenth Circuit law.

        80

        A California case worthy of note is Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986) (Bouvia I).[2] In Bouvia I, the plaintiff filed suit requesting a temporary injunction for the removal of a nasogastric feeding tube. The tube had been inserted against her will by the medical staff of a nursing facility operated by the County of Los Angeles Department of Health Services. The appellate court directed the trial court to issue an injunction ordering removal of plaintiff's feeding tube and prohibiting its replacement without plaintiff's consent. The proceedings in Bouvia v. Glenchur, 195 Cal.App.3d 1075, 241 Cal.Rptr. 239 (1987) (Bouvia II), commenced when Bouvia's treating physicians began to reduce the use of morphine in the treatment of her chronic pain after the removal of her nasogastric feeding tube. Bouvia filed a suit for damages and injunctive relief to prohibit the hospital from decreasing her morphine dosage. Two independent physicians appointed by the trial court recommended that Bouvia be transferred to another facility where she could enter a program to reduce her morphine dependence. The trial court issued a temporary injunction that she be returned to the medical center, and rejected her claims for attorney fees under 42 U.S.C. § 1988. The appellate court confirmed the trial court's denial of attorney fees, finding that the "fortuitous fact" that plaintiff was treated in a hospital maintained by the County of Los Angeles was not sufficient to invoke a civil rights violation under Section 1983. Further, Bouvia had failed to show that her injuries were proximately caused by the execution of a governmental policy or custom. Thus, the evidence failed to establish that the decision to withdraw Bouvia from morphine was made pursuant to any governmental custom, plan, or scheme. We concur with the reasoning in Bouvia II.

        81

        Thus, in the case at bar, plaintiff's claim under Section 1983 is not supportable. Simply stated, plaintiff cannot establish state action by defendants.

        82
        B. Claims under the Rehabilitation Act
        83

        Defendants argue plaintiff's claims under the Rehabilitation Act are not legally cognizable. We agree. We have the benefit of the state district court ruling, filings in that case, and pleadings and representations detailed by the parties in this action. Thus, there is ample evidence before us to find and conclude that (1) the Rehabilitation Act does not apply to the type of claim asserted by plaintiff; (2) defendants did not discriminate against Mr. Rodas under the provisions of the Rehabilitation Act; and (3) plaintiff's Rehabilitation Act claims are barred by the principles of collateral estoppel and the doctrine of res judicata.

        84

        Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 provides in pertinent part:

        85
        No otherwise qualified handicapped individual in the United States, as defined in section 706(8) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...
        86

        In order to state a claim under Section 504, plaintiff must prove that (1) Mr. Rodas was handicapped within the meaning of the Rehabilitation Act; (2) that he was "otherwise qualified" for the position or benefit sought; (3) that he was excluded from the position or benefit solely by reason of his handicap; and (4) that the position or benefit exists as part of a program or activity [1538] receiving federal financial assistance. Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1384 (10th Cir.1981); Doe v. New York University, 666 F.2d 761, 775 (2nd Cir.1981).

        87

        Plaintiff asserts defendants violated the Rehabilitation Act by failing to follow Mr. Rodas' explicit instructions to remove his gastrostomy tube because of their perception that Mr. Rodas was mentally handicapped. Plaintiff further argues defendants discriminated against Mr. Rodas because of his actual physical handicap by failing to obtain court authorization for the unwanted treatment — treatment he was physically unable to refuse.

        88

        The Rehabilitation Act does not apply to asserted violations of this type. In School Board of Nassau County, Florida v. Arline, 480 U.S. ___, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), the Supreme Court discussed pertinent provisions of the legislative history of the Rehabilitation Act as follows:

        89
        In enacting and amending the Act, Congress enlisted all programs receiving federal funds in an effort `to share with handicapped Americans the opportunities for an education, transportation, housing, health care, and jobs that other Americans take for granted'. 123 Cong Rec 13515 (1977) (statement of Sen. Humphrey)
        90

        480 U.S. at ___, 107 S.Ct. at 1126, 94 L.Ed.2d at 315. The assertion that the Rehabilitation Act applies to a right to refuse medical treatment in a situation such as this is an extremely expansive view of "health care", a view we have considered and reject.

        91

        Plaintiff argues the regulations promulgated under the statute are written broadly and result in the Rehabilitation Act applying to this action. The regulations prohibit a recipient of federal financial assistance from limiting a "qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service". 45 C.F.R. § 84.4(b)(1)(vii).

        92

        We have considered and reject plaintiff's argument. Our research fails to disclose precedent for the view that unwanted medical treatment is a violation of the Rehabilitation Act. The most closely analogous case is United States v. University Hospital, State University of New York, 729 F.2d 144 (2nd Cir.1984). In University Hospital, the parents of a child born with multiple birth defects did not consent to corrective surgical procedures, instead opting for more "conservative" medical treatment. During the pendency of proceedings in state court regarding the parents' decision, the United States Department of Health and Human Services (H.H.S.) received a complaint from an unidentified "private citizen" that Baby Jane Doe was being denied medical treatment on the basis of her handicap. The H.H.S. obtained a copy of the state court proceedings and attempted to inspect Baby Jane Doe's medical records based on its authority to conduct an appropriate investigation under Section 504 of the Rehabilitation Act. The University Hospital refused to release the medical records because of (1) the parents' refusal to release the record, and (2) questions concerning the jurisdiction of the H.H.S. The government brought suit, alleging a violation of Section 504 as a result of the hospital's refusal to allow the H.H.S. access to Baby Jane Doe's medical records. The district court found in favor of the hospital. On appeal, the defendant-appellees argued that "congress did not intend that Section 504 serve as the basis for federal intervention in medical decision-making". 729 F.2d at 149. In a well-reasoned opinion, the Second Circuit analyzed Section 504, its legislative history, and applicable regulations. The appellate court concluded that Section 504 of the Rehabilitation Act did not apply to treatment decisions involving defective newborn infants. Reasoning that the "otherwise qualified" language of the Rehabilitation Act did not apply to a newborn infant suffering from multiple birth defects, the Circuit stated:

        93
        Doe establishes that section 504 prohibits discrimination against a handicapped individual only where the individual's handicap is unrelated to, and thus improper to consideration of, the services [1539] in question. As defendants here point out, however, where medical treatment is at issue, it is typically the handicap itself that gives rise to, or at least contributes to, the need for services. Defendants thus argue, and with some force, that the "otherwise qualified" criterion of section 504 cannot be meaningfully applied to a medical treatment decision.
        94
        . . . . .
        95
        ... As a result, the phrase [otherwise qualified] cannot be applied in the comparatively fluid context of medical treatment decisions without distorting its plain meaning. In common parlance, one would not ordinarily think of a newborn infant suffering from multiple birth defects as being "otherwise qualified" to have corrective surgery performed or to have a hospital initiate litigation seeking to override a decision against surgery by the infant's parents. If congress intended section 504 to apply in this manner, it chose strange language indeed.
        96

        729 F.2d at 156. The Second Circuit further found that the medical treatment decision did not fit within the "subjected to discrimination" language of Section 504. The Circuit Court stated, "[w]here the handicapping condition is related to the condition(s) to be treated, it will rarely, if ever, be possible to say with certainty that a particular decision was `discriminatory'". 729 F.2d at 157. The Second Circuit's rationale in University Hospital was affirmed by the Supreme Court in Bowen v. American Hospital Association, 476 U.S. 610, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986) (4-1-4 decision).[3]

        97

        Although the instant action does not involve medical treatment of handicapped newborn infants, the reasoning used in University Hospital applies here. In our view, the Rehabilitation Act does not apply to the medical treatment decisions of a physically handicapped individual, of questionable mental competency, who requests his treating physician and hospital to terminate medical treatment. The application of the "otherwise qualified" requirement of Section 504 does not square with the facts in this case. Mr. Rodas was admitted to Hilltop for the purpose of obtaining medical treatment for his physical and medical handicap; the defendants' decisions on Mr. Rodas' request to terminate gastrostomy feedings were interwoven with their medical decisions regarding Mr. Rodas' treatment. Thus, in these circumstances, Section 504 of the Rehabilitation Act is inapplicable. See also Sabo v. O'Bannon, 586 F.Supp. 1132 (E.D.Pa.1984) (No cause of action exists under Section 504 where the gravamen of the complaint asserts a violation of the Act by denying a mentally retarded individual placement in a residential, non-institutional facility.)

        98

        Even assuming that the Rehabilitation Act applies to the types of rights alleged to have been violated by defendants, a further basis exists for our grant of summary judgment. Plaintiff has failed to show as a genuine issue of material fact that defendants discriminated against Mr. Rodas. Plaintiff has not shown any instance where defendants treated Mr. Rodas differently from any other individual under their care, nor has plaintiff shown that defendants would have treated a "competent patient" differently. In fact, Dr. Cobb's rationale for treating Mr. Rodas was his fear that if Mr. Rodas "were competent, then I would be assisting in a suicide, which is manslaughter, and if he were incompetent, then I would be doing the deed myself, manslaughter, second degree murder". (Cobb Depo. p. 49.) Dr. Cobb's professional decision to continue treatment of Mr. Rodas does not establish discrimination against the handicapped. In fact, from the record one can clearly see that the course of conduct by Dr. Cobb was sensitive, caring, and professional. The perplexing medical and ethical issues facing Dr. Cobb are well stated in his deposition:

        99
        Q Is there some reason that you didn't go into court, or the hospital, to your knowledge, didn't go into court and [1540] ask the judge to make that legal decision at that time?
        100
        A There were discussions all along between the attorneys as far as the appropriate way to proceed. As I've eluded (sic) to already, who was required to do the action in this, what the action is, was totally unclear. We were feeling our way along in a damn complicated case, involving life or death, with me in the driver's seat.
        101

        (Cobb Depo. p. 50.)

        102

        Although Mr. Rodas ultimately prevailed in his decision to forego medical treatment, and was found to have the mental capacity to refuse treatment, defendants' actions can hardly be considered discriminatory due to any mental or physical handicap of Mr. Rodas. The state court held a lengthy trial, and issued a thirty-eight page opinion covering many issues, including that of Mr. Rodas' mental competency. This is an indication of how strongly the parties contested Mr. Rodas' mental capacity. The defendants' doubts about Mr. Rodas' capacity were reasonable. This does not constitute discriminatory treatment under the Rehabilitation Act. The decision to continue treatment was a judgment call and a decision of life and death consequences.

        103

        Plaintiff next argues that but for Mr. Rodas' "inability to physically refuse unauthorized medical treatment", defendants would have taken fewer than 66 days to seek a court ruling on his treatment. This assertion must also fail. Mr. Rodas had retained legal counsel and could have refused treatment or initiated the state court action through counsel. Mr. Rodas also had relatives who could have taken the necessary steps. In addition, when mental capacity is questionable, a delay of 66 days in determining a life and death matter on an issue of first impression in the Colorado courts is not unreasonable.

        104

        Plaintiff contends that the testimony of Sally Schaefer supports the contention that defendants discriminated against Mr. Rodas due to his physical handicap. Sally Schaefer testified in her deposition that if Mr. Rodas had not been so physically disabled, Hilltop would have considered involuntarily committing him under the procedures proscribed by the Colorado Care and Treatment of the Mentally Ill Act, Colo. Rev.Stat. § 27-10-101, et seq. (Schaefer Depo. pp. 17-21.) This testimony does not prove plaintiff's point. Schaefer testified that Hilltop would have considered involuntary commitment procedures because Mr. Rodas would have been a danger to himself if he had the physical capacity to move. Since he could not move, he presented no physical danger to himself or others. Therefore, the availability of commitment procedures is no indication that defendants' failure to file suit earlier was discrimination based upon a physical handicap.

        105

        Finally, defendants argue plaintiff's Rehabilitation Act claims are barred by the principles of collateral estoppel and res judicata. We agree with this contention. The doctrine of collateral estoppel (claim preclusion) requires: (1) the issue must be identical to an issue actually and necessarily decided at the prior proceedings; (2) a final judgment on the merits of the first proceeding; (3) identity or privity of parties against whom the doctrine is asserted; and (4) the party against whom the doctrine is claimed must have had a full and fair opportunity to litigate the issue in the prior proceeding. In the Matter of Lombard, 739 F.2d 499, 502 (10th Cir.1984); People ex rel. Gallagher v. District Court, 666 P.2d 550, 554 (Colo.1983).

        106

        The requirements of collateral estoppel are met by the issues involved and decided in the prior state court proceedings. First, the issues in this case are identical to an issue previously decided. Mr. Rodas' amended response in the state court action states:

        107
        4. Additionally, the actions of petitioners in refusing to honor the request to withhold further treatment to said Hector O. Rodas demonstrates that petitioners are failing to provide Mr. Rodas with free choice, rights of privacy, and rights of personal bodily integrity that would be provided if Mr. Rodas were not physically handicapped and unable to effect his choice himself.
        108
        [1541] 5. The acts of petitioners in seeking to foreclose Mr. Rodas from exercising his constitutionally protected and individual choice to refuse treatment at his current location in Hilltop Rehabilitation Hospital constitute a direct infringement and deprivation of his rights. As such, the actions of petitioners constitute violation of rights guarantied to Mr. Rodas under the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978; Title V, Section 504; 29 U.S.C. § 794.
        109

        (Rodas' First Amended Response, Exhibit D to Hilltop's Memorandum.) These assertions are almost identical to paragraphs 28 through 36 of the First Amended Complaint.

        110

        Second, the state court issued a final judgment on the merits of the Rehabilitation Act claim. The state court specifically found: "Hector Rodas' claims made under 29 U.S.C. Sec. 794 are denied and dismissed". In the matter of Hector O. Rodas, No. 86 PR 139, slip op. at 38 (Colo. Dis.Ct. April 3, 1987). The state court further found:

        111
        Mr. Rodas claims that since requesting termination of feeding treatment on June 17, 1986, he has been discriminated against and that by that discrimination, Hilltop has violated and will continue to violate the Federal Rehabilitation Act, 29 U.S.C. Sec. 794. Although that act may give Mr. Rodas a right to a private claim, Mr. Rodas has failed to meet his burden of proof that he has been or will be discriminated against or that there has been or will be a violation of that act by Hilltop in the manner in which they provided or did not provide treatment or will treat Mr. Rodas. This claim should be denied.
        112

        Id. at 35. Third, the parties are identical or in privity with the parties in the state suit.

        113

        The only substantial question is whether the fourth element of collateral estoppel is present, whether plaintiff had a full and fair opportunity to litigate the Rehabilitation Act claims in the prior proceeding. Plaintiff argues Mr. Rodas did not have an adequate opportunity for a full and fair adjudication in the state court because of the limited nature of the proceedings. Plaintiff argues Rodas I was initiated by defendants to (1) obtain a guardian for Mr. Rodas, and (2) for declaratory relief that Mr. Rodas did not have the right to terminate life-supporting medical treatment, and that defendants could not be required to discontinue treatment. Plaintiff further asserts the Rehabilitation Act claims were raised only in the form of an affirmative defense; Mr. Rodas did not seek damages under the statute. Instead, the court and the parties treated the action as a probate action.

        114

        We disagree with the contentions. Plaintiff had a full and fair opportunity to raise any issues raised by the Rehabilitation Act. The state court held a lengthy trial and heard the testimony of numerous witnesses. We are impressed by the quality, thoroughness, and fairness of procedures followed in the prior litigation. Montana v. United States, 440 U.S. 147, 164 n. 11, 99 S.Ct. 970, 979 n. 11, 59 L.Ed.2d 210 (1979). The requisites of collateral estoppel have been met.

        115

        We further find the doctrine of res judicata is applicable. The doctrine of res judicata requires: (a) identity of the subject matter; (b) identity of the cause of action; (c) identity of the parties; and (d) identity of capacity in the persons for which or against whom the claim is made. City of Westminster v. Church, 167 Colo. 1, 445 P.2d 52, 55 (1968); Miller v. Lunnon, 703 P.2d 640, 643 (Colo.App.1985).

        116

        Plaintiff asserts res judicata does not apply because Mr. Rodas was not allowed to present evidence relating to the Rehabilitation Act. Instead, Mr. Rodas' evidence focused on his mental competency to make his own medical decisions. Plaintiff's arguments are not persuasive. The subject matter of Mr. Rodas' state court Rehabilitation Act contentions is identical to the claims raised by plaintiff's First Amended Complaint — whether defendants' conduct violated the Rehabilitation Act. Mr. Rodas was a party in the state court action; his estate is a party in this action. The fact that he was a respondent in the state court [1542] and his estate is a plaintiff in this action satisfies the requirement of identity of parties. Therefore, the requirements of res judicata are met.

        117

        Plaintiff argues defendants are inconsistent in requesting partial summary judgment in their favor, and also asserting genuine issues of material fact exist preventing the grant of summary judgment in favor of plaintiff. We disagree. Plaintiff's motion for summary judgment must be denied, as discussed previously, because she requests a definitive ruling as to a physician's responsibility to a competent patient who requests cessation of medical treatment. As to plaintiff's motion, genuine issues of material fact exist as to Mr. Rodas' mental capacity. To the contrary, defendants' motions involve purely legal issues, i.e., that plaintiff failed to establish state action under Section 1983, and that plaintiff's Rehabilitation Act claims are not cognizable under applicable law.

        118
        CONCLUSION
        119

        Putting aside the legal jargon and the technicalities of the applicable statutes, we find that plaintiff is not entitled to prevail. Defendants acted reasonably and even admirably, in an exceedingly difficult situation. To summarize the important aspects of the case, Mr. Rodas, who was unable to move and who could communicate only with great difficulty, requested that his medical treatment cease. Hilltop is a rehabilitation center with the goal of prolonging life and encouraging rehabilitation. Dr. Cobb's ethical beliefs suggested that following Mr. Rodas' request would be either assisting suicide or second degree murder. Mr. Rodas had in the past attempted suicide and expressed suicidal inclinations. Psychological evaluations as to the mental capacity of Mr. Rodas were conflicting. At least one evaluation stated he suffered from a mental illness and depression. Mr. Rodas was under much stress at the time of his request. His wife had filed for divorce. The Immigration and Naturalization Service was threatening him with deportation proceedings. Mr. Rodas had only recently suffered a severe injury resulting in paralysis from the neck down, requiring feeding through a gastrostomy tube. Mr. Rodas' sister, Yazmin Griego, had threatened a civil suit against Hilltop and Dr. Cobb if medical treatment was terminated. Other previous Hilltop patients had expressed grief and frustration and indicated a preference to die, but all had subsequently changed their minds.

        120

        Under these circumstances, Hilltop and Dr. Cobb attempted to obtain legal representation for Mr. Rodas. Their actions were above reproach and as noted, were marked with sensitivity, care, and a high degree of professional responsibility.

        121

        Accordingly, IT IS ORDERED that the motions for summary judgment filed by defendants Hilltop Rehabilitation Hospital and William Cobb, M.D. are GRANTED. The Clerk of the Court is DIRECTED to enter summary judgment in favor of the defendants and against the plaintiff.

        122

        Plaintiff's motion for summary judgment is DENIED. The Clerk of the Court is directed to enter appropriate Judgment dismissing the amended complaint and cause of action.

        123

        The parties' motions for attorney fees are held in abeyance. The parties are DIRECTED to file any motions for attorney fees and briefs in support of the motions by January 22, 1988. All responses shall be filed by February 2, 1988.

        124
        APPENDIX
        125

        The right to refuse medical treatment is an area of emerging jurisprudence. In this Appendix we briefly summarize several important decisions and list important treatises on the right to refuse medical treatment issue. Cases discussed in the text of the opinion are not included herein.

        126
        A. Leading Decisions
        127

        In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976), involved a comatose 21 year old woman, in a chronic and persistent vegetative state. The New Jersey Supreme Court appointed Quinlan's father as her guardian. The court held that Quinlan had a right to privacy which included the [1543] right to terminate her noncognitive, vegetative existence. Further, her right to privacy could be exercised on her behalf by her guardian.

        128

        In Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), the Supreme Judicial Court of Massachusetts affirmed the Probate Court's decision to deny chemotherapy treatment to a 67 year old profoundly retarded man who had developed a fatal form of leukemia. The "substituted judgment doctrine" was applied in determining whether to give medical treatment. The substituted judgment doctrine considers what decision would be made regarding treatment if the incompetent person were actually competent. One of the factors to be considered is the present and future incompetency of the patient.

        129

        Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334 (Del.1980) and In re Severns, 425 A.2d 156 (Del.Ch.1980), granted the guardian of a 55 year old woman in a permanently comatose state, the authority to discontinue all medical treatment, including a nasogastric tube.

        130

        An individual who was terminally ill, and in a permanent vegetative state was held to have a constitutional right of privacy to decline medical treatment in Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980). Further, the patient's guardian was permitted to direct discontinuance of a respirator on the patient's behalf when clear and convincing evidence existed that the individual would refuse treatment.

        131

        In the Matter of Lydia E. Hall Hospital, 116 Misc.2d 477, 455 N.Y.S.2d 706 (N.Y. App.Div.1982), determined that the decision to forego dialysis treatment by a terminally ill renal disease patient would be honored, even though the patient had become comatose. In this case, the patient had made an informed, rational and knowing decision to forego treatment prior to becoming comatose.

        132

        The Florida Supreme Court ruled that it was not necessary to obtain the approval of a court-appointed guardian before terminating extraordinary life support systems of a terminally ill individual who had executed a "living will". The family and attending physicians and hospital would be relieved of civil and criminal liability even though the guardian's approval was not obtained. John F. Kennedy Hospital v. Bludworth, 452 So.2d 921 (Fla.1984).

        133

        Delio v. Westchester County Medical Center, 129 A.D.2d 1, 516 N.Y.S.2d 677 (N.Y.App.Div.1987), found by clear and convincing evidence that Delio had made a solemn and intelligent decision while competent that he would refuse to be maintained in a chronic vegetative state with nutrition and hydration tubes. Further, there was no compelling countervailing state interest to override Delio's common-law right to refuse treatment. Thus, exercise of that right would be honored.

        134

        In In the Matter of Farrell, 108 N.J. 335, 529 A.2d 404 (1987), the New Jersey Supreme Court found that a competent, terminally ill adult patient living at home had the right to choose to have her life-supporting treatment by respirator disconnected.

        135

        A 74 year old incompetent woman was held to have a constitutional right to privacy and right to refuse life prolonging procedures in In the Matter of Beth Israel Medical Center, 136 Misc.2d 931, 519 N.Y. S.2d 511 (N.Y.Sup.Ct.1987). The New York County Supreme Court considered the patient's condition, her limited life expectancy, and risk of not surviving surgery, and refused to order emergency surgery, even though she would die from gangrene if the operation were not performed.

        136

        In re Gardner, 534 A.2d 947 (Me.1987), involved an individual who was in a persistent vegetative state, but had made a preaccident determination to permit the discontinuation of life-sustaining procedures. The Maine Supreme Court held that the individual's guardian could require compliance with the patient's preaccident determination.

        137
        B. Treatises
        138

        The following treatises outline important recent developments in the legal and medical areas:

        139

        1. Alexander M. Capron, Right to Refuse Medical Care, in Encyclopedia of Bioethics, Vol. I, pp. 1498-1507 (1978).

        140

        [1544] 2. David J. Sharpe, Salvatore F. Fiscina, and Murdock Head, Cases and Materials on Law and Medicine (1978).

        141

        3. Walter Wadlington, Jon Waltz, and Roger Dworkin, Cases and Materials on Law and Medicine (1980).

        142

        4. David W. Meyers, Medico and Legal Implications of Death and Dying (1981).

        143

        5. Shapiro and Spece, Problems, Cases and Materials on Bioethics and Law (1981).

        144

        6. William J. Curran and E. Donald Shapiro, Law, Medicine and Forensic Science (3rd ed. 1982).

        145

        7. Salvatore F. Fiscina, Medical Law for the Attending Physician (1982).

        146

        8. Samuel Gorovitz, Doctors' Dilemmas: Moral Conflict and Medical Care (1982).

        147

        9. Legal and Ethical Aspects of Treating Critically and Terminally Ill Patients, (A. Doudera and J. Peters eds. (1982).

        148

        10. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (President's Commission), Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship, U.S. Government Printing Office (1982).

        149

        11. President's Commission, Deciding to Forego Life-Sustaining Treatment: Ethical, Medical and Legal Issues in Treatment Decisions, U.S. Government Printing Office (1983).

        150

        12. John A. Robertson, The Rights of the Critically Ill, an American Civil Liberties Union Handbook (1983).

        151

        13. Judith Areen, Patricia King, et al., Law, Science and Medicine (1984).

        152

        14. Charles W. Lidz, Alan Meisel, et al., Informed Consent: A Study of Decision-making in Psychiatry (1984).

        153

        15. By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water (J. Lynne, M.D. ed. 1986).

        154

        16. Concern for the Dying, an Educational Council, The Living Will and Other Advance Directories: A Legal Guide to Medical Treatment Decisions (1986).

        155

        17. Fay A. Rozovsky, Consent to Treatment: A Practical Guide (1984 & Supp. 1986).

        156

        18. Furrow, Johnson, Jost and Schwartz, Health Law: Cases, Materials and Problems (1987).

        157

        19. The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (1987).

        158

        20. Health Care Ethics: A Guide for Decision Makers, (G. Anderson and V. Anderson eds. 1987).

        159

        21. American College of Legal Medicine, Legal Medicine: Legal Dynamics of Medical Encounters (in press).

        160
        C. Annotations
        161

        The following American Law Reports annotations provide case digests and summaries of decisions on the right to refuse medical treatment issue.

        162

        1. Karnezis, Power of Court to Order or Authorize Discontinuation of Extraordinary Medical Means of Sustaining Human Life, 79 A.L.R.3d 237 (1977).

        163

        2. Karnezis, Patient's Right to Refuse Treatment Allegedly Necessary to Sustain Life, 93 A.L.R.3d 67 (1979).

        164

        3. Hodson, Judicial Power to Order Discontinuance of Life-Sustaining Treatment, 48 A.L.R.4th 67 (1986).

        165

        [1] Some cases refer to "mental competency". We prefer the issue to be one of "mental capacity".

        166

        [2] We recognize Bouvia I and Bouvia II to be precedent setting and in the forefront of jurisprudence in this field. Bouvia I was one of the initial cases involving removal of a nasogastric feeding tube at the request of the patient. The right of a mentally competent adult to refuse feeding through a nasogastric feeding tube was delineated.

        167

        [3] The Bowen decision invalidated regulations promulgated by the Department of Health and Human Services regarding procedures relating to health care for handicapped infants.

    • 4.4 4. Contemporaneousness

      • 4.4.1 Werth v. Taylor

        2

        Page 426

        5
        475 N.W.2d 426

        8
        Cindy K. WERTH and Donald E. Werth, Plaintiffs-Appellants,
        v.
        Michael V. TAYLOR, M.D., Defendant-Appellee,
        and
        County of Alpena, d/b/a Alpena General Hospital, Alcona
        Citizens for Health, Inc., d/b/a Alcona Health
        Center, Cheryl L. Parsons, M.D., C.L.
        McDougall, M.D., and Mark J.
        Outman, C.R.N.A.,
        Defendants.

        11
        Docket No. 123785.
        190 Mich.App. 141, 475 N.W.2d 426

        14
        Court of Appeals of Michigan.

        17
        Submitted Jan. 16, 1991, at Lansing.
        Decided July 8, 1991, at 9:05 a.m.
        Released for Publication Oct. 28, 1991.
        19

        Page 427

        21

                [190 MICHAPP 141] Sommers, Schwartz, Silver & Schwartz, P.C. by Stanley S. Schwartz and Richard L. Groffsky, Southfield, for plaintiffs-appellants.

        23

                Stroup, Johnson & Tresidder, P.C. by Charles W. Johnson, Petoskey, for Michael V. Taylor, M.D.

        25

                Before NEFF, P.J., and SHEPHERD and McDONALD, JJ.

        27

                NEFF, Presiding Judge.

        29

                Plaintiffs, Cindy K. Werth and donald[190 MICHAPP 142] E. Werth, appeal as of right from an order of the circuit court granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant, Michael V. Taylor, M.D. We affirm.

        32
        I
        34

                Plaintiffs filed a civil battery claim against defendant Taylor based on his authorization of a blood transfusion for Cindy Werth despite plaintiffs' refusals. Plaintiffs also filed a medical malpractice claim against Taylor and other defendants. The medical malpractice claim is not the subject of this appeal.

        36

                The facts are not in dispute. Cindy and her husband Donald are Jehovah's Witnesses. It is unquestioned that they are both devoted adherents to the tenets of their chosen faith. According to Cindy Werth's deposition testimony, one of the most deeply held of these tenets is the belief that it is a sin to receive blood transfusions.

        38

                In August 1985, Cindy, the mother of two children, became pregnant with twins. About two months before the expected date of delivery, Cindy went to Alpena General Hospital to preregister. She filled out several forms, including a "Refusal to Permit Blood Transfusion" form. Cindy went into labor on May 8, 1986, and entered Alpena General Hospital on that date. While she was being admitted, Donald signed another "Refusal to Permit Blood Transfusion" form.

        40

                Cindy gave birth to her twins on the evening of May 8, 1986. Following delivery, Cindy was found to be bleeding from her uterus. Around 11:30 p.m., Dr. Cheryl Parsons was called. She performed a pelvic examination and discovered a great deal of clotting and a fair amount of bleeding. Dr. Parsons [190 MICHAPP 143] then discussed performing a dilation of the cervix and curettage of the uterine lining (D & C). As a result, Dr. Parsons began discussing with plaintiffs their refusals of blood transfusions.

        42

                Following this discussion, Cindy was taken to surgery. In the early hours of May 9, 1986, she was placed under general anesthesia, and Dr. Parsons proceeded to perform a D & C. The bleeding, however, continued. Defendant Taylor, an anesthesiologist, was then called to the hospital to examine Cindy. Cindy's blood pressure had risen significantly. At approximately 1:30 a.m., defendant Taylor observed mottling and cooling of the skin peripherally, premature ventricular activity, oozing of crystalloid material from her eyes, and a fairly rapid and significant fall in blood pressure. These observations prompted defendant Taylor to determine that a blood transfusion was medically necessary to preserve Cindy's life. He ordered the transfusion of packed red blood cells, but before the transfusion was given, Dr. Parsons informed him that Cindy was a Jehovah's Witness. Dr. Parsons testified that defendant responded by saying something like "that may be, but she needs the blood." A blood transfusion was then given.

        44

                Plaintiffs thereafter filed their medical malpractice action, alleging negligence by various defendants, including Taylor, and alleging battery against defendant Taylor.

        46

                Defendant Taylor filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that because Cindy's refusal was not conscious, competent, contemporaneous, and fully informed, defendant did not commit a battery in deciding to infuse blood. The trial court granted this motion and entered an order dismissing plaintiffs' claim against defendant Taylor.

        48

        [190 MICHAPP 144]

        50

        II

        52

                Plaintiffs contend that the trial court erred in granting summary disposition where their refusal of a blood transfusion

        54

        Page 428

        56

                Defendant Taylor, on the other hand, contends that the trial court did not err in granting summary disposition, because plaintiffs did not unequivocally refuse the blood transfusion. He claims that, in the face of a life-threatening emergency, without a fully conscious and contemporaneous refusal, his decision to transfuse blood was appropriate and the court did not err in finding an implicit consent to the procedure authorized by him. Defendant Taylor also contends that the state's interest in preserving life authorized him to override plaintiffs' right to refuse blood transfusions on religious grounds. He claims that, while a patient may knowingly decline treatment, the patient has no right to demand inadequate treatment, and the courts will not require that such be committed.

        59
        III
        61

                Summary disposition based on MCR 2.116(C)(10) may be granted where, except for the amount of damages, there is no genuine issue regarding any [190 MICHAPP 145] material fact and the moving party is entitled to judgment as a matter of law.

        63

                A motion for summary disposition under this subrule tests whether there is factual support for a claim. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989). Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

        66
        A
        68

                A competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Health, --- U.S. ----, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). See anno: Patient's right to refuse treatment allegedly necessary to sustain life, 93 A.L.R.3d 67. Indeed, the whole concept of informed consent to treatment leads to an inference of its converse--informed refusal of treatment. Put another way, a competent adult may choose to give or withhold consent to medical treatment.

        70

                [190 MICHAPP 146] However, the law implies the consent of an unconscious patient to medical procedures needed to preserve the patient's life. Delahunt v. Finton, 244 Mich. 226, 229, 221 N.W. 168 (1928). See alsoYoung v. Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989). If a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Id.; Banks v. Wittenberg, 82 Mich.App. 274, 279, 266 N.W.2d 788 (1978). Consent may be expressed or implied. Young, supra; Banks, supra, p. 280, 266 N.W.2d 788. It has been held that consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent or where the patient seeks treatment or otherwise manifests a willingness to submit to a particular treatment. Young, supra; Banks, supra.

        72

        Page 429

        74

        B

        76

                Here, the trial court determined that Cindy's refusals were made when she was contemplating merely routine elective surgery and not when life-threatening circumstances, were present and concluded that it could not be said that she made the decision to refuse a blood transfusion while in a competent state and while fully aware that death would result from such refusal. The record reflects the unexpected development of a medical emergency requiring blood transfusion to prevent death or serious compromise of the patient's well-being.

        78

                The decision of the trial court is supported by one reached by the Supreme Court of Pennsylvania in In re Estate of Dorone, 517 Pa. 3, 534 A.2d 452 (1987). In Dorone, the patient was a twenty-two-year-old Jehovah's Witness who required a blood transfusion during a cranial operation to [190 MICHAPP 147] relieve an acute subdural hematoma. Without the operation or transfusion, death was imminent. The patient was unconscious, and his parents refused consent to the blood transfusion. The court overruled the parents' refusal, stating:

        80

                Turning to the ultimate decisions the judge rendered, we feel that they were absolutely required under the facts he had before him. Those facts established that medical intervention, which necessarily included blood transfusions, could preserve Mr. Dorone's life. When evidence of this nature is measured against third party speculation as to what an unconscious patient would want there can be no doubt that medical intervention is required. Indeed, in a situation like the present, where there is an emergency calling for an immediate decision, nothing less than a fully conscious contemporaneous decision by the patient will be sufficient to override evidence of medical necessity. [Id., p. 9, 534 A.2d 452.]

        82

                Here, both plaintiffs signed "Refusal to Permit Blood Transfusion" forms. Following Cindy's delivery of twins, Dr. Parsons discussed these refusals with both plaintiffs. Cindy recalled their conversation as follows:

        84

                She--okay. We told her--she said, "I understand that you're one of Jehovah's Witnesses and that you won't take blood," and Don and I both said, "That's correct." And she said, "You mean to tell me if your wife's dying on the table that you're not going to give her blood?" And we said--Don said, "That's--well, I don't want her to have blood, but I don't want her to die. We want the alternative treatment."

        86

        * * * * * *

        88

                She said there would be no problem. It was a routine D & C, there was no problem with the blood.

        90

        * * * * * *

        92

                [190 MICHAPP 148] The idea of a blood transfusion, she made it sound that it wouldn't even be a problem. Blood wouldn't come into the picture. That's how I understood it.

        94

                Donald also testified regarding the conversation as follows:

        96

                At the time of the consent form, she gave it to my wife and had her look it over and read it, and she said--she acknowledged us as being one of Jehovah's Witnesses, and then she said, "Would you accept blood?" And we replied, "No." And then she made the remark, "Even if she was to die, you'd let her die?"

        98

                And at that point, I questioned, I said, "Well, how serious of a, you know, condition was she?" And the reason why we asked that is because, like I say, in different situations like there are Witnesses who have gone to hospitals, you know, if there was some type of real emergency, a lot of times they're shipped out or flown out. Different ones have gone to Ann Arbor and other places.

        100

                So at that time, I was just kind of questioning, well, how serious was it, you know. First of all, you say it's a routine D & C; then you mention that if she was to die, and so that's why I questioned it, and then she reassured us that there was no problem, nothing to it.

        102

                The following colloquy then occurred between defense counsel and Donald:

        104

        Page 430

        106

                Q. So you never answered the question.

        108

                A. Oh, as far as the idea of dying?

        110

                Q. Yes.

        112

                A. I said no. The answer was no.

        114

                Q. Even if she was to die, you said "No blood."

        116

                A. Right.

        118

                Q. What did your wife say to that?

        120

                [190 MICHAPP 149] A. Well, she was right there and that was her feeling also.

        122

                Q. But you didn't have the feeling that that was part of the problem or a possibility? It was kind of an academic discussion, that she might die?

        124

                A. Well, she said it in a joking manner. It wasn't done as a serious matter. Being with a joking manner, that's why I asked her how serious it was and then she just--"Oh, there's no problem."

        126

                Q. Okay. So you weren't really biting the bullet because it didn't seem to be part of the problem that she was going to die or there was a risk of her dying?

        128

                A. At that point, no.

        130

                Dr. Parsons testified to the conversation as follows:

        132

                I recall discussing with her and her husband the fact that they were Jehovah's Witnesses and that she indicated that this was true. And I said, "Is it true that you do not want any blood transfusions?" She said, "No." He looked at me and said, "Do you think it's that bad?" And I said, "Not right now." And I didn't get any further answer from him in terms of whether he felt that if it became that bad he might change his mind. And I left it at that.

        134

                She also described Donald's response as "wishy-washy."

        136

                Following this discussion, Cindy underwent surgery. She was placed under general anesthesia, and Dr. Parsons performed a D & C. Cindy did not regain consciousness again until after the operation and transfusion of blood were performed. Defendant Taylor testified that he was aware, before deciding to infuse blood, that Cindy was a Jehovah's Witness. No attempt was made to bring Cindy to consciousness in order to obtain her approval, and defendant Taylor testified that this [190 MICHAPP 150] option was "foolhardy." No attempt was made to discuss his decision with Donald because defendant saw nothing to be gained from it. He did not believe Donald could give or deny permission for a blood transfusion.

        139
        C
        141

                We agree with the principle in Dorone that it is the patient's fully informed, contemporaneous decision which alone is sufficient to override evidence of medical necessity. The fact that defendant did not obtain the consent of Cindy's husband does not preclude the granting of summary disposition. It is undisputed that Cindy was unconscious when the critical decision regarding the blood transfusion to avoid her death was being made. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed. Thus, a record could not be developed regarding Cindy's refusal which would leave open an issue upon which reasonable minds could differ.

        143

                Our holding in this case is narrow. Without contemporaneous refusal of treatment by a fully informed, competent adult patient, no action lies for battery and summary disposition was proper.

        146
        D
        148

                Because of our resolution of this case, we need not address the issue whether the trial court erred in holding that the state had a valid interest in preventing Cindy's death.

        150

                Affirmed.

      • 4.4.2 Leach v. Shapiro

        1
        13 Ohio App. 3d 393 (1984)
        2
        ESTATE OF LEACH ET AL., APPELLANTS,
        v.
        SHAPIRO ET AL., APPELLEES.
        3
        No. 11238.
        4

        Court of Appeals of Ohio, Summit County.

        5
        Decided May 2, 1984.
        6

        [394] Mr. Robert J. Burns and Mr. David R. Wilson, for appellant.

        7

        Mr. William L. Curtice, for appellants.

        8

        Mr. Mark J. Skakun, for appellees.

        9
        BAIRD, J.
        10

        Edna Marie Leach entered Akron General Medical Center on July 27, 1980, suffering from respiratory distress. Mrs. Leach subsequently suffered a respiratory-cardiac arrest, and though her heartbeat was restored, Mrs. Leach remained in a chronic vegetative state. Mrs. Leach was placed on life support systems to sustain her breathing and circulation. On October 21, 1980, Mrs. Leach's husband, as her guardian, petitioned the Summit County Probate Court for an order to terminate the life support measures. The court issued this order on December 18, 1980. Leach v. Akron General Med. Ctr. (1980), 68 Ohio Misc. 1 [22 O.O.3d 48]. On January 6, 1981, the respirator was disconnected, and Mrs. Leach died.

        11

        On July 9, 1982, plaintiffs filed this action seeking damages for the time Mrs. Leach was on life support systems. Defendants filed a motion in the alternative, to dismiss or for summary judgment. This motion was not supported by affidavits or other evidence. Civ. R. 12(B) provides that a Civ. R. 12(B)(6) motion may be converted to a motion for summary judgment, but requires that both parties be afforded the opportunity to present evidence pertinent under Civ. R. 56. The court did not permit or receive additional evidence, but, instead, treated defendants' motion as one to dismiss for failure to state a claim upon which relief may be granted. The court granted defendants' motion and plaintiffs appeal.

        12
        Assignments of Error
        13

        "1. The trial court erred in basing its judgment on the surmise or beliefs of the court without taking evidence to determine the true facts of the case.

        14

        "2. The trial court erred in determining, as a matter of law that defendants' refusal to terminate the life support system, in the treatment of Edna Marie Leach, was akin to suicide.

        15

        "3. The trial court erred in determining, as a matter of law, that the extreme remedy of introducing and maintaining life support systems during the course of treatment of Edna Marie Leach was in accordance with the rules and ethics governing the medical profession, and the mores of society.

        16

        "4. The trial court erred in determining, as a matter of law, that as the desires of Edna Marie Leach and her family were carried out, defendants' prior actions must be considered right and proper under the circumstances.

        17

        "5. The trial court erred in determining, as a matter of law, that the medical expenses incurred in the treatment of Edna Marie Leach were unavoidable.

        18

        "6. The trial court erred in determining, as a matter of law, that no action may lie against defendants for pain and suffering endured by plaintiffs' decedent during [395] the last 159 days of her life, nor are punitive damages recoverable.

        19

        "7. The trial court erred in determining, as a matter of law, that no genuine issue of material fact was presented in the instant case."

        20

        Plaintiffs' complaint is a seven-page document comprised of forty-five paragraphs arranged in five counts. A court may only grant a Civ. R. 12(B)(6) motion when it appears beyond doubt from the complaint that plaintiff can prove no set of facts which would entitle him to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242 [71 O.O. 2d 223]. Under this standard we must reverse the trial court's decision.

        21

        Plaintiffs' action is generally based upon the notion that defendants acted wrongfully in placing Mrs. Leach on lifesupport systems and in maintaining her thereon contrary to the express wishes of Mrs. Leach and her family. A physician who treats a patient without consent commits a battery, even though the procedure is harmless or beneficial. Lacey v. Laird (1956), 166 Ohio St. 12 [1 O.O. 2d 158]. While the patient's right to refuse treatment is qualified because it may be overborn by competing state interests, we believe that, absent legislation to the contrary, the patient's right to refuse treatment is absolute until the quality of the competing interests is weighed in a court proceeding. We perceive this right as the logical extension of the consent requirement and conclude that a patient may recover for battery if his refusal is ignored.

        22

        Not only must a patient consent to treatment, but the patient's consent must be informed consent. There is no legal defense to battery based on consent if a patient's consent to touching is given without sufficient knowledge and understanding of the nature of the touching. Belcher v. Carter (1967), 13 Ohio App. 2d 113 [42 O.O. 2d 218]. The requirement of informed consent has its roots not only in the patient's right to privacy but also in the nature of the physician-patient relationship. The physician owes his patient a fiduciary duty of good faith and fair dealing which gives rise to certain specific professional obligations. These obligations include not only the duty to exercise due care and skill, but to fully inform the patient of his condition and to obtain the patient's informed consent to the medical treatment. 61 American Jurisprudence 2d (1981) 298, Physicians, Surgeons, Etc., Section 167.

        23

        While consent to a procedure is always required, courts have appreciated that circumstances may render the patient's consent impossible or impracticable to obtain. Where the patient is not competent to consent, an authorized person may consent in the patient's behalf. 42 Ohio Jurisprudence 2d (1960) 643, Physicians and Surgeons, Section 124; and 61 American Jurisprudence 2d (1981) 306, Physicians, Surgeons, Etc., Section 175. In other circumstances the patient's consent, though not expressly given, will be implied. Such circumstances must amount to more, however, than the mere inability of the patient to consent. See Francis v. Brooks (1926), 24 Ohio App. 136. Express consent to treat a specific condition through a surgical procedure may imply consent to all procedures necessary to achieve that end, Harrison v. Reed (Superior Court 1916), 21 Ohio N.P. (N.S.) 206, but not to procedures clearly not contemplated within the original consent, Ober v. Hollinger (App. 1933), 14 Ohio Law Abs. 514. The patient's consent will also be implied where the patient is unable to consent and there exists some emergency requiring immediate action to preserve the life or health of the patient. 42 Ohio Jurisprudence 2d (1960) 643, 644, Physicians and Surgeons, Section 124. The existence of consent, either express or implied, is a question of fact. Wells v. Van Nort (1919), 100 Ohio St. 101.

        24

        Plaintiffs allege that Mrs. Leach suffered a cardio-pulmonary arrest on July [396] 27, 1980, was resuscitated, and after resuscitation remained in a chronic vegetative condition. Plaintiffs do not allege that the resuscitation efforts were improper or constituted a battery. Instead, the complaint alleges that Mrs. Leach was placed on life support systems on August 1, 1980, without the consent of Mrs. Leach or her family. From the complaint it would appear that August 1, 1980 was the day Mrs. Leach was moved to a private room from intensive care. If the facts as developed prove that Mrs. Leach was in fact placed on the machines as a part of the resuscitation efforts following her cardiac arrest, we presume that plaintiffs would consider such treatment proper since they do not question the propriety of the resuscitation efforts in their complaint. If the life support systems were first introduced as part of a properly authorized treatment, we feel that the trial court's ultimate conclusion was correct — barring significant improvement, and as long as Mrs. Leach was unconscious, these systems could only be disconnected by court order. In Ohio, at this time, the court system provides the only mechanism which can protect the interest of the doctor, the hospital, the patient, the family and the state, which can objectively weigh the competing interests in an emotionally charged situation, and which can insulate the participants from civil and criminal liability. Until such time as the legislature provides some more efficient means of protecting the rights of patients in Mrs. Leach's condition, we join those courts that require judicial authority for the termination of life-prolonging treatment of an incompetent patient. Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 370 N.E. 2d 417; In re Eichner (1980), 73 A.D. 2d 431, 426 N.Y. Supp. 2d 517, as modified by In re Storar (1981), 52 N.Y. 2d 363, 438 N.Y.Supp. 2d 266, certiorari denied (1981), 454 U.S. 858. We also conclude that where the initial use of support systems was properly authorized, plaintiffs may not recover for ordinary and necessary medical expenses incurred during the time reasonably required to secure court authority for the termination of those support systems.

        25

        Plaintiffs allege, however, that Mrs. Leach was first placed on life support systems on August 1, 1980, when she was in a chronic vegetative state, and that this treatment was performed without consent of Mrs. Leach or her family. Plaintiffs allege that Mrs. Leach expressly advised defendants that she did not wish to be kept alive by machines. Absent an emergency defendants had an obligation to secure consent for Mrs. Leach's treatment from one authorized to act in her behalf, since Mrs. Leach was not capable of consenting, or by court order. If an emergency existed on August 1, 1980, when plaintiffs allege the life support systems were first employed, such an emergency would ordinarily give rise to an implied consent, but plaintiffs allege Mrs. Leach would have expressly refused to consent to such procedures in those circumstances. This court has held that where the parties contract expressly with regard to a particular procedure, an implied agreement cannot thereafter arise when the express agreement directly controverts the inclusion of any such implication. Max v. Eaton (App. 1933), 14 Ohio Law Abs. 516.

        26

        We recognize that doctors must be free to exercise their best medical judgment in treating a life-threatening emergency. 61 American Jurisprudence 2d (1981) 314, Physicians, Surgeons, Etc., Section 185. Carried to its extreme, however, the doctrine of implied consent could effectively nullify those privacy rights recognized in In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647, certiorari denied sub nom. Garger v. New Jersey (1976), 429 U.S. 922; Eichner, supra; Saikewicz, supra; and Leach, supra, since a physician could circumvent the express wishes of a terminal patient by waiting to act until the patient was comatose and [397] critical. On the other hand, the prospect of refusing to act in an emergency because the patient at some time voiced vague wishes not to be kept alive on machines is equally unacceptable. We conclude that a patient has the right to refuse treatment, and that this refusal may not be overcome by the doctrine of implied consent. Before this refusal can controvert the implied consent of a medical emergency, however, it must satisfy the same standards of knowledge and understanding required for informed consent. A terminally ill patient fully advised of an impending crisis might then be able to refuse treatments which would only prolong suffering, while a patient afflicted with a disease which would be terminal in several years and who had generally expressed the desire to die peacefully would not be denied treatment for injuries sustained in an automobile crash. Both doctor and patient would then be protected from statements not made in contemplation of the specific circumstances and the specific medical treatment required. General statements by the patient could still be considered by a court, of course, in determining the wishes of a patient in a chronic vegetative condition.

        27

        The merits of plaintiffs' claims for relief depend upon the facts that are developed in this case. The existence and nature of any consent, the existence and nature of any refusal of treatment, the nature of the treatments before August 1, 1980, Mrs. Leach's condition on August 1, 1980, and the nature of the treatment on and after August 1, 1980, are all factual questions the answer to which determine whether plaintiffs are entitled to relief. Accordingly, defendants' motion to dismiss Count 1 for failure to state a claim should not have been granted.

        28

        Plaintiffs also allege that once Mrs. Leach was placed on life-support systems defendants failed to inform them of Mrs. Leach's true condition for a period of two months, failed to apprise the family of her course of treatments for that two-month period, and during the two-month period administered experimental drugs to Mrs. Leach without her family's consent for the purpose of observing the effects of these drugs on a person in Mrs. Leach's condition. We have already discussed the consent requirements. We have also discussed that under some facts ordinary and necessary medical expenses which plaintiff has actually paid for the treatment and care of the deceased may not be recoverable by plaintiff, but that would not preclude plaintiffs recovery for extraordinary or unnecessary medical expenses. These allegations raise questions of fact on both issues, and dismissal of these claims was improper.

        29

        Plaintiffs also claim that they were not informed of Mrs. Leach's condition or prognosis for a period of two months. Failure to disclose material information concerning a patient's condition may be actionable not only as malpractice, but under the appropriate circumstances may be an actionable misrepresentation as well. Annotation (1973), 49 A.L.R. 3d 501. As we have already discussed, a fiduciary relationship exists between the physician and patient. When the physician has knowledge of a fact concerning the patient's physical condition which is material to the patient, this fiduciary relationship may render the physician's silence fraudulent. Nixdorf v. Hicken (Utah 1980), 612 P. 2d 348; Hudson v. Moore (1940), 239 Ala. 130, 194 So. 147; Nelson v. Gaunt (1981), 125 Cal App. 3d 623, 178 Cal Rptr. 167; and Adams v. Ison (Ky. 1952), 249 S.W. 2d 791. The only Ohio case to consider the question found that an independent action in fraud had not been proved, and concluded that an action for mere misrepresentation required malpractice to be actionable. Netzel v. Todd (1926), 24 Ohio App. 219. The disparity in expertise between the physician and patient has increased dramatically since the Netzel case was decided, due to staggering technological and medical [398] advances. Because the importance of adequate disclosure increases as the patient is placed at a greater informational disadvantage, we join those courts holding that a physician's non-disclosure may give rise to an action in fraud independent of malpractice. Because the law has determined that a proper person may supply the consent for an incompetent person, 42 Ohio Jurisprudence 2d (1960) 643, Physicians and Surgeons, Section 124, and since that consent must be informed to be effective and to protect the patient, Belcher v. Carter, supra (13 Ohio App. 2d 113 [42 O.O. 2d 218]), we also conclude that when a patient becomes incompetent the physician's fiduciary obligations of full disclosure flow to the person acting in the patient's behalf.

        30

        From plaintiffs' allegations we cannot conclude beyond doubt that they can prove no set of facts which would entitle them to relief, nor can we conclude that their averments do not comply with Civ. R. 9(B). Haddon View Investment Co. v. Coopers & Lybrand (1982), 70 Ohio St. 2d 154 [24 O.O. 3d 268]. We conclude that the trial court erred in granting a dismissal as to this claim.

        31

        Plaintiffs seek to recover damages for defendants' alleged conduct which invaded Mrs. Leach's right to privacy. The right to privacy is a right personal to the individual asserting it. Martin v. F.I.Y. Theatre Co. (C.P. 1938), 26 Ohio Law Abs. 67. This right lapses with the death of the person who enjoys it and the decedent's heirs may not recover for the invasion. Young v. That Was The Week That Was (C.A. 6, 1970), 423 F. 2d 265; 35 Ohio Jurisprudence 3d (1982) 594, Defamation and Privacy, Section 160. Accordingly, the dismissal of this cause of action was proper.

        32

        Plaintiffs also seek to recover for pain, suffering, and mental anguish for Mrs. Leach and for themselves. Plaintiffs allege that defendants administered treatments without proper consent and allege that some of those treatments were experimental. To the extent that plaintiffs can prove that this conduct was wrongful and caused pain and suffering beyond that which Mrs. Leach would have normally suffered from her condition, they state a claim for relief. 42 Ohio Jurisprudence 2d (1960) 661, Physicians and Surgeons, Section 141.

        33

        The trial court also concluded that plaintiffs had no cause of action for the mental anguish they suffered as a result of the alleged wrongs committed against Mrs. Leach. In reaching its conclusion, the court followed the law in Ohio at that time. Since then, the Supreme Court has significantly expanded the scope of recovery in this area. Paugh v. Hanks (1983), 6 Ohio St. 3d 72. In light of that decision, we feel that the trial court's ruling is no longer a correct statement of the law in Ohio.

        34

        Plaintiffs also claim defendants caused an improper delay in effectuating the probate court order of December 18, 1980. The trial court concluded that a delay of nineteen days, in light of the conditions imposed by the probate court, was not unreasonable. This requires a determination of facts which were not properly before the court, and dismissal was improper.

        35

        Finally, plaintiffs seek to recover punitive damages. Because the trial court had found no other claims upon which relief could be granted, it concluded that there was no wrongdoing upon which to base an award of punitive damages. In light of our disposition of the foregoing issues, we conclude that this claim must be reinstated as well.

        36

        The decision of the trial court is reversed and the cause is remanded for further proceedings.

        37

        Judgment reversed and cause remanded.

        38

        MAHONEY, P.J., and BAYER, J., concur.

        39

        [399] BAYER, J., of the Court of Common Pleas of Summit County, sitting by assignment in the Ninth Appellate District.

    • 4.5 5. Pregnancy

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