# Amicus Curiae Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 261

## Text

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IN THE Seog eigen ann,

Supreme Court of the United States

OCTOBER TERM, 1988

NANCY BETH CRUZAN, by her parents and co-guardians,
LESTER L. and JOYCE CRUZAN,

- Petitioners,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,
and ADMINISTRATOR OF THE MISSOURI
REHABILITATION CENTER AT MT. VERNON,

. Respondents,

THAD C. MCCANSE, Guardian ad litem,
Respondent.

On Petition for . Writ of Certiorari to the
Supreme Court of the State of Missouri

BRIEF OF
AMERICAN ACADEMY OF NEUROLOGY
AS AMICUS CURIAE
IN SUPPORT OF THE PETITION

JOHN H. PICKERING

Counsel of Record

EVAN H. CAMINKER

SHARON E. CONAWAY
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, DC 20037-1420
(202) 663-6000

Attorneys for American

May 5, 1989 Academy of Neurology

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TABLE OF CONTENTS

pp tes 8 yy) nner

INTEREST OF AMICUS CURIAE .....................-..---+-

ARGUMENT

%

CONCLUSION

APPENDIX A

THE DECISION BELOW RAISES ISSUES OF
CRITICAL NATIONAL IMPORTANCE BE-
CAUSE IT INTERFERES WITH PHYSI-
CIANS’ ABILITY TO CARE AGGRESSIVELY
FOR UNCONSCIOUS PATIENTS WHILE
HOPE OF RECOVERY REMAINS AND RE-
QUIRES CONTINUED TREATMENT AFTER
HOPE NO LONGER REMAINS .........................

A.

B.

The Persistent Vegetative State Patient and
the Importance of the Decision Below ..........

The Cruzan Majority’s Ruling Requires the
Perpetual Maintenance of Artificial Life
Support for PVS Patients Who, by Defini-
tion, Have No Hope of Recovery ....................

The Irrevocability of an Initial Decision to
Employ Artificial Life-Support Technologies
Will Discourage Their Use in the First In-
stance, Thus Endangering Patients’ Lives
and Violating Accepted Principles of Medical
a

. The Requirement That Physicians Provide

Useless and Unwanted Medical Treatment to
PVS Patients Is Fundamentally at Odds
Both With Principles of Medical Ethics and
With an Accurate Assessment of the Bene-
fits and Burdens of Such Treatment ..............

i
TABLE OF AUTHORITIES

Cases Page
Bouvia v. Superior Court, 179 Cal. App. 3d 1127,
225 Cal. Rotr. BOT (1GBG) 2nncncccceenccteere ee 9
Brophy v. New England Sinai Hospital, Inc., 39
Mass. 417, 497 N.E.2d 626 (1986) ...................- a
In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) .... 9
In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987)... 9
In re Gardner, 534 A.2d 947 (Me. 1987) ................. 9

In re Guardianship of Grant, 109 Wash. 2d 545,

747 P.2d 445 (1987) (en bane) ............................. 9
In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987)... 9
In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) -.... 9
In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. de-

nied, 429 U.S. BBB (GTO) cncccececceceescoue 5
McConnell v. Beverly Enterprises—Connecticut,

Ine., 209 Conn. 692, 553 A.2d 596 (1989)... 6
Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674

(Ariz. 1987) (en bame) ........-+-.10+..0eeeee 9

Schloendorff _v. Society of New York Hospital, 211
N.Y. 125, 105 N.E. 92 (1914), overruled on
other grounds, Bing v. Thunig, 2 N.Y.2d 656,

143 N.E.2d 3, 1638 N.Y.S.2d 3 (1957) --.............. 10
Winston v. Lee, 470 U.S. 753 (1985).............----...-..- 10

Other Authorities

American Academy of Neurology, Position of the
American Academy of Neurology on Certain
Aspects of the Care and Management of the
Persistent Vegetative State Patient (April 21,
1988), reprinted in Neurology, Jan. 1989, at
| eee sancuccesccoeeseceseseeuesnausnueieesniene passim

American Medical Association, Withholding or
Withdrawing Life-Sustaining Medical Treat-
ment, Current Opinions of the Council on Ethi-
cal and Judicial Affairs, Opinion 2.18 (1986)... 6, 11

Cranford, The Persistent Veqetative State: The
Medical Reality (Getting the Facts Straight),
Hastings Ctr. Rep., Feb. March 1988, at 27_..... 3

Hastings Center, Guidelines on the Termination of
Life-Sustaining Treatment and the Care of the
Dying (1967) ..........:c.-ccss-<sssssese 6

ill
TABLE OF AUTHORITIES—Continued

Lynn & Childress, Must Patients Always Be Given
Food and Water?, Hastings Ctr. Rep., Oct. 1983,
ESSE EES TESISIESOS Oe SO

President’s Commission for the Study of Ethical
Problems in Medicine and Biomedical and Be-
havioral Research, Deciding to Forego Life-
Sustaining Treatment (U.S. Govt. Printing Of-
er scseeuvessvecreunseceees

U.S. Congress, Office of Technology Assessment,
Life-Sustaining Technologies and the Elderly,
OTA-BA-306 (U.S. Govt. Printing Office 1987) ..

Page

IN THE
Supreme Cut of the United Stairs

OCTOBER TERM, 1988

No. 88-1503

NANCY BETH CRUZAN, by her parents and co-guardians,
LESTER L. and JOYCE CRUZAN,
. Petitioners,
DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,
and ADMINISTRATOR OF THE MISSOURI
REHABILITATION CENTER AT MT. VERNON,
‘ Respondents,
THAD C. McCCANSE, Guardian ad litem,
Respondent.

On Petition for a Writ of Certiorari to the
Supreme Court of the State of Missouri

BRIEF OF
AMERICAN ACADEMY OF NEUROLOGY
AS AMICUS CURIAE
IN SUPPORT OF THE PETITION

INTEREST OF AMICUS CURIAE

The American Academy of Neurology (the “Academy
is a non-profit organization comprised of over 10,000
neurologists throughout the United States. Because the
Missouri Supreme Court’s 4-3 ruling in this case will sig-
nificantly and adversely affect these physicians’ medical
practices, the Academy submits this brief on behalf of
its members in support of the Petition for Writ of Cer-

”)

2

tiorari. Letters from all parties to the case below indi-
eating their consent to the filing of this brief have been
filed with the Clerk of the Court.

Neurologists are called upon routinely to evaluate in-
juries to the brain and to advise patients and their fam-
ilies or guardians regarding appropriate medical treat-
ment. Often, neurologists must decide swiftly in the early
stages of treatment whether to recornmend the use of ar-
tificial life support technologies to sustain bodily func-
tions while they pursue specific treatment strategies.
These decisions are made with the knowledge that such
life support technologies can maintain a patient’s bodily
functions for many years after the treatment strategies
have failed and the patient has permanently lost all con-
sciousness. Because the ruling below renders the initial
decision to employ life support irrevocable in many cases,
the ruling interferes with neurologists’ ability to recom-
mend certain medical procedures and with patients’ and
their families’ ability freely to give informed consent to
such procedures.

The members of the Academy are particularly con-
cerned about the implications of the decision below for
the thousands of patients with the most severe form of
neurologic disability, those in a “persistent vegetative
state’ (“PVS patients’). In an effort to provide medical
and ethical guidance to doctors in this important area,
the Academy has adopted a formal statement of policy
regarding the treatment of such patients. See American
Academy of Neurology, Position of the American Acad-
emy of Neurology on Certain Aspects of the Care and
Management of the Persistent Vegetative State Patient
(April 21, 1988), reprinted in Neurology, Jan. 1989, at
125 ‘hereinafter ““Academy Statement’) (Appendix A).

The Academy Statement reflects careful deliberation
by the Academy after thorough review of medical, ethi-
cal, and legal literature, and the extensive clinical ex-
perience of Academy members with PVS patients and

3

their families. The Statement is founded on the accepted
principle of medical ethics that neurologists, like all
physicians, have a duty to promote aggressive treatment
of unconscious patients for so long as hope of recovery
remains. The corollary principle mandates that when
hope is gone, sound medical ethics permit neurologists
to terminate all treatment, including artificial nutrition
and hydration, if desired by their patients or the patients’
legal representatives. Neurclogists have a strong inter-
est in practicing medicine in a manner consistent with
their code of ethics, an interest severely compromised by
the ruling below.

On behalf of its member neurologists, and on the basis
of its stated interests, the Academy urges this Court to
grant certiorari in this critically important case.

ARGUMENT

I. THE DECISION BELOW RAISES ISSUES OF
CRITICAL NATIONAL IMPORTANCE BECAUSE
IT INTERFERES WITH PHYSICIANS’ ABILITY
TO CARE AGGRESSIVELY FOR UNCONSCIOUS
PATIENTS WHILE HOPE OF RECOVERY RE-
MAINS AND REQUIRES CONTINUED TREAT-
MENT AFTER HOPE NO LONGER REMAINS

A. The Persistent Vegetative State Patient and the
Importance of the Decision Below

It is estimated that more than 10,000 patients—like
Nancy Cruzan—are being maintained in a_ persistent
vegetative state in the United States today, and the num-
ber will increase significantly in the near future.' These
patients are the unfortunate product of advances in med-
ical technology over the past 20 years. Increased use
of various therapeutic measures such as cardiopulmonary
resuscitation, which until recently were either unknown

1 Cranford, The Persistent Vegetative State: The Medical Real-
ity (Getting the Facts Straight), Hastings Ctr. Rep., Feb./March
1988, at 27, 31.

4

or not widely practiced, represents an important medical
advance. Through these techniques, patients who suffer
a cessation of respiratory and perhaps cardiac function
can, at times, be restored to physical life. Many such
patients are rescued from the brink of death and re-
stored to a meaningful life. But PVS patients cannot be
restored. While not brain-dead, PVS patients have sus-
tained massive and permanent brain dimage and a com-
plete loss of consciousness from which there can be no
recovery. The persistent vegetative state is the most com-
plete and severe form of neurologic disability.

PVS patients are totally and permanently unconscious
and devoid of thought, emotion, and sensation. The Acad-
emy defines the persistent vegetative state as “a form of
eyes-open permanent unconsciousness in which the patient
has periods of wakefulness and physiological sleep ‘wake
cycles,” but in which the patient is at all times totally
unaware of herself or her environment. Academy State-
ment $I. (App. A at la). This condition results when
a person suffers severe damage to the cerebral hemi-
spheres of the brain, which control the “higher ‘thinking’
functious.” but retains a normal brain stem, which con-
trols reflexive functions. See President’s Commission for
the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research, Deciding to Forego Life-Sus-
taining Treatment 175 (U.S. Govt. Printing Office 1983)
(hereinafter “President’s Commission”). Thus, PVS pa-
tients exposed to certain stimuli may exhibit reflexive
responses including grimacing, swallowing, unfocused eye
movement, and pupillary response to light. /d. However,
the loss of all cerebral cortical functions means that
“!pjersonality, memory, purposive action, social interac-
tion, sentience, thought, and even emotional states are
gone... as are joy, satisfaction, and pleasure.” Id. at
174-75, 181-82.

Because PVS patients retain a healthy brain stem, they
generally do not lose their capacity tu breathe, a reflexive
function. But they do lose their ability to chew and
swallow in a normal manner, a cognitive function. Acad-
emy Statement $1.A. (App. A at la). Accordingly, a

ra 5
respirator is generally not needed for life support of
PVS patients, but artificial nutrition and hydration are
necessary.

The attempt of the majority below to characterize the
ongoing provision of nutrition and hydration through a
gastrostomy tube as routine care and not medical treat-
ment is not supported by legal, medical, or ethical prece-
dent and contradicts practical medical reality. The tube
must be implanted surgically with prior, written con-
sent for the procedure. After surgery, the patient re-
ceives a pre-mixed solution of nutrients pumped into the
body through a machine. Although nurses perform the
relatively uncomplicated procedure of administering the
solution, the life support process requires continual and
careful monitoring by a physician.’ All learned medical
and medico-ethical organizations agree that provision of
nutrition and hydration through such a tube is a medical

2 The majority refused to recognize that use of a gastrostomy tube
constitutes medical treatment, but noted the finding in Quinlan that
Karen Quinlan’s respirator was medical “treatment . . . so extraor-
dinary and so invasive that the state’s interest paled in comparison.”
Cruzan v. Harmon, Petitioner’s Appendix at A30 (citing In re
Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976) ).
But the medical community finds no basis for distinguishing between
a respirator and a gastrostomy tube in terms of their status as
medical treatment. In each case, as a result of an accident or other
trauma, the body loses the ability to perform certain functions on
its own and a machine takes over. If a patient cannot breathe, air
is pumped in through a respirator; if a patient cannot swallow,
fluids and nutrition are pumped in through a surgically implanted
tube. Both devices replace normal bodily functions which are com-
promised by the illness. Both are medical treatment.

The majority’s attempt to draw a distinction between initial
insertion of the tube (which it considered medical treatment) and
the ongoing use of the tube (which it described as “not heroically
invasive”) is also insupportable. Pet. App. at A34. The power to
consent to treatment necessarily must include the power to order
the treatment stopped once it has proved ineffective. See Presi-
dent’s Commission at 73-77; Academy Statement § IV.B.-C. (App.
A at 6a-7a).

6

treatment that a patient has a right to forgo.* Likewise,
most higher courts that have considered the status of ar-
tificial nutrition and hydration have determined them to
be medical treatment. See, e.g., McConnell v. Beverly
Enters.-Conn., Inc., 209 Conn. 692, 705, 553 A.2d 596,
603 (1989) (‘‘{t|he applicable case law has by and large
concluded that .. . there is no logical distinction between
removal of a respirator and removal of a gastrostomy
tube’) (citing cases). The majority’s contrary conclu-
sion below is both opposed to established medical practice
and offensive to good medical ethics.

Alsy erroneous is the attempt of the Attorney General
of Missouri to characterize the questions surrounding
forced continued provision of artificia! nutrition and hy-
dration to PVS patients as “extremely narrow” and of
little public importance. Brief in Opposition of Respond-
ents Harmon and Lamkins at 12, 16. In fact, proper
treatment—including the use of artificial nutrition and
hydration—for PVS patients has grown into a medical
problem of national significance. This is apparent, not
only from the Academy’s Statement, but also from the
attention given to the matter by a Presidential Com-
mission, the Office of Technology Assessment of the Con-
gress, the American Medical Association, and bio-ethicists
as cited in note 3 above.

3 Academy Statement §§II., III. (App. A at 2a-6a); President’s
Commission at 190; American Medical Association, Withholding or
Withdrawing Life-Sustaining Medical Treatment, Current Opinions
of the Council on Ethical and Judicial Affairs, Opinion 2.18 (1986)
(hereinafter “AMA Opinion 2.18”) (‘“{ilife prolonging medical
treatment includes medication and artificially or technologically
supplied respiration, nutrition or hydration”); Hastings Center,
Guidelines on the Termination of Life-Sustaining Treatment and
the Care of the Dying 59-62 (1987); U.S. Congress, Office of Tech-
nology Assessment, Life-Sustaining Technologies and the Elderly,
OTA-BA-306 at 275-329 (U.S. Govt. Printing Office 1987).

7

B. The Cruzan Majority’s Ruling Requires the Per-
petual Maintenance of Artificial Life Support for
PVS Patients Who, by Definition, Have No Hope
of Recovery

PVS patients are incapable of feeling pain or other-
wise suffering because such sensations are attributes of
consciousness requiring cerebral cortical functioning that
these patients lack. Academy Statement §1.D. (App. A
at 2a). Given this aspect of the persistent vegetative
state, the Missouri Supreme Court’s interpretation and
application of the right to refuse medical treatment pre-
cludes entirely the withdrawal of artificial nutrition and
hydration from a PVS patient until death occurs from
other causes

The majority below grudgingly conceded that a fed-
eral, privacy-based right to refuse treatment might ex-
ist.* It then purported to balance the individual’s inter-
est in exercising this right against the state’s asserted
abstract interest in the preservation of all biological
life, even if devoid of human consciousness. The ma-
jority concluded that the state’s interest will always
supersede the individual’s rights unless (if ever) con-
tinued treatment is painful or imposes some other burden
on the patient. Finding that the continued supply of
nutrients and fluids through a tube surgically implanted
in Nancy Cruzan’s stomach did not impose any burden
on her, the majority held that the state’s interest pre-
vailed and artificial life support must continue.*

4 Pet. App. at A21-A25. The majority also recognized a qualified
common law right to refuge treatment grounded in the doctrine of
informed consent, and it included that right among the interests of
the patient that it weighed against those of the state. Jd. at A20-
A21, A25, A29.

5 See Cruzan, Pet. App. at A36-A37 (central issue “is whether
feeding and providing liquid to Nancy is a burden to her’) (em-
phasis in original); id. at A388 (“[gliven the fact that Nancy is
alive and that the burdens of her treatment are not excessive for
her, we do not believe her right to refuse treatment . . . outweighs
the [state’s interest in preserving her life]’’).

8

As applied to PVS patients, the majority’s “balancing”’
process is a meaningless exercise. As explained above,
continued medical treatment of any kind can never be
painful or physically burdensome to a PVS patient be-
cause she lacks the cognitive capacity to experience such
sensations. Hence, the Cruzan majority’s reasoning dic-
tates that artificial life support, once initiated for a PVS
patient, must be continued indefinitely in all cases. Such
support may be discontinued only when some other phys-
iological breakdown occurs—perhaps only after many
years—that neither the support system in place nor
other medical procedures can remedy.°

C. The Irrevocability of an Initial Decision to Employ
Artificial Life-Support Technologies Will Discour-
age Their Use in the First Instance, Thus Endan-
gering Patients’ Lives and Violating Accepted
Principles of Medical Ethics

Until an unconscious patient is reliably diagnosed as
being in a persistent vegetative state, the prognosis for
recovery of cerebral cortical functions is uncertain. The
diagnosis of PVS usually cannot be made with medical
certainty “until the patient’s complete unconsciousness has
lasted a prolonged period—usually one to three months

.’ Academy Statement §IV.A. (App. A at 6a). A
physician’s ethical duty aggressively to seek to cure pa-
tients while there is still hope of recovery dictates that
a physician treating an unconscious patient urge the
patient to accept (through her family or legal represent-
ative) artificial life support. Artificial life support
measures, including gastrostomy feeding tubes, ensure
that the patient will benefit from any spontaneous re-
covery of consciousness or from successful medical treat-
ment. At present such advice is ordinarily followed.

® There was medical testimony in the trial court that Nancy, who
was then only 30 years old, could exist as long as 30 years in the
same vegetative state if the artificial nutrition and hydration were
continued. Pet. App. at A8, A26, A38.

§

But such advice is much less likely to be either given
or heeded if, as the Cruzan majority’s holding requires,
the initial decision to employ artificial life support is
irrevocable. Because of an understandable desire to avoid
the considerable risk that such authorization will con-
demn the patient to years of PVS status, physicians will
hesitate to advise, and families will be much less likely
to authorize, artificial nutrition and hydration for pa-
tients whose prognosis is grim but not hopeless. As one
court stated, “|s]uch a rule [of irrevocability] could
discourage families and even doctors from even attempt-
ing certain types of care and could thereby force them
into hasty and premature decisions to allow a patient to
die.” In re Conroy, 98 N.J. 321, 370, 486 A.2d 1209,
1234 (1985).7 Thus, the Cruzan majority’s rule not only
would discourage the practice of ethical medicine,* but
ultimately would undermine the state’s asserted interest
in preserving life.’

7 See also Brophy v. New England Sinai Hosp., Inc., 398 Mass.
417, 438, 497 N.E.2d 626, 638 (1986); Lynn & Childress, Must
Patients Always Be Given Foud and Water?, Hastings Ctr. Rep.,
Oct. 1983, at 17, 19-20.

8 Numerous state courts have relied on principles of medical
ethics to guide them in cases concerning PVS patients. See Ras-
mussen v. Fleming, 154 Ariz. 207, 217, 741 P.2d 674, 684 (Ariz.
1987) (en banc); In re Gardner, 534 A.2d 947, 954 (Me. 1987);
Brophy, 398 Mass. at 439, 497 N.E.2d at 638; In re Johes, 108 NJ.
394, 417, 529 A.2d 434, 446 (1987); In re Peter, 108 N.J. 365, 381-
82, 529 A.2d 419, 427-28 (1987); In re Farrell, 108 N.J. 335, 350-51,
529 A.2d 404, 411-12 (1987); In re Guardianship of Grant, 109
Wash. 2d 545, 554-55, 747 P.2d 445, 450 (1987) (en banc); Bouvia
v. Superior Court, 179 Cal. App. 3d 1127, 1141, 225 Cal. Rptr. 297,
303-04 (1986).

® It may be possible to interpret Cruzan so as to avoid this result,
but doing so would create an even worse nightmare. The state
might attempt to preclude doctors and families from taking irrevo-
cability into account during early treatment decisions by compelling
them to employ all available means of artificial life support in the
first instance.

Given the majority’s conclusion that the state’s interest always
outweighs the patient’s rights where treatment imposes no burden

10

D. The Requirement That Physicians Provide Useless
and Unwanted Medical Treatment to PVS Patients
Is Fundamentally at Odds Both With Principles of
Medical Ethics and With an Accurate Assessment
of the Benefits and Burdens of Such Treatment

A physician’s duty aggressively to promote the well-
being of a patient presumes that some chance of improve-
ment or recovery remains. However, the Cruzan major-
ity held that artificial life support must be maintained
even after hope is lost, apparently on the assumption that
physicians still have a duty to “care”: “|W|hen we
permit ourselves to think that care is useless if it pre-
serves the life of the embodied human being without
restoring cognitive capacity, we fall victim to the old
delusion that we have failed if we cannot cure and that
there is, then, little point to continue care.” Pet. App. at
A36 (citation omitted) (emphasis in original).

In the context of a PVS patient’s existence, “care’’ may
have symbolic meaning for the caregiver, the family, and
society, but it has no meaning for the patient. The pa-
tient cannot understand or even perceive her care, much
less be comforted by it. Therefore, she cannot be re-
garded as benefitting from care in any meaningful sense.
Hence, ethical principles recognize that where the family,

(of the sort recognized by the majority), the majority’s reasoning
usually would sustain such state compulsion. However, the result—
forced irrevocable artificial support for all patients under all circum-
stances—is clearly incompatible with the principle of bodily in-
tegrity inherent in the Fourteenth Amendment. Cf., e.g., Winston
v. Lee, 470 U.S. 753, 761 (1985) (state cannot compel criminal
defendant to undergo surgery to retrieve bullet necessary for state’s
prosecution because of “intrusion upon the individual’s dignitary
interests in personal privacy and bodily integrity”) ; id. at 765 (sur-
gery absent patient’s informed consent is demeaning and intrusive) ;
Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129-30, 105
N.E. 92, 93 (1914) (Cardozo, J.) (recognizing the “right to deter-
mine what should be done with [one’s] own body”), overruled on
other grounds, Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163
N.Y.S.2d 3 (1957).

11

speaking for the patient, feels that “care” has become a
euphemism for the meaningless prolongation of vegetative
life, the physician has no contrary duty to maintain
such care. Academy Statement §§ II.A., III. (App. A at
2a-5a) ; AMA Opinion 2.18.

Moreover, a physician’s ethical duty is not to preserve
life or well-being at all costs, but rather to do so in a
manner consistent with the patient’s right to self-
determination. See Academy Statement § II.D.1. (App.
A at 4a) (“The recognition of a patient’s right to self-
determination is central to the medical, ethical, and legal
principles relevant to medical treatment decisions.’’).
Hence, state-compelled maintenance of useless and unde-
sired artificial life support for PVS patients not only di-
rectly infringes the patient’s constitutional guarantee of
fundamental liberty, but it does so in a manner that
interferes with physicians’ ethical responsibility to avoid
harming the dignity of their patients. The Cruzan ma-
jority ignored the established principle of medical ethics
that, “[a]t all times, the dignity of the patient should be
maintained.” '*° In the process, it withheld from Nancy
Cruzan a core aspect of humanity by requiring her and
many others sharing her misfortune to be kept “alive”
for years to come in an undignified vegetative state."' As
another high state court realized,

10 AMA Opinion 2.18. Furthermore,

[ijn deciding whether the administration of potentially life-
prolonging medical treatment is in the best interest of the
patient who is incompetent to act in his behalf, the physician
should determine what the possibility is for extending life
under humane and comfortable conditions and what are the
prior expressed wishes of the patient and attitudes of the fam-
ily or those who have responsibility for the custody of the
patient.

Jd. (emphasis added).

11 As recounted in the Petition for Certiorari, Nancy Cruzan

is completely dependent upon others for care. Her body is stiff
and so severely contracted that her fingernails cut into her

12

In certain, thankfully rare, circumstances the burden
of maintaining the corporeal existence degrades the
very humanity it was meant to serve. ... The duty
of the State to preserve life must encompass a recog-
nition of an individual’s right to avoid circumstances
in which the individual himself would feel that efforts
to sustain life demean or degrade his humanity.

Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417,
434, 497 N.E.2d 626, 635 (1986).

By insisting on the preservation of life at all costs
and regardless of circumstances, the decision below pre-
vents physicians from taking into account patients’, their
families’, and society’s interests in maintaining dignity.
It thus precludes physicians from “caring” for their
PVS patients in the only way that “care” has any mean-
ing once the PVS diagnosis has been confirmed.

CONCLUSION

For the foregoing reasons, and for those stated in the
Petition for a Writ of Certiorari, the Petition should be

granted.
Respectfully submitted,

JOHN H. PICKERING
Counsel of Record
EVAN H. CAMINKER
SHARON E. CONAWAY
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, DC 20037-1420
(202) 663-6000
Attorneys for American
May 5, 1989 Academy of Neurology
wrists. Her face is red, puffy and swollen, and ske drools on
herself. She is missing teeth. Her bathing, oral care and per-
sonal feminine hygiene, including menses, are cared for by
others. She must be turned every few hours to prevent bedsores.

Petition for Writ of Certiorari at 5 (citation omitted).

APPENDIX

la
APPENDIX A

POSITION OF THE AMERICAN ACADEMY OF
NEUROLOGY ON CERTAIN ASPECTS OF THE
CARE AND MANAGEMENT OF THE
PERSISTENT VEGETATIVE STATE PATIENT *

Adopted by the Executive Board,
American Academy of Neurology,
April 21, 1988, Cincinnati, Ohio

I. The persistent vegetative state is a form of eyes-
open permanent unconsciousness in which the patient has
periods of wakefulness and physiological sleep/wake cy-
cles, but at no time is the patient aware of him- or her-
self or the environment. Neurologically, being awake but
unaware is the result of a functioning brainstem and the
total loss of cerebral cortical functioning.

A. No voluntary action or behavior of any kind is
present. Primitive reflexes and vegetative functions that
may be present are either controlled by the brainstem or
are so elemental that they require no brain regulation at
all.

Although the persistent vegetative state patient is gen-
erally able to breathe spontaneously because of the in-
tact brainstem, the © .pacity to chew and swallow in a
normal manner is lost because these functions are volun-
tary, requiring intact cerebral hemispheres.

B. The primary basis for the diagnosis of persistent
vegetative state is the careful and extended clinical ob-
servation of the patient, supported by laboratory studies.
Persistent vegetative state patients will show no _ be-
havioral response whatsoever over an extended period of

et ee ko a

* Reprinted in Neurology, Jan. 1989, at 125.

2a

time. The diagnosis of permanent unconsciousness can
usually be made with a high degree of medical certainty
in cases of hypoxic-ischemic encephalopathy after a pe-
riod of 1 to 3 months.

C. Patients in a persistent vegetative state may con-
tinue to survive for a prolonged period of time (“pro-
longed survival”) as long as the artificial provision of
nutrition and fluids is continued. These patients are not
“terminally ill.”

D. Persistent vegetative state patients do not have the
capacity to experience pain or suffering. Pain and suffer-
ing are attributes of consciousness requiring cerebral
cortical functioning, and patients who ure permanently
and completely unconscious cannot experience these
symptoms.

There are several independent bases for the neurologi-
eal conclusion that persistent vegetative state patients do
not experience pain or suffering. ¥

First, direct clinical experience with these patients
demonstrates that there is no behavioral indication of any
awareness of pain or suffering.

Second, in all persistent vegetative state patients stu-
died to date, postmortem examination reveals overwhelm-
ing bilateral damage to the cerebral hemispheres to a
degree incompatible with consciousness or the capacity to
experience pain or suffering.

Third, recent data utilizing positron emission tomo-
graphy indicates that the metabolic rate for glucose in
the cerebral cortex is greatly reduced in persistent vege-
tative state patients, to a degree incompatible with con-
sciousness.

II. The artificial provision of nutrition and hydration
is a form of medical treatment and may be discontinued
in accordance with the principles and practices govern-

3a

ing the withholding and withdrawal of other forms of
medica! treatment.

A. The Academy recognizes that the decision to dis-
continue the artificial provision of fluid and nutrition
may heve special symbolic and emotional significance for
the parties involved and for society. Nevertheless, the
decision to discontinue this type of treatment should be
made in the same manner as other medical decis.vas, i.e.,
based on a careful evaluation of the patient’s diagnosis
and prognosis, the prospective benefits and burdens of
the treatment, and the stated preferences of the patient
and family.

B. The artificial provision of nutrition and hydration
is analogous to other forms of life-sustaining treatment,
such as the use of the respirator. When a patient is
unconscious, both a respirator and an artificial feeding
device serve to support or replace normal bodily func-
tions that are compromised as a result of the patient’s
illness.

C. The administration of fluids and nutrition by medi-
cal means, such as a G-tube, is a medical procedure,
rather than a nursing procedure, for several reasons.

1. First, the choice of this method of providing fluid
and nutrients requires a careful medical judgment as to
the relative advantages and disadvantages of this treat-
ment. Second, the use of a G-tube is possible only by the
creation of a stoma in the abdominal wall, which is un-
questionably a medical or surgical procedure. Third, once
the G-tube is in place, it must be carefully monitored by
physicians, or other health care persennel working under
the direction of physicians, to insure that complications
do not arise. Fourth, a physician’s judgment is neces-
sary to monitor the patient’s tolerance of any response to
the nutrients that are provided by means of the G-tube.

2. The fact that the placement of nutrients into the
tube is itself a relatively simple process, and that the

4a

feeding does not require sophisticated mechanical equip-
ment, does not mean that the provision of fluids and
nutrition in this manner is a nursing rather than a
medical procedure. Indeed, many forms of medical treat-
ment, including, for example, chemotherapy or insulin
treatments, involve a simple self-administration of pre-
scription drugs by the patient. Yet such treatments are
clearly medical and their initiation and monitoring re-
quire careful medical attention.

D. In caring for hopelessly ill and dying patients,
physicians must often assess the level of medical treat-
ment appropriate to the specific circumstances of each
case.

1. The recognition of a patient’s right to self-
determination is central to the medical, ethical, and legal
principles relevant to medical treatment decisions.

2. In conjunction with respecting a patient’s right to
self-determination, a physician must also attempt to pro-
mote the patient’s well-being, either by relieving suffer-
ing or addressing or reversing a pathological process.
Where medical treatment fails to promote a patient’s
well-being, there is no longer an ethical obligation to
provide it.

3. Treatments that provide no benefit to the patient
or the family may be discontinued. Medical treatment
that offers some hope for recovery should be distinguished
from treatment that merely prolongs or suspends the
dying process without providing any possible cure. Medi-
cal treatment, including the medical provision of artifi-
cial nutrition and hydration, provides no benefit to pa-
tients in a persistent vegetative state, once the diagnosis
has been established to a high degree of medical cer-
tainty.

III. When a patient has been reliably diagnosed as
being in a persistent vegetative state, and when it is
clear that the patient would not want further medical

5a

treatment, and the family agrees with the patient, all
further medical treatment, including the artificial provi-
sion of nutrition and hydration, may be forgone.

A. The Academy believes that this stardard is con-
sistent with prevailing medical, ethical, and legal prin-
ciples, and more specifically with the formal resolution
passed on March 15, 1986 by the Council on Ethical and
Judicial Affairs of the American Medical Association,
entitled “Withholding or Withdrawing Life-Prolonging
Medical Treatment.”

B. This position is consistent with the medical com-
munity’s clear support for the principle that persistent
vegetative state patients need not be sustained indefi-
nitely by means of medical treatment.

While the moral and ethical views of health care pro-
viders deserve recognition, they are in general secondary
to the patient’s and family’s continuing right to grant
or to refuse consent for life-sustaining treatment.

C. When the attending physician disagrees with the
decision to withhold all further medical treatment, such
as artificial nutrition and hydration, and feels that such
a course of action is morally objectionable, the physi-
cian, under normal circumstances, should not be forced
to act against his or her conscience or perceived under-
standing of prevailing medical standards.

In such situations, every attempt to reconcile differ-
ences should be made, including adequate communication
among all principal parties and referral to an ethics com-
mittee where applicable.

If no consensus can be reached and there appear to be
irreconcilable differences, the health care provider has an
obligation to bring to the attention of the family the
fact that the patient may be transferred to the care of
another physician in the same facility or to a different
facility where treatment may be ciscontinued.

6a

D. The Academy encourages health care providers to
establish internal consultative procedures, such as ethics
committees or other means, to offer guidance in cases of
apparent irreconcilable differences. In May 1985, the
Academy formally endorsed the voluntary formation of
multidisciplinary institutional ethics committees to func-
tion as educational, policy-making, and advisory bodies to
address ethical dilemmas arising within health care in-
stitutions.

IV. it is good medical practice to initiate the artificial
provision of fluids and nutrition when the patient’s
prognosis is uncertain, and to allow for the termination
of treatment at a later date when the patient’s condition
becomes hopeless.

A. A certain amount of time is required before the
diagnosis of persistent vegetative state can be made with
a high degree of medical certainty. It is not until the
patient’s complete unconsciousness has lasted a prolonged
period—usually 1 to 3 months—that the condition can
be reliably considered permanent. During the initial pe-
riod of assessment and evaluation, it is usually appro-
priate to provide aggressive medical treatment to sustain
the patient.

Even after it may be clear to the medical professionals
that a patient will not regain consciousness, it may still
take a period of time before the family is able to accept
the patient’s prognosis. Once the family has had suffi-
cient time to accept the permanence of the patient’s con-
dition, the family may then be ready to terminate what-
ever life-sustaining treatments are being provided.

B. The view that there is a major medical or ethical
distinction between the withholding and withdrawal of
medical treatment belies common sense and good medical
practice, and is inconsistent with prevailing medical,
ethical, and legal principles.

7a

C. Given the importance of an adequate trial period
of observation and therapy for unconscious patients, a
family member must retain the ability to withdraw con-
sent for continued artificial feedings well after initial
consent has been provided. Otherwise, consent will have
been sought for a permanent course of treatment before
the hopelessness of the patient’s condition has been de-
termined by the attending physician and is fully appre-
ciated by the family.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A10. Public record. Not legal advice.