The issue raised by this appeal is one of life or death, or, more precisely, life without consciousness as opposed to death with dignity: Under what circumstances may artificial life sustaining procedures be terminated in the case of a comatose, terminally ill patient.
On April 10, 1981, Francis B. Landy was taken to John F. Kennedy Memorial Hospital.
Hospital personnel, uncertain as to whether they could rely on the "living" will without incurring civil and criminal liability, filed an action for declaratory relief in the circuit court. That petition was accorded expedited treatment by the court, but before a hearing could be held the patient died. Thereupon the widow and the treating physician, formerly respondents, joined in the petition for declaratory relief, leaving the State Attorney as the sole remaining respondent.
The petitioner urged in the trial court and argued here that the matter has not been rendered moot by the intervening death of the patient because of the frequency with which hospital personnel and physicians are requested to act under similar circumstances. Counsel cited as an example that, at the time of oral argument, there were forty comatose and terminal patients in John F. Kennedy Memorial Hospital. It is suggested that a justiciable issue is therefore presented. The trial court correctly acquiesced in that suggestion.
This is a case of first impression in Florida and is the logical result of the supreme court's affirmance of this court's decision in Satz v. Perlmutter, 362 So.2d 160 (Fla. 4th DCA 1978), aff'd, 379 So.2d 359 (Fla. 1980). In Perlmutter, the court upheld the right of a competent adult who is suffering from a terminal illness to refuse or discontinue extraordinary medical treatment based on the constitutional right of privacy. This case seeks to determine the parameters under which that right is available to, and can be exercised by, incompetent adults (i.e., those in comas).
Every court that has considered a similar situation has concluded that a terminally ill comatose patient, like his fully conscious and competent counterpart, has a right to refuse medical treatment. Similarly, all agree that there must exist a corresponding capability
Eichner, 426 N.Y.S.2d at 544-545. However, the courts have not acted uniformly in determining the manner by which the right may be exercised. Some suggested procedures include recognition of a living will, e.g., Note, In re Living Will, 5 Nova L.J. 445 (1981), the proxy judgment and instructions of a guardian, e.g., In re Quinlan, 70 N.J. 10, 355 A.2d 647, the consensus of close relatives, but see In re Spring, 380 Mass. 629, 405 N.E.2d 115 (Mass. 1980), the certification of attending physicians that the comatose party is terminally and irreversibly ill and that the prospects of regaining cognitive brain function are extremely remote, see Commonwealth v. Golston, 373 Mass. 249, 366 N.E.2d 744 (Mass. 1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978), confirmation by a hospital ethics committee of the terminal and irreversible prognosis prior to termination, e.g., Eichner, 73 A.D.2d 431, 426 N.Y.S.2d 517, a judicial hearing, e.g., Leach, 68 Ohio Misc. 1, 426 N.E.2d 809, or some combination of these procedures.
In Quinlan, the court stated
355 A.2d at 664.
Thus, the New Jersey Supreme Court held that
Quinlan, 355 A.2d at 671. Under this procedure, no court hearing is required prior to termination of the life support systems.
In Leach, the guardian of an individual who was terminally ill and in a permanent vegetative state applied for a court order for the removal of a respirator. The probate court granted the motion upon the following findings:
426 N.E.2d at 816.
The Massachusetts Supreme Judicial Court has indicated that once a court order is sought, the ultimate decision-making responsibility to terminate life support apparatus rests with the probate court. Spring, 405 N.E.2d at 115. In that case the court specifically considered
Spring, 405 N.E.2d at 120-21. Nevertheless, the court concluded that action taken without judicial approval might be the subject of criminal or civil liability. Spring, 405 N.E.2d at 121.
426 N.Y.S.2d at 550.
Having reviewed the manner in which other jurisdictions have resolved this problem, it is now appropriate to analyze the lower court's final judgment. The court rejected a Quinlan like result because of the complex and diverse issues peculiar to each case. The procedure established in the judgment requiring an expedited judicial hearing prior to termination of mechanical medical systems accords with the decisions of the Ohio court in Leach and the New York Court in Eichner while setting a stricter procedure than mandated by the New Jersey court in Quinlan and the Massachusetts court in Spring.
Quinlan's principal objection to routinely requiring prior court approval for a decision to withhold treatment is that it would be impossibly cumbersome. Without an expedited procedure, the litigation process may become considerably protracted until the issue becomes moot by virtue of the death of the comatose patient. See Spring, Eichner, and the instant case. This will not ordinarily result under the procedure proposed in Landy (the case at bar) by the trial judge, as it calls for expedited review. Moreover, the court found there was little or no competition among patients for access to the life support machines. In pertinent part, the final judgment provides:
The main purpose of appellants' appeal is to suggest that court approval should not be a prerequisite to compliance with the living will of a comatose, terminally ill individual and that other safeguards will serve as well. The sum and substance of appellants' analysis is set out in the initial brief:
We do not agree that the distinction between the Perlmutter circumstance and the Landy circumstance "was not material."
In Perlmutter the terminally ill patient was conscious and mentally competent although in excruciating pain. He was seventy-three years of age. Both Perlmutter and his family sought to terminate the life support systems. The issue was whether an individual's constitutional right to privacy, a concomitant element of which is said to be the right to die with dignity, must be subordinated to an overriding state interest in life. As we have previously noted, this court and the Florida Supreme Court determined that, under the circumstances of that case, the individual's constitutional rights were paramount.
In the context of a request to be permitted to die with dignity, the state's interests, as expressed in Perlmutter and the other cases, are: (1) the interest in the preservation of life, (2) the need to protect innocent third parties, (3) the duty to prevent suicide,
There are significant distinctions between Perlmutter and Landy. In Perlmutter there was a present expressed intent by a mentally competent individual to be allowed to die with dignity. The individual himself was the direct beneficiary of the request and the benefit was cessation of pain and suffering. The financial savings to his estate and cessation of the emotional trauma inflicted upon his family by the necessity of watching a loved one suffer, while of immense importance to those involved, were distinctly ancillary benefits.
In Landy the request is presented in the form of a living will executed some years before the event, sought to be presently enforced by a family member-guardian-interested person on behalf of the comatose individual. If we may assume that in the case of a comatose individual there is no pain and suffering (philosophical considerations aside), then it would seem to follow that the direct beneficiary of the request is the family of the patient and that the benefits are financial savings and cessation of the emotional drain occasioned by awaiting the medico-legal death of a loved one.
This distinction between Perlmutter and Landy, among others, requires a change in focus from safeguarding the interests of the state to protecting the interests of the now terminally ill but comatose individual. One need not go so far back in history as Cain and Abel to recognize that the interests of various family members are not always synonymous nor even harmonious. The newspaper is a daily reminder that murderers are often related to their victims. While this consideration is moot in Landy because the patient is already deceased, and while it may constitute only a remote danger in future cases, it is a factor which must be taken into account.
With the foregoing considerations in mind, we first repeat what was said in Perlmutter:
Perlmutter, 379 So.2d at 360.
If there was any doubt, at the time of Perlmutter, that Florida citizens enjoyed an
We are duty bound to implement that constitutional right and the concomitant right to die with dignity, under circumstances that render it either impossible or unwise to rely on Florida's "Recognition of brain death under certain circumstances" statute, Section 382.085, Florida Statutes (1981), and thus we affirm the final judgment.
Our holding necessarily rejects appellants' position that court approval should not be necessary. In our judgment an application by the court appointed guardian of a comatose and terminally ill individual requires review by a court of competent jurisdiction before life sustaining procedures may be suspended. Judicial proceedings are required under Chapter 744, Florida Statutes (1981), before an individual's property may be disposed of by a guardian or others. Since life itself is of infinitely greater value to an individual than his property, it seems only reasonable that at least equal safeguards be employed before life and death decisions are placed in the hands of others.
One of the primary tasks confronting a court upon an application for termination is to apply the so-called "substituted judgment rule" to determine from the known facts and circumstances what the individual would want done if he were conscious and competent. See In re: Guardianship of Bohac, 380 So.2d 550 (Fla. 2d DCA 1980). Other jurisdictions confronted with this issue have used a variety of methods to determine intent. The issue appears to be one of first impression, in this factual setting, in Florida. See, e.g., Quinlan, 70 N.J. 10, 355 A.2d 647; Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334 (Del. 1980); Spring, 405 N.E.2d 115; Leach, 68 Ohio Misc. 1, 426 N.E.2d 809.
Our holding is limited to the case of a comatose patient in a hospital, whose condition has been certified by two physicians as being terminal, whose interests are protected by a court appointed guardian and where the patient at some earlier point has executed a living will or expressed or evidenced a like intention. Terminal condition means an incurable physical state caused by injury, disease, or illness which, regardless of the application of "life sustaining procedures," would produce death within a reasonable degree of medical probability, and where the application of life sustaining procedures serves only or primarily to postpone the moment of the patient's medico-legal death.
Certification means that a hospital patient has been diagnosed and certified in writing to be in terminal condition and where the prospects of regaining cognitive brain function are extremely remote. The diagnosis must be made and signed by the patient's attending physician and a consulting physician chosen by the patient before becoming comatose, both of whom have examined the patient. If the patient did not choose a consulting physician, the attending physician shall do so.
Life sustaining procedures are medical procedures which utilize mechanical or other artificial means to sustain, restore, or supplant a vital function, which serve only or primarily to prolong the moment of death, and where, in the judgment of the attending and consulting physicians, as reflected in the patient's medical records, death is imminent if such procedures are not utilized.
A spouse or another family member or, in the absence of either, any interested person or entity may apply for the appointment of a guardian of the person. Reasonable notice of the application for appointment shall be given to the spouse, to the parents, to brothers and sisters of the patient, to any adult children of the patient not joining in the petition and to the state's attorney. Such notice is also required upon the application to terminate life sustaining procedures. The state's attorney shall be a necessary party.
In summary, we hold that a duly appointed guardian of a comatose patient in terminal condition, and where that patient has previously evidenced an intention not to have life sustaining procedures utilized may, acting on the patient's behalf, apply to a court of competent jurisdiction (the probate division of the circuit court) for authority to instruct any health care provider and attending physician to remove, or not to furnish, "life sustaining procedures." Any such application shall, upon appropriate request, receive expedited treatment. The standard of proof in any such proceeding shall be clear and convincing evidence. The guardian of the person of the patient, the hospital administrator, the chief of the medical staff of the hospital and attending physicians, abiding by a court order obtained in this manner shall, after determining that the patient is suffering from a terminal condition, and after proper documentation in the patient's records, remove the patient from, or not connect the patient to, life sustaining procedures. Any person acting in good faith shall not be liable civilly or criminally for action taken in reliance on such an order.
We therefore affirm the final judgment in all respects. We certify the following question to the Supreme Court of Florida as one of great public interest:
AFFIRMED and QUESTION CERTIFIED.
LETTS, C.J., and WALDEN, J., concur.