concluding there were “no compelling state interests opposing the removal of life sustaining mechanisms from [a patient in a chronic vegetative state] that outweighed her right to refuse such treatment”
How later courts described this case
- concluding there were “no compelling state interests opposing the removal of life sustaining mechanisms from [a patient in a chronic vegetative state] that outweighed her right to refuse such treatment”
- holding there were “no compelling state interests opposing the removal of life sustaining mechanisms from [a patient in a chronic vegetative state] that outweighed her right to refuse such treatment”
- criticizing the Washington Supreme Court’s willingness to accept the uncontroverted prognosis that a patient who had been comatose for only twenty-five days was in a persistent vegetative state in light of the fact that “some physicians have testified in reported cases that a four-to six-month comatose period is used to determine whether there is any improvement in the incompetent, to reach their opinion in testifying as to whether the incompetent would recover to a cognitive or sapient existence”
- observing that the State did not have an interest in protecting third parties where the patient lacked children and her immediate family members supported the decision to withdraw life support
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by In Re the Guardianship of Hamlin, 102 Wash. 2d 810 (1984)
” Lead op. at 408 (citing In re Welfare of Colyer, 99 Wn.2d 114, 123, 660 P.2d 738 (1983), overruled in part by In re Guardianship of Hamlin, 102 Wn.2d 810, 689 P.2d 1372 (1984)).
Limited in part by John F. Kennedy Hosp. v. Bludworth, 452 So. 2d 921 (1984)
We agree with the analyses of Quinlan, Coyler, and Barry except that we reject that part of Quinlan that requires the concurrence by a hospital "ethics committee," and we reject that part of Coyler that requires the appointment of a guardian in all such cases.
The opinion
Dore, J.
(dissenting) — I would have remanded this matter to the ethics committee of the hospital for its review. In the absence of an ethics committee, I would have suggested the employment of a committee, its composition and procedural operation discussed more fully below. In any event, I would have deferred any action of the committee for a 120-day period following the patient becoming comatose.
I concede the majority had jurisdiction to grant this petition on the basis of the constitutional right of privacy, cf. Griswold v. Connecticut, 381 U.S. 479 , 14 L. Ed. 2d 510 , 85 S. Ct. 1678 (1965); In re Quinlan, 70 N.J. 10 , 355 A.2d 647 , cert. denied, 429 U.S. 922 , 50 L. Ed. 2d 289 , 97 S. Ct. 319 (1976). I believe, however, it erred in failing to require *140 an appreciable amount of time to lapse between the comatose condition of the incompetent and the removal of the life supporting mechanism. In the subject case, only 25 days separated the time of the accident on March 8, 1982, and the entry of this court's order dissolving the injunction. Only 16 days elapsed between the time of the commencement of Colyer's comatose condition and the testimony of the two physicians upon which this court based its decision. In my opinion, 16 or 25 days is not an acceptable time period.
The issue here is whether Colyer, within the bounds of reasonable medical certainty or probabilities, would have recovered brain functions. Some physicians have testified in reported cases that a 4- to 6-month comatose period is used to determine whether there is any improvement in the incompetent, to reach their opinion in testifying as to whether the incompetent would recover a cognitive or sapient existence. Severns v. Wilmington Med. Ctr., Inc., 421 A.2d 1334 (Del. 1980).
I
I believe it would be helpful to better understand this case and subject matter to review some of the medical and lay testimony.
One of Colyer's treating physicians, Dr. Roland Tre-nouth, a cardiac specialist, saw her daily from March 8 to March 24 at St. Luke’s Hospital. On March 24, 16 days after his initial examination, he testified:
A. I have seen no improvement in the patient over the essentially two weeks or 15 days that the patient has been in the hospital. There have been no signs of neurological improvement. The patient has shown no signs of waking up or lightening of her coma.
She remains in a persistent vegetative state. She is unable to take adequate attempts to breathe, to go off the respirator, and yet her other vital signs, such as heart beat, blood pressure and other things, remain quite stable.
Report of Proceedings, at 4. He continued:
*141 I think, based on my previous experience and the medical literature, that the likelihood of a patient in this condition recovering would be extremely small, and I'm not aware of any patient, or any documented cases where a patient under these circumstances, after a cardiac arrest, has awakened and been able to eventually have full recovery of mental faculties.
Report of Proceedings, at 5.
He further testified he doubted any significant amount of brain function could be restored. Only some very minor improvement would ever be expected at the very best. Dr. Trenouth continued, saying, "I would think only an extremely small chance that she would improve enough that she could be able to go off the respirator and sustain life, and again, she would not have return of normal faculties". Report of Proceedings, at 6.
Dr. Walter Ruf, a neurologist, saw her twice, the first time on March 9, 1982, and the second on March 24, 1982. On the 9th, he found Mrs. Colyer in a coma. She remained in a coma. He testified:
She's been totally unresponsive to any sensory stimulus whatsoever. Most of her brain stem function is gone except for the very lower portion of the brain stem, where there is some minimal reflex movement, and then she does have some reflexes in her extremities, and these have remained unchanged since she's been in.
Report of Proceedings, at 8.
Dr. Ruf also performed an EEG which showed some minimal activity. The EEG monitors the cortical function, which is slightly higher than the brain stem. He further testified that he reexamined her on March 24 and found she had lost one of the brain stem functions but was otherwise unchanged. He was asked:
Q When you say there was some function in the lowermost portion of the brain stem, what in the body does that control?
A This controls breathing, and she's had persistent chewing movement of her jaw. She chews on the tube that's in her trachea, going down to her lungs.
Q And you have observed also that she has had a few *142 attempts at spontaneous breathing?
A Yes.
Q And that's consistent with there still being some activity in the lower brain stem?
A Yes, that's right.
Report of Proceedings, at 9.
Asked as to her prognosis for recovery, Dr. Ruf answered:
I think there's no chance that she'll have any purposeful lifestyle. I think she could persist in a vegetative state, even with the removal of the respirator, but the chances of that are very low, also. I think at the very best she's going to be in a vegetative state.
(Italics mine.) Report of Proceedings, at 9-10.
Dr. Trenouth testified that the EEG "is not entirely flat as Dr. Ruf has testified, which shows a slight to minimal amount of activity". He testified further that Colyer "still is maintaining blood pressure and her heart is still functioning". Report of Proceedings, at 12.
Mrs. Higgerson, Colyer's sister, testified, "We feel that it's going against God's will to keep her artificially alive". Report of Proceedings, at 13. The surviving husband and Mrs. Colyer's four sisters all testified to substantially the same thing — that Bertha in her lifetime never discussed the issue of whether or not, if her physical condition should become hopeless, all artificial means should be eliminated, or what they should do if she were to have a prolonged illness which would indicate that she could not recover. However, they all stated that she hated doctors and hospitals, and even when she was very sick she wouldn't go to see a doctor. They all speculated that if she was competent she would make the decision under the present circumstances not to continue with the life supporting mechanism.
Based upon such medical and lay testimony, Philip Rosellini, guardian ad litem for Bertha Colyer, opposed the petition and filed his medical report wherein he concluded:
In the absence of death or consent, and without statutory authority or controlling precedent, the superior court may not terminate life support systems. By any definition Bertha Colyer is not dead, she is unable to give her *143 consent and, through her guardian ad litem, opposes the relief requested by petitioner. There is no statutory authority or controlling precedent which would permit the superior court to terminate the life support systems presently maintaining Bertha Colyer.
Clerk's Papers, at 14.
II
In In re Bowman, 94 Wn.2d 407 , 617 P.2d 731 (1980), we held that a person is dead if he meets either the brain death standard or the cessation of circulatory and respiratory function standard, and that it is for the medical profession to determine the applicable criteria in accordance with accepted medical standards. The Bowman court concluded at page 421:
We therefore adopt the provisions of the Uniform Determination of Death Act which state:
An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.
Justice Utter, speaking for the Supreme Court, pointed out in Bowman at page 413:
The specific issue in this case is whether or not Matthew was legally dead on October 17, 1979, when the physicians declared that he had suffered brain death. We are not presented with the much more difficult question of whether life support mechanisms may be terminated while a person is still alive but in that condition known as a "persistent vegetative state," in which some brain functioning continues to exist.
Eighteen months after Bowman , we are faced with that precise issue. Neither the Washington State Legislature nor the appellate courts have addressed this subject previously.
The majority agrees that this is a case of first impression, and looked to five other states with supposedly similar factual situations for guidance. See In re Quinlan, 70 N.J. 10 , 355 A.2d 647 , cert. denied, 429 U.S. 922 , 50 L. Ed. 2d 289 , *144 97 S. Ct. 319 (1976); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728 , 370 N.E.2d 417 (1977); Leach v. Akron Gen. Med. Ctr., 68 Ohio Misc. 1 , 426 N.E.2d 809 (1980); Severns v. Wilmington Med. Ctr., Inc., 421 A.2d 1334 (Del. 1980); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64 , 438 N.Y.S.2d 266 (1981). The five listed cases, however, give little support for withdrawing a life supporting mechanism in such a short time period. Leach allowed termination of life supporting mechanisms in 4 months; Severns in 5 months; the Quinlan case, after 1 year. The other two cases, Saikewicz and Storar , involved noncoma-tose individuals, both of whom were retarded. The majority opinion represents the most liberal interpretation in the United States as to the length of time an incompetent must remain on a life supporting mechanism before it can be medically determined there is no reasonable possibility of the incompetent ever emerging from the present comatose condition to a cognitive, sapient state.
Evidence presented to the trial court by the attending physicians has shown that Bertha Colyer was indeed alive, and a finding was made by the trial court to that effect. There do exist documented medical instances when fact patterns similar to the one at bar were present and the patient ultimately survived, although these cases are rare. A judge of our own Washington state judicial system a year ago sustained a cardiac arrest. Today he is back on the job full time with no depreciation of his mental abilities, and without any physical restrictions. Time is a great healer. 10
My strongest objection to the granting of this petition is that so little time transpired — only 25 days from the time *145 of the cardiac arrest until the Supreme Court order authorizing implementation of the Superior Court order terminating the life supporting mechanism keeping Bertha Colyer alive. Only 16 days transpired between the time of the cardiac arrest until the two attending physicians testified. This time period is shockingly short. Here was a person whose brain stem was still functioning as the control box for the other parts of the brain. The majority concedes she had some reflexes and some EEG brain activity. It is possible Colyer might have returned to a very useful life, although physically restricted in some manner.
Ill
Bertha Colyer is now gone, and little would be gained by discussing the past. As to the future, however, I do not support the majority's suggested plan for disposing of similar cases. I strongly disagree with the majority's statement at page 134 that an administrative body composed of physicians, social workers, attorneys and theologians "does not best serve the desired function" of properly deciding when the patient's right of privacy outweighs the State's interest in preserving life.
An ethics committee composed of a variety of people concerned about the welfare of the comatose patient would allow the responsibility of the judgment to be diffused, lightening somewhat the heavy burden which would be placed upon the attending and associate physicians under the majority's recommendation. In re Quinlan, at 49-50. Additionally, such a committee would protect the hospital in screening out those cases where the family or physician might be motivated by less than worthy considerations. As the Quinlan court noted at page 50, "In the real world and in relationship to the momentous decision contemplated, the value of additional views and diverse knowledge is apparent".
Where the patient is on a life supporting mechanism such as a respirator, is not legally dead, and has not previously requested termination under those conditions, I *146 would require a waiting period of at least 120 days before a prognosis of the patient's future is attempted. At that time, the matter should be referred to the ethics committee of the hospital. If such ethics committee does not exist, a committee composed of physicians, social workers, attorneys and theologians should be appointed. 11 If this committee then unanimously concludes it would be in the patient's best interest to terminate the patient's life supporting mechanism, no further decision by a court would be necessary. If the committee is divided as to the wisdom of terminating the mechanism, however, the matter should be presented to superior court for final determination. At that stage, the court shall appoint a guardian ad litem to represent the interests of the patient.
In the present case, I would have continued the injunction, pending a 120-day waiting period and the recommendation of an extended ethics committee such as that described in the Quinlan case.
Rosellini, J., concurs with Dore, J.
There exists the case of Dr. Lev Landau, 1962 Nobel prize winner in physics. Dr. Landau suffered severe brain damage as the result of a motor vehicle accident. There existed no response to external stimuli, he had no reflexes and was maintained upon a respirator for 7 weeks. During the time he was on the respirator his heart failed four times and he had a "flat EEG" for 100 days. However, he survived and resumed his studies in theoretical physics. Currie, “The Redefinition of Death”, in Organism, Medicine and Metaphysics, 177-97 (S. Spiker ed. 1978).
I would suggest the Washington State Medical Association establish such a standing committee for the benefit of those hospitals and medical facilities not having their own ethics committees. The benefit of the knowledge of the members of this committee would then be available on a statewide basis.