# Mack v. Mack > Court of Appeals of Maryland · February 2, 1993 · 329 Md. 188 URL: https://www.frixlaw.com/law-library/cases/7918243 ## Case - **Full name:** Deanna MACK v. Ronald E. MACK - **Court:** Court of Appeals of Maryland - **Decided:** February 2, 1993 - **Citations:** 329 Md. 188; 618 A.2d 744; 1993 Md. LEXIS 11 - **Precedential status:** Published - **Opinion:** Dissent by McAuliffe - **Judges:** Chasanow, McAuliffe, Rodowsky - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7918243 ## How later opinions describe it (automated extraction) - 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 lif… - holding that, in determinations of whether to terminate such life support, a best interests standard alone would not adequately protect the lives of those in persistent vegetative states whose wishes regarding the termination of hydration and ventilation is unknown ## Opinion text McAULIFFE, Judge, dissenting. I agree with the holdings of the Court in Parts I, II, III, and V of the opinion, although not with all of the language employed. I dissent because I disagree with Part IV, and with the result. The Court and the trial judge pay lip service to the concept of “substituted judgment,” but then refuse to apply it in any meaningful way. The Court correctly states that “[t]o protect the right [of self-determination] for incompetent persons, and to permit its exercise, courts apply a rule of ‘substituted judgment.’ ” Court’s opinion at 214. The Court also correctly notes that substituted judgment does not mean simply substituting the judgment of the guardian for that of the ward. Id. The Court errs, however, in defining the inquiry of substituted judgment to be “whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald’s decision would be under the present circumstances.” Id. at 215. That inquiry focuses upon prior statements made by the ward. The substituted judgment approach comes into play when the ward has made no prior statements bearing on the issue, or the statements attributed to the ward do not produce a clear and convincing answer. The substituted judgment approach that I would apply in this case has been described as “intended to ensure that the surrogate decisionmaker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent.” Matter of Jobes, 108 N.J. 394 , 529 A.2d 434, 444 (1987). See also Matter of Conroy, 98 N.J. 321 , 486 A.2d 1209, 1229 (1985); In re Guardianship of Browning, 568 So.2d 4, 13 (Fla.1990). The New Jersey Supreme Court explained further: Under the substituted judgment doctrine, where an incompetent’s wishes are not clearly expressed, a surrogate decisionmaker considers the patient’s personal value system for guidance. The surrogate considers the patient’s prior statements about and reactions to medical issues, *224 and all the facets of the patient’s personality that the surrogate is familiar with—with, of course, particular reference to his or her relevant philosophical, theological, and ethical values—in order to extrapolate what course of medical treatment the patient would choose. Matter of Jobes, supra, 529 A.2d at 444 (footnote and citation omitted). Semantics may be a part of the problem here. “Substituted judgment” is not a particularly apt term—the very result we wish to avoid is the substitution of someone else’s judgment for that of the ward. Rather, the aim is to determine, by reference to all that may be known about the ward, what decision he or she would make if presently competent and possessed of complete information concerning all relevant factors. “Constructed individual judgment” comes to mind as a possibly more appropriate term, but I suspect that combination of words has its own limitations. Substituted judgment should not be viewed as something separate and distinct from the inquiries concerning the ward’s prior statements or formal written declarations evidencing intent. The question in cases such as this is what the ward would wish done under the present circumstances. An explicit written direction, validly made when competent, and not otherwise suspect, may furnish the complete answer. Absent such a document, previous oral declarations may be sufficient to afford clear and convincing evidence of the ward’s intentions. When prior statements alone do not provide the requisite evidence of intent, those seeking to ascertain the wishes of the ward should add to the relevant considerations all that is known about the ward and his condition and prognosis, and determine from that full body of information whether the intent of the ward may be ascertained with the necessary level of confidence. Those who seek to ascertain the wishes of the ward will not necessarily be judges. Decisions of this kind are often made by the immediate members of the patient’s family, in conference with attending physicians who act in accordance with the ethical standards of their profession and, where *225 appropriate, in accordance with the standards established by an involved hospital and its designated committee. I agree with the Attorney General’s warning that “[t]he Court should be especially cautious about casting a pall of legal uncertainty over established practices in the clinical setting, where doctors and patients’ families together often make these excruciatingly difficult decisions about life-sustaining medical treatment.” Brief of State of Maryland as Amicus Curiae at 15. In the instant case, however, where family members do not agree, and when the question is presented as the appropriate decision to be made by a court-appointed guardian, court intervention is clearly required. See Maryland Code (1974, 1991 Repl.Vol.) § 13-708(c) of the Estates and Trusts Article. A trial judge’s inquiry when applying the substituted judgment approach is necessarily broad in scope. As the New Jersey Supreme Court pointed out in Matter of Conroy, supra, 486 A.2d at 1230 , “all evidence tending to demonstrate a person’s intent with respect to medical treatment should properly be considered____” In the words of the Attorney General of Maryland, “[t]he task is like assembling a mosaic from the tesserae of the person’s life.” State’s Brief at 19. Factors to be considered include, but are not limited to: evidence of the ward’s views about life-sustaining medical treatment, in light of the ward’s diagnosis and prognosis; the ward’s reaction to medical treatment of others; the ward’s religious beliefs and personal moral values; the ward’s attitudes concerning doctors, hospitals, and nursing homes and any prior experiences with the health care system; and, most broadly, the ward’s value system. The question we thereby attempt to answer may be stated in this hypothetical form: If Ronald Mack, complete with his personality, predilections, philosophies, beliefs, and values were given competency for a day, and fully informed concerning what had transpired, the condition and environment to which he would shortly and permanently return, the beliefs and desires of his family members, and the prognosis in his case, what decision would he make *226 concerning the discontinuance of artificially administered nutrition and hydration? After studying the trial judge’s opinion in this case, I am not at all certain that he considered all the factors relevant to a substituted judgment analysis. Perhaps of greater concern to me is the Court’s opinion, which affirms the trial judge by not requiring the inquiry which I believe is inherent in the substituted judgment approach, and which should be required here. According to the well-documented findings of the trial judge, Ronald Mack exists in a persistent vegetative state. He has been in that state for nine years and he will never recover. He is “alive” in the legal sense, because his brain stem is intact and permits vegetative functions. He exists only because of “the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times....” Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 270 , 110 S.Ct. 2841, 2847 , 111 L.Ed.2d 224 (1990). He is permanently and irreversibly unconscious. He cannot eat, drink, or cough. He has no cognitive ability—he cannot see, hear, speak, touch, or think. He has no feeling or sensation of pain or pleasure. He is incapable of experiencing joy, love, hate, or emotion of any kind. He is emaciated, his hands are clenched, and his limbs are bent and rigid. He has a tracheostomy to permit suctioning of lung secretions, and a surgically implanted gastrostomy tube to permit introduction of nutrients directly into the stomach. He has no control of bladder or bowels. He suffers recurrent seizures and skin rashes. He has heightened physical reflexes, without awareness, and on one occasion nearly bit off his bottom lip. With the quality nursing care that is currently being given Ronald by the Veteran’s Administration, life in this form may continue for 30 to 40 years. If the gastrostomy tube is removed and no other artificial feeding is initiated, death will occur, without appreciation of pain or discomfort, in seven to fourteen days. *227 Ronald’s condition is permanent and irreversible. No one has ever recovered after having been in a persistent vegetative state for at least two years. See Cruzan, supra, 497 U.S. at 309, n. 8 , 110 S.Ct. at 2868, n. 8 (Brennan, J., dissenting) (citing Snyder, Cranford, Rubens, Bundlie, & Rockswold, Delayed Recovery from Postanoxic Persistent Vegetative State, 14 Annals Neurol. 156 (1983)). There is no reasonable hope of a cure or remission to be brought about by anticipated advances in medical science during Ronald’s life expectancy. Given these facts alone, I believe most reasonable persons would elect to terminate this existence. As Justice Scalia noted in his concurring opinion in Cruzan , society is faced with “the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it.” 1 497 U.S. at 292 , 110 *228 S.Ct. at 2859 . In the absence of evidence to the contrary, one may certainly infer that Ronald would share that view. There is little, if any, evidence that I see in the record to suggest that he would not. When that common sense consideration is added to the mix of relevant factors, the usual result will be a determination in favor of withdrawing artificial nutrition. If, however, the evidence shows that the ward harbored religious, philosophical, or other beliefs in favor of the preservation of “life” at all costs, no matter how barren and hopeless, the result would be different. And, because the ward, if competent, would surely consider the desires and feelings of his family, those factors would have to be considered, and might produce a contrary result.. Each individual is different. Careful and painstaking consideration must be given to the relevant facts of the ward’s life, personality, and condition before any attempt is made to determine what the ward would have decided in those circumstances. I wish to emphasize, however, my strong belief that it is not only permissible, but indeed necessary, to attribute to the ward the inclination or desire of an ordinary, prudent person under the same circumstances, unless and until there is evidence that he or she would not have shared those views, and to give that factor the heavy weight it deserves in a case such as this. As I read the Court’s opinion, a trial judge’s inquiry is essentially limited to an attempt to determine the intent the ward may have formed when competent. 2 Thus, even if *229 those members of Ronald’s family who now object to the withholding of artificially administered nutrition and hydration had instead joined with the wife in requesting court approval of that action, the trial judge would have been powerless to grant it because of his inability to find clear and convincing evidence of Ronald’s prior intent. I strongly disagree. I would vacate the judgment and remand to the trial court for further proceedings employing the substituted judgment approach. MURPHY, C.J., joins in this opinion. . Similarly, Dr. Timothy James Keay, Amicus Curiae, states that "advances in medical technology are now capable of sustaining life functions well beyond any purposeful or desired outcome.” Brief of Timothy James Keay as Amicus Curiae at 14. Dr. Keay is a medical doctor, and holds a Master of Arts in Theology (Ethics). He is currently Course Master in the required course in medical ethics at the University of Maryland School of Medicine and is Co-Director of the Biomedical Ethics Center of the University of Maryland at Baltimore. He is of the opinion that discontinuance of nutrition and hydration via conduits to a patient who is permanently unconscious is permissible and ethical under certain conditions. In support of his belief, Dr. Keay includes the following quotation from the textbook Clinical Ethics, which he states has been used for the mandatory course in medical ethics at the University of Maryland School of Medicine for the last four years: (1) We propose that the state of an irreversible loss of human cognitive and communicative function implies that a ‘person’ no longer exists in any significant sense of the term. This individual is no longer aware of self in relation to surroundings and never will be again. In our terms life has fallen irretrievably below the threshold considered minimal. (2) As a result, no goals of medicine other than support of organic life are being or will be accomplished. We do not believe this goal, in and of itself, is an independent and overriding goal of medicine. (3) Furthermore, it is difficult to know what ‘benefit’ might mean when the patient now, and never will, be able to appreciate what is being done for him or her. (4) No preferences of the patient are expressed or known. The conjunction of these four factors justifies, in our judgment, a decision *228 not to continue medical intervention—that is, physicians have no ethical obligation to continue treatment. Since it is the duty of physicians to benefit their patients, in the absence of benefit, there is no duty to treat. The same argument does not, in and of itself, justify active euthanasia. Jonsen, Siegler, & Winslade, Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine, 106-07 (2d ed. 1986). . At times, the Court seems to embrace the concept, with which I agree, of requiring a trial judge to consider the broad spectrum of values, beliefs, opinions, experiences, attitudes, personality, and lifestyle of the ward in reaching its decision. See Court’s opinion at 215-217 quoting with approval Matter of Jobes, 108 N.J. 394 , 529 A.2d 434, *229 445 (1987), In re Estate of Longeway, 133 Ill.2d 33 , 549 N.E.2d 292, 300 (1989), and Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417 , 497 N.E.2d 626, 631-32 (1986). I would like to believe that the Court thereby accepts the true concept of substituted judgment, and would be willing to instruct trial judges that if the patient has not made previous statements concerning his or her desires with respect to the preservation of life under these or similar circumstances, or if the patient’s previous statements concerning this issue are inconclusive as to intent, the trial judge can and should consider all aspects of the patient’s life, values, etc., including what, if anything, he or she may have previously said concerning the subject, together with all that is known about the patient’s condition and prognosis, and thereby attempt to determine what the patient, if now competent for a day and fully informed of all relevant circumstances, would decide. The Court’s focus, however, remains on whether there is sufficient evidence that the patient had made a decision while competent. As much as I would like to, I cannot escape the import of the Court’s language at 215: “Accordingly, the inquiry focuses on whether Ronald, while competent, sufficiently evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald’s decision would be under the present circumstances.” This is not the substituted judgment test as I understand it, or as I would apply it in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7918243. Public record. Not legal advice.