Petition for Writ of Certiorari — Spahn v. Wittman

Supreme Court brief1997

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4. DE PTY e. 1

~ FILED

y 97-437 SEP 10 1997

No. —————_ ; as

OrFitc Ul tHE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

BETTY SPAHN, Sister and Guardian of Edna M. Folz,

Petitioner,

MARK WITTMAN, Guardian ad Litem for Edna M. Folz,

Respondent.

Petition for Writ of Certiorari to the

Wisconsin Supreme Court

PETITION FOR WRIT OF CERTIORARI

ROBYN S. SHAPIRO *

MIRIAM S. FLEMING

MICHAEL, BEST & FRIEDRICH LLP

100 East Wisconsin Avenue

Suite 3300

Milwaukee, Wisconsin 53202

(414) 271-6560

* Counsel of Record Attorneys for Petitioner

WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

os ,

QUESTION PRESENTED

Edna Folz is a 73 year-old woman suffering through

the end stages of very advanced Alzheimer’s dementia.

She is bedridden in a fetal position; incontinent of bowel

and bladder; unable to eat, move, or even follow simple

commands; and she is without prospect for mprovement.

She is kept alive by a surgically implanted gastrostomy

tube that artificially provides her with fluid and nutrition.

Edna’s health care providers, her guardian ad litem, and

her family members supported her legal guardian’s good

faith determination that treatment termination would be

in Edna’s best interests. Yet, the Wisconsin Supreme

Court held that Betty Spahn, Edna’s sister and legal

guardian, may not authorize withdrawal of Edna’s treat-

ment, under the following rule: “If that person is not in

a persistent vegetative state, this court has determined

that, as a matter of law, it is not in the best interests

of the ward to withdraw life-sustaining treatment, includ-

ing a feeding tube, unless the ward has executed an

advance directive or other statement clearly indicating his

or her desires.” The question presented is:

Whether, consistent with equal protection of the law and

liberty interests under the Fourteenth Amendment to the

U S. Constitution, a state may allow guardians to author-

ize withdrawal of life-sustaining treatment from incompe-

tent persons in a persistent vegetative state regardless of

whether the incompetent has executed a clear prior treat-

ment directive, but prohibit guardians from exercising this

liberty interest on behalf of all other incompetent persons

unless the incompetent has executed a clear prior treat-

ment directive.

LIST OF PARTIES

In addition to the parties listed in the caption of the

case, the following are additional parties:

Howard B. Eisenberg, Esq.

1103 West Wisconsin Avenue

P.O. Box 1881

Milwaukee, WI 53201

(414) 288-1768

The Supreme Court of Wisconsin appointed Attorney

Howard B. Eisenberg as Respondent-Designate to appear

and provide briefing to the Court in support of the decision

of the Circuit Court of Wood County, Wisconsin.

Edna M. Folz

c/o Marshfield Nursing & Rehabilitation Center

814 West 14th Street

Marshfield, Wisconsin 54449

Ms. Folz is the incompetent for whom the petitioner is

guardian.

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED |... .

REASONS FOR GRANTING THE PETITION .

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF OTHER STATE SUPREME

COURTS AND WITH VARIOUS STATE

ca, LEN ES SiS Leas re

II. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND VIO-

LATES THE EQUAL PROTECTION CLAUSE.

Ill. THIS CASE PRESENTS PUBLIC POLICY

ISSUES OF NATIONAL IMPORTANCE ___.

CONCLUSION

APPENDIX:

In re Edna M.F. v. Howard B. Eisenberg, No. 95-

2719, Wisconsin Supreme Court Opinion ___.

(iii)

TABLE OF CONTENTS—Continued

Wisconsin Supreme Court November 20, 1996 Or-

der to realign appellate parties ..............................

Wisconsin Supreme Court September 19, 1996

Order appointing respondent-designate ..............

Wisconsin Supreme Court April 16, 1996 Order

granting Petition to Bypass Wisconsin Court of

DST. a sstessssistsctcascsesinictrsrnsesdintentibiniasssnantncsiotes

Notice of Appeal to Wisconsin Court of Appeals....

Circuit Court, Wood County, Wisconsin, August 22,

1995 Order denying Petition for Order Confirm-

ing Guardian’s Decision to Withdraw Artificial

I a a nal

Circuit Court, Wood County, Wisconsin, April 17,

1995 Memorandum Decision denying Petition for

Order Confirming Guardian’s Decision to With-

oe Me Ry eee

Petition for Order Confirming Guardian’s Decision

to Withdraw Artificial Nutrition ..........................

Excerpt: Guardian’s “Brief in Support of Petition

for Order Confirming Guardian’s Decision to

Withdraw Artificial Nutrition” ...................0........

Excerpts: Guardian’s “Appellant Brief’ to Wis-

I TIS Br PIII so ccisecis i cess sncemencemntntortnencnnece

40a

TABLE OF AUTHORITIES

Cases Page

Barber v. Superior Court, 147 Cal. App. 3d 1006,

195 Cal, Rptr. 484 (1983) 0 10, 18

Cleburne v. Cleburne Living Center, 473 U.S. 432

bo FE eS REMOTE ae ey 19

Cruzan v. Director, Missouri Department of Health,

GOT UG. BOE (1DBG) nanan cnceceeccereee es 9, 10, 17

Foody v. Manchester Mem. Hosp., 40 Conn. Supp.

127, 482 A.2d 718 (1984) 0 9,10

In re Barry, 445 So. 2d 365 (Fla. App. 2d Dist.

ROED comcscsanenscesiolcaaten ante ee ae 9

In re C.A., 236 Ill, App, 3d 594, 603 N.E.2d 1171

LGUUMD sctleihicisbehiddivtintinuaceaiatiesie ee aay 14

In re Colyer, 99 Wash. 2d 114, 660 P.2d 738

(RINE witteescssetacesidennaliiiiaan ln es aa Rae: g

aD me. Tee ae ee 11

In re Grant, 109 Wash. 2d 545, 747 P.2d 445

(1987), modified 757 P.2d 534 ee 18, 14

In re Jane Doe, 262 Ga. 389, 418 S.E,2d 3 (1992)... 12

In re L. W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992) passim

In re L.H.R., 258 Ga. 439, 321 S.E.2d 716 (1984) .... 10

In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. de-

nied, 429 U.S. 922 (1976) 0 10, 11

In re Roche, 296 N.J. Super. 583, 687 A.2d 349

ng, TR RA ARs See neers ead oP neo a 9

In re Rosebush, 195 Mich. App. 675, 491 N.W.2d

Se OE ites teased ae ee ater) wr, 14

In re Severns, 425 A.2d 156 (Del. Ch. 1980)... 9

In re Torres, 357 N.W.2d 332 (Minn. 1984) 9

Jackson v. Indiana, 406 U.S. 715 (| ae 17, 18

John F. Kennedy Memorial Hospital, Inc. v

Bludworth, 452 So. 2d 921 (Fla. a 9

Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1998)... 10

Mills v. Rogers, 457 U.S. 291 a 17

Parham v. J.R., 442 U.S. 584 I iin eae 17

TABLE OF AUTHORITIES—Continued

Page

Skinner v. Oklahoma, 316 U.S. 585 (1942) ............ 17, 19

Superintendent of Belchertown State School v.

Saikewicz, 373 Mass. 728, 370 N.E.2d 417

CRIT UD cscncssctochoiansnctessslecietbahadenceddmantnaasaiadiamie tices 10

Thompson v. Oklahoma, 487 U.S. 815 (1988) .......... 18

Union Pacific R. Co. v. Botsford, 141 U.S. 250

5 RRA Renee ARON OW Leia S82 ni AE, OP 17

Youngberg v. Romeo, 457 U.S. 307 (1982) ............. 17

Constitution, Statutes and Other Authority

Be To | RRR RER amenenes | kr ee ene 1

Md. Code Ann. [Health-Gen.] § 5-601 (1996) ........... passim

Md. Code Ann. [Health-Gen.] § 5-605 (1996) ........... passim

On, BROW. Bbak, © EC CRIB D savcccesctscececsanssvncsesonsconss passim

President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havioral Research, Deciding to Forego Life-

Sustaining Treatment (19838) ...............-......---2-200-+- 20, 21

U.S. Constitution, Amendment V .............................-- passim

U.S. Constitution, Amendment XIV, Section 1.......... passim

OPINIONS BELOW

The opinion of the Wisconsin Supreme Court (Appen.

infra, 1a-34a) is reported at 210 Wis. 2d 558, 563 N.W.2d

485 (1997). This matter was heard by the Wisconsin

Supreme Court on bypass from the circuit court. Accord-

ingly, there is no appellate court opinion. The opinion of

the Wood County Circuit Court is not reported. How-

ever, the Memorandum Decision and Order of the Wood

County Circuit Court are reprinted in the Appendix infra

(Appen. 42a-44a and 40a-41a, respectively ).

JURISDICTION

On April 17, 1995, the Wood County Circuit Court

issued its Memorandum Decision and ruled that it would

not confirm Edna M. Folz’s guardian’s decision to with-

draw artificial nutrition from her ward. Appen, infra

42a-44a. On August 22, 1995, the Wood County Circuit

Court entered its Order confirming its Memorandum Deci-

sion. Appen. infra 40a-4la. On April 16, 1997, the

Wisconsin Supreme Court granted a petition to bypass

the Wisconsin Court of Appeals. Appen. infra 37a. On

June 12, 1997, the Wisconsin Supreme Court affirmed the

opinion of the Wood County Circuit Court. Appen. infra

la-34a. Throughout these proceedings, petitioner asserted,

inter alia, that Edna Folz has a liberty interest under the

Due Process Clause of the United States Constitution to

be free from unwanted medical treatment and that to

deny her guardian the ability to relieve Edna Folz from

the provision of artificial nutrition because Edna Folz is

not in a persistent vegetative state, while permitting guard-

ians of persistently vegetative incompetents to do so, vio-

lates the United States Constitution. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Constitution of the United States provides in perti-

nent part:

vn at

AMENDMENT V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger; nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

AMENDMENT XIV, SECTION 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due proc-

ess of law; nor deny to any person within its juris-

diction the equal protection of the laws.

MD. CODE ANN. § 5-601 HEALTH-GENERAL

Maryland Code Annotated Section 5-601 provides in

pertinent part:

Definitions. , “ ‘ ‘

benefits to the individual resulting from a treatment

outweigh the burdens to the individual resulting from

that treatment, taking into account:

(1) The effect of the treatment on the physi-

cal, emotional, and cognitive functions of the

individual;

(2) The degree of physical pain or discom-

fort caused to the individual by the treatment.

the withholding or withdrawal of the treatment;

Baas heat

(3) The degree to which the individual’s

medical condition, the treatment, or the with-

holding or withdrawal of treatment result in a

severe and continuing impairment of the dignity

of the individual by subjecting the individual to

the condition of extreme humiliation and de-

pendency;

(4) The effect of the treatment on the life

expectancy of the individual;

(5) The prognosis of the individual for re-

covery, with and without the treatment;

(6) The risks, side effects, and benefits of the

treatment or withholding or withdrawal of the

treatment; and

(7) The religious beliefs and basic values of

the individual receiving treatment, to the extent

these may assist the decision maker in deter-

mining best interest.

MD. CODE ANN. § 5-605

SURROGATE DECISION MAKING

Maryland Code Annotated section 5-605 provides in

pertinent part:

(a) Surrogate authorization.

* * * *

(2) The following individuals or groups, in

the specified order of priority, may make deci-

sions about health care for a person who has not

been certified to be incapable of making an

informed decision and who has not appointed a

health care agent in accordance with this sub-

title. Individuals in a particular class may be

consulted to make a decision only if all individ-

uals in the next higher class are unavailable:

(1) A guardian for the patient, if one

has been appointed;

(ii) The patient’s spouse:

(iii) An adult child of the patient;

(iv) a parent of the patient;

(v) An adult brother or sister of the

patient.

* * * *

authorized to make health care decisions for another

under this section shall base those decisions on the

wishes of the patient and, if the wishes of the patient

are unknown or unclear, on the patient’s best interest.

OR. REV. STAT. § 127.635

Oregon Revised Statutes section 127.635 provides in

pertinent part:

127.635. Withdrawal of life-sustaining procedures;

conditions; selection of health care representative in

certain cases; required consultation.

(1) Life-sustaining procedures as defined in

ORS 127.505 which would otherwise be applied

to an incapable principal who does not have an

appointed health care representative or applica-

ble valid advance directive may be withheld or

withdrawn in accordance with subsections (2)

and (3) of this section if the principal has been

medically confirmed to be in one of the following

conditions:

(a) A terminal condition;

(b) Permanently unconscious;

of life-sustaining procedures would not ben-

efit the principal’s medical condition and

would cause permanent and severe pain;

and

(d) The person has a progressive illness

that will be fatal and is in an advanced

stage, the person is consistently and per-

manently unable to communicate by any

means, swallow food and water safely, care

for the person’s self and recognize the per-

son’s family and other people, and it is very

| Ne

unlikely that the person’s condition wil]

substantially improve.

STATEMENT

A. Edna Folz’s Condition

Edna Folz is a 73 year-old woman suffering through

the end stages of very advanced Alzheimer’s dementia,

which was diagnosed in 1979. She lies in bed in a fetal

position, hips and knees flexed, arms up to her chest,

unable voluntarily to change body position, and in need

of constant repositioning by others to avoid skin break-

down. She is incontinent of bowel and bladder, unable

to feed herself and unable to follow even simple com-

mands, such as closing her eyes or looking when her name

is called. Although Edna exhibits general non-specific

responses to mildly noxious stimuli, she shows no mean-

ingful attempt to withdraw from such stimuli.

Edna has had a permanent, surgically implanted feed-

ing tube since December 1988. While she was not capable

of making treatment decisions when the feeding tube was

inserted, the manifestations of her Alzheimer’s disease

were much more limited then than they were at the time

this matter was before the trial court and than they are

today. At the time her feeding tube was inserted, Edna

appreciated her environment to some degree, she recog-

nized family members, and, to a limited extent, she was

able to enjoy social interaction.

Since Alzheimer’s dementia js a progressive, degenera-

tive disease of the cerebral cortex, for which there is no

known cure, there is no chance that Edna will recover to

a cognitive state or even to a minimal level of social or

human functioning. Rather, her mental and physical con-

ditions will continue to deteriorate. Currently, Edna’s

condition resembles a persistent vegetative State, but it

does not meet the strict definition of that condition because

She does exhibit minimal response to stimulation and can

feel pain.

Prior to her illness, Edna was a vibrant and independent

woman, an accomplished journalist, an involved com-

munity volunteer, and a devout Roman Catholic. She

was and is dearly loved by her family and friends, who

feel that she “would not want to be kept alive” in her

current condition. The belief of family members that

Edna would reject the treatment she currently receives

is based on their knowledge of her values and previous

life style, as well as a statement she made, at the age of

42 or 43, that she would rather die of cancer than lose her

mind.

Edna has had an especially close relationship with her

sister, Betty Spahn, the petitioner herein.

B. Proceedings in the Lower Courts

In October 1994, faced with Edna’s deteriorating and

hopeless condition, Edna’s sister and court appointed

guardian, Betty Spahn, determined that Edna would not

have wanted continued artificial nutrition. Betty therefore

asked the nursing facility in which Edna resided (and

continues to reside) to discontinue her artificial feeding.

The facility’s ethics committee met to consider Betty’s

request and advised that it would be ethically appropriate

to discontinue the artificial feeding, but required that the

facility secure written consent for this discontinuation from

all of Edna’s potential heirs. All of Edna’s family mem-

bers did consent to the withdrawal of artificial nutrition,

but one niece refused to memorialize her assent in writing.

The nursing facility, therefore, insisted on 2 court order

for the withdrawal of Edna’s treatment.

On January 12, 1995, Betty filed a petition in the

Wood County, Wisconsin Circuit Court seeking an Order

confirming her authority, as guardian, to direct the with-

drawal of artificial nutrition from Edna. Appen. infra

45a-50a. On January 13, 1995, the court appointed

Mark E. Wittman as guardian ad litem to represent Edna’s

best interests.

Both the guardian and the guardian ad litem submitted

briefs to the court in which they argued that in the case

of In re L.W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992),

eee

the Wisconsin Supreme Court held that an individual’s

right to refuse unwanted medical treatment emanates from

both common law rights and the personal liberties pro-

tected by the Fourteenth Amendment to the federal con-

stitution. [R. 8-1 to 8-8; R. 11-1 to 11-7] The parties

also agreed that In re L.W., squarely holds that this right

extends to incompetent as well as competent individuals:

that it includes the right to refuse or withdraw artificial

nutrition and hydration; and that where the incompetent

is iN a persistent vegetative state, it may be exercised by

a guardian, even where there are no clear statements of

what the patient’s treatment preferences would be, via

application of a best interests analysis. [R. 8-3 to 8-5, 8-7;

R. 11-2 to 11-7]

Although the L.W. decision expressly protects the treat-

ment termination rights only of incompetents in a per-

sistent vegetative state, the guardian argued that excluding

all other incompetents from this protection would be un-

reasonable, illogical and violative of the Constitution.

Appen. infra 5la-52a. [R. 8-7] The guardian therefore

asked the trial court to apply the principles and rationale

stated in L.W., via either a best interests or a substituted

judgment approach, to affirm Edna’s guardian’s request

to terminate her artificial nutrition. The guardian ad litem

agreed that termination of artificial nutrition would he

in Edna’s best interests.

After hearings held on March 22, 1995 and April 11,

1995, at which the Wood County Circuit Court heard

testimony and oral argument, the trial court concluded

that because Edna was not in a persistent vegetative state,

it did not have authority under existing Wisconsin law to

authorize her treatment termination. The Court issued a

Memorandum Decision on April 17, 1997 and entered its

final order denying the Guardian’s petition on August 22,

1997. Appen. infra 42a-44a; 40a-41a.

On September 29, 1995, the Guardian appealed the

trial court’s ruling to the Wisconsin Court of Appeals and

also filed a petition to bypass the Court of Appeals with

the Wisconsin Supreme Court. Appen. infra 38a-39a. In

appellate court briefs, the guardian and guardian ad litem

again argued that Edna has a fundamental liberty interest

under the Fourteenth Amendment to be free from un-

wanted life sustaining medical treatment, including artifi-

cial nutrition and hydration, and that her guardian should

be able to exercise that right on her behalf under either

a substituted judgment or best interests analysis. [Guard-

ian’s Appellant’s Brief to Wisconsin Court of Appeals at

pp. 17-23, 29-45, 52-65; Guardian ad Litem’s Reply

Brief to Wisconsin Court of Appeals at pp. 6-19] The

Guardian again stressed that to permit incompetent pa-

tients in a persistent vegetative state to exercise their

liberty interest to refuse treatment, while prohibiting in-

competent patients who are not in a persistent vegetative

state from doing so, violates the non-persistently vegetative

patients’ federal constitutional rights. Appen. infra 53a-

55a. [Guardian’s Appellant Brief to Wiscsonsin Court of

Appeals at pp. 52-66]

On April 16, 1995, the Wisconsin Supreme Court

granted the petition to bypass, indicating that the Court of

Appeals briefing could stand as the briefing to the state

supreme court. Appen. infra 37a. In light of the fact that

the brief of neither the guardian, nor the guardian ad

litem, supported the trial court’s decision, on September

19, 1996, the Wisconsin Supreme Court sua sponte or-

dered the appointment of a respondent-designate, Howard

B. Eisenberg, to appear on behalf of the circuit court’s de-

cision. Appen. infra 36a. On November 20, 1996, the

Wisconsin Supreme Court ordered that the parties be

realigned to show the guardian ad litem as an appellant,

along with the guardian, versus the respondent-designate.

The parties subsequently submitted additional briefing and

oral argument to the Wisconsin Supreme Court. Appen.

infra 35a.

On June 12, 1997, the Wisconsin Supreme Court af-

firmed the trial court’s decision. Appen. infra 1a-34a. In

its ruling, the Wisconsin Supreme Court affirmed its posi-

tion that incompetents have a constitutionally protected

right to refuse unwanted medical treatment, including nu-

trition and hydration, and that this right may be exercised

by the incompentent’s guardian utilizing a best interests

analysis. Appen. infra 5a-7a. Where the incompetent is

not in a persistent vegetative state, however, the Wisconsin

court held that, “as a matter of law, it is not in the best

interests of the ward to withdraw life-sustaining treatment,

including a feeding tube, unless the ward has executed an

advance directive or other statement clearly indicating his

or her desires.” Appen. infra 8a-9a. The Wisconsin Su-

preme Court’s rationale for drawing a bright line rule

separating incompetents in a persistent vegetative state

from incompetents who are not persistently vegetative was

its fear of falling down a confusing “slippery slope” toward

legalized euthansia. Appen. infra 9a-10a. Accordingly,

the court found that the state’s interest in the preservation

of life could not be outweighed by the constitutional rights

of a non-vegetative incompetent person in circumstances

such as those endured by Edna. Appen. infra 10a-11a.

REASONS FOR GRANTING THE PETITION

Before and since this Court’s decision in Cruzan v. Di-

rector, Missouri Department of Health, 497 U.S. 261

(1990), numerous state courts have confronted the pro-

foundly challenging issues surrounding treatment decision-

making for severely and permanently ill, incompetent pa-

tients. Various state courts, including the Wisconsin

Supreme Court, have concluded that the right to refuse

unwanted treatment applies to both competent and in-

competent individuals,’ and that the “best interests” stand-

1 See In re Conroy, 98 N.J. 321, 359, 486 A.2d 1209, 1229 (1985):

In re Roche, 296 N.J. Super. 583, 588, 687 A.2d 349, 351 (1996):

Foody v. Manchester Mem. Hosp., 40 Conn. Supp. 127, 133, 482

A.2d 713, 718 (1984); In re Torres, 357 N.W. 2d 332, 339 (Minn.

1984) ; John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452

So. 2d 921, 923 (Fla. 1984); In re Barry, 445 So. 2d 365, 370 (Fla.

App. 2d Dist. 1984) ; In re Colyer, 99 Wash. 2d 114, 124, 660 P.2d

738, 744 (1983) ; In re Severns, 425 A.2d 156, 159 (Del. Ch. 1980) ;

ard should be applied when deciding whether to withdraw

treatment from an incompetent patient if evidence of the

patient’s preferences is lacking.”

Application of the best interests standard in treatment

termination decisions for incompetent patients who have

not previously documented their health care preferences

is an issue not addressed in Cruzan, not uniformly ad-

dressed in state law, and of profound importance to count-

less patients and their loved ones nationwide. The deci-

sion of the Wisconsin Supreme Court, which precludes a

best interests determination to withhold or withdraw treat-

ment for incompetent persons who are not persistently

vegetative, directly conflicts with state supreme court de-

cisions and/or legislation in New Jersey, Arizona, Wash-

ington, Georgia, Maryland and Oregon, and it deprives

incompetents of their substantive due process liberty in-

terestS and their constitutional right to equal protection.

The sharp conflict in state law throughout the country,

Wisconsin’s improper disparate treatment of incompetent

persons, and the wrenching urgency of providing clear and

equitable guidance to those entrusted with decision making

for incompetent and seriously ill individuals, warrants im-

mediate review by this Court.

I. THE DECISION BELOW CONFLICTS WITH DECI-

SIONS OF OTHER STATE SUPREME COURTS

AND WITH VARIOUS STATE STATUTES

In In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985),

the New Jersey Supreme Court held that life-sustaining

Superintendent of Belchertown State School v. Saikewicz, 373 Mass.

728, 736, 744, 370 N.E.2d 417, 423, 427 (1977); In re Quinlan, 70

N.J. 10, 41, 355 A.2d 647, 664, cert. denied, 429 U.S. 922 (1976);

Rasmussen v. Fleming, 154 Ariz. 207, 219, 741 P.2d 674, 686 (1987) ;

In re L.H.R., 253 Ga. 439, 440, 445, 321 S.E.2d 716, 718, 722

(1984) ; Mack v. Mack, 329 Md. 188, 211, 618 A.2d 744, 756 (1993);

In re L.W., 167 Wis. 2d 53, 73-74, 482 N.W.2d 60, 67 (1992).

2 Rasmussen, 154 Ariz. at 222, 741 P.2d at 689 (1987); Barber

v. Superior Court, 147 Cal. App. 3d 1006, 1021, 195 Cal. Rptr. 484,

493 (1983); Foody, 40 Conn. Supp. at 139, 482 A.2d at 721 (1984);

In re L.W., 167 Wis. 2d at 74-76, 482 N.W.2d at 68 (1992).

——————eEEEEE—————EEEE

treatment may be withheld or withdrawn from an incompe-

tent patient who is not in a persistent vegetative state if

either of two “best interest” tests—a limited or pure ob-

jective test—is satisfied. Conroy, 98 N.J. at 387, 486

A.2d at 1244. The New Jersey Supreme Court’s holding

reversed the state court appellate decision, which had held

that the right to terminate life-sustaining treatment based

on a guardian’s judgment was limited to incurable and

terminally ill patients who are brain dead, irreversibly com-

atose, or vegetative. See In re Conroy, 190 N.J. Super.

453, 469, 464 A.2d 303, 312 (1983). The Conroy Court

explicitly acknowledged that its holding broadened the

applicability of principles it had enunciated in its previous

Quinlan decision, which dealt with treatment decision-

making for a specific category of patients—i.e., those in

a persistent vegetative state. Conroy, 98 N.J. at 358-362,

486 A.2d at 1228-39 citing In re Quinlan, 70 N.J. 10, 355

A.2d 647, cert. denied, 429 U.S. 922 (1976). The New

Jersey Court held:

Under ‘the limited-objective test, life-sustaining treat-

ment may be withheld or withdrawn from a patient

in Claire Conroy’s situation [i.e. confined to bed,

incontinent, unable to speak, suffering with arterio-

sclerotic heart disease, hypertension, diabetes mel-

litus, and an eye problem, but able to interact with

her environment in some limited ways and not in a

chronic vegetative state] when there is some trust-

worthy evidence that the patient would have refused

the treatment, and the decision maker is satisfied that

it is clear that the burdens of the patient’s continued

life with the treatment outweigh the benefits of that

life for him. ~

Conroy, 98 N.J. at 365, 486 A.2d at 1232. The Court

added that if there is no evidence that the patient would

have declined the treatment:

life-sustaining treatment may still be withheld or

withdrawn if a pure-objective test is satisfied. Under

that test, . . . the net burdens of the patient’s life

with the treatment should clearly and markedly out-

weigh the benefits that the patient derives from life.

Further, the recurring, unavoidable and severe pain

of the patient’s life with the treatment should be such

that the effect of administering life-sustaining treat-

ment would be inhumane.

Id., 98 N.J. at 366, 486 A.2d at 1232.

The New Jersey Supreme Court explicitly acknowledged

that “for some incompetent patients it might be impossible

to be clearly satisfied as to the patient’s intent either to

accept or reject the life-sustaining treatment.” Jd. at 363,

486 A.2d at 1231. Nonetheless, the New Jersey Court

refused “to foreclose the possibility of humane actions,

which may involve termination of life-sustaining treatment,

for persons who never clearly expressed their desires about

life-sustaining treatment but who are now suffering a

prolonged and painful death.” Jd.

More recently, the Supreme Court of Georgia reaffirmed

that the right to refuse treatment is not lost because of the

inability or failure to have left prior treatment directives.

In In re Jane Doe, 262 Ga. 389, 391, 418 S.E.2d 3, 5

(1992), the Georgia court upheld the authority of parents

to exercise the right to refuse treatment on behalf of their

child, on the grounds that parents’ “natural bonds of af-

fection” lead them “to act in the best interests of their

children.” IJd., 262 Ga. at 392, n.6, 415 S.E.2d 3, n.6.

The Court expressly rejected arguments that this right to

refuse treatment should be limited to circumstances where

the incompetent patient is in a persistent vegetative state,

asserting, “while medical technology and society’s under-

standing of death and dying continue to evolve and change,

we cannot mandate a single static formula for deciding

when deescalation of medical treatment may be appropri-

ate. Rather, we endorse the view that medical decision

making for incompetent patients is most often best left to

the patient’s family (or other designated proxy) and the

medical community.” 7d.

In Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674

(1987), the Arizona Supreme Court held that: a) the “best

interests” standard should be used to guide treatment de-

cisionmaking where no reliable evidence of the incompe-

tent patient’s intent exists; and b) under the best interests

standard, the surrogate decisionmaker “assesses what medi-

cal treatment would be in the patent’s best interests as

determined by such objective criteria as relief from suf-

fering, preservation or restoration of functioning, and

quality and extent of sustained life. . . . ‘An accurate as-

sessment will encompass consideration of the satisfaction

of present desires, the opportunities for future satisfactions,

and the possibility of developing or regaining the capacity

for self-determination.’” Jd., 154 Ariz. at 222, 741 P.2d

at 689 [citations omitted]. The patient’s guardian in Ras-

mussen sought to terminate the patient’s artificial nutrition

and to secure “do not resuscitate” and “do not hospitalize”

orders for the patient. /d., 154 A.2d at 211, 741 P.2d at

678. While Ms. Rasmussen was persistently vegetative,

the Arizona court did not limit the application of the best

interests criteria to persons in a persistent vegetative state.

Rather, it recognized that its criteria would govern future

cases, and it clearly delineated best interest factors which

apply to conditions other than persistent vegetative state.

Id., 154 Ariz. at 222, 224, 741 P.2d at 689.

The Washington Supreme Court, in In re Grant, 109

Wash. 2d 545, 747 P.2d 445 (1987), modified 757 P.2d

534 (1988), adopted similar factors for consideration in

making a best interests treatment termination determina-

tion. The Washington court held that in evaluating

whether an incompetent patient’s best interests would be

furthered by treatment termination, decisionmakers are to

consider:

the patient’s present level of physical, sensory, emo-

tional, and cognitive functioning; the degree of physi-

cal pain resulting from the medical condition, treat-

ment, and termination of the treatment, respectively;

the degree of humiliation, dependence, and loss of

dignity probably resulting from the condition and

treatment; the life expectancy and prognosis for re-

covery with and without treatment . . . and the risks,

side effects, and benefits of each of those options.

Grant at 568, 747 P.2d at 457, quoting Conroy, 98 N.J.

at 397, 486 A.2d at 1231. The Grant decision does not

require the patient to be in a persistent vegetative state for

treatment termination based on best interests. Rather, it

permits the incompetent individual’s guardian to apply the

best interests analysis where the “patient is in an advanced

stage of a terminal and incurable illness and is suffering

severe and permanent mental and physical deterioration.”

Grant, 109 Wash. 2d at 568, 747, P.2d at 457.°

In addition, Maryland and Oregon have enacted legis-

lation that allows an incapacitated patient’s surrogate de-

cisionmaker to direct the withdrawal or withholding of

life-sustaining treatment, on the basis of the patient’s best

interests, in conditions other than persistent vegetative

state. Maryland’s Health Care Decision Act accommo-

dates “best interest” treatment decisions for incompetents

by surrogates where the wishes of the patient are unclear

or unknown, with “best interest” defined as follows:

(e) Best interest.—“Best interest” means that the

benefits to the individual resulting from a treatment

outweigh the burdens to the individual resulting from

that treatment, taking into account:

3 Other lower state courts, absent direction from this Court and

their own higher state courts, have also concluded that the best

interests standard for treatment decision making is appropriately

applied in circumstances not limited to persistent vegetative state.

See In re C.A., 236 Ill. App. 3d 594, 603 N.E.2d 1171 (1992) (uphold-

ing guardian’s right to authorize “do not resuscitate” order on basis

of “best interests” standard for infant who was not in a persistent

vegetative state, who suffered from interventricular hemorrhages,

was HIV infected and developmentally delayed and had a terminal

bowel infection, but was fully conscious and aware of her surround-

ings); In re Rosebush, 195 Mich. App. 675, 491 N.W.2d 633 (1992)

(holding that the best interests approach should govern decisions

to withdraw life-sustaining measures from never competent patients

and applying the guidelines set forth Jn re Grant, supra).

(1) The effect of the treatment on the physical.

emotional, and cognitive functions of the indi-

vidual;

(2) The degree of physical pain or discomfort

caused to the individual by the treatment, or the

withholding or withdrawal of the treatment;

(3) The degree to which the individual’s med-

ical condition, the treatment, or the withholding

or withdrawal of treatment result in a severe

and continuing impairment of the dignity of the

individual by subjecting the individual to the

condition of extreme humiliation and depend-

ency;

(4) The effect of the treatment on the life ex-

pectancy of the individual;

(5) The prognosis of the individual for recov-

ery, with and without the treatment;

(6) The risks, side effects, and benefits of the

treatment or withholding or withdrawal of the

treatment; and

(7) The religious beliefs and basic values of the

individual receiving treatment, to the extent

these may assist the decision maker in deter-

mining best interest.

Md. Code Ann., [Health-Gen.] § 5-601(e) (1996). See

also Md. Code Ann., [Health-Gen.] §§ 5-605(a) (2) (1)-

(v), 5-605(c).

Similarly, Oregon’s statutory law allows surrogates to

direct the withholding or withdrawing of life sustaining

treatment not only for patients in persistent vegetative

states, but for those who have a terminal condition, those

for whom life-sustaining procedures would provide no

benefit but would cause permanent and severe pain, and

those who have a “fatal, advanced progressive illness” such

that the illness:

will be fatal and is in an advanced stage, [and] the

person is consistently and permanently unable to

communicate by any means, swallow food and water

safely, care for the person’s self and recognize the

person’s family and other people, and it is very un-

likely that the person’s condition will substantially

improve.

Or. Rev. Stat. § 127.635(d) (1996). See Or. Rev. Stat.

§ 127.635(1)(a)-(d) (1996).

In contrast to the foregoing court decisions and state

statutes, the Wisconsin Supreme Court held that, “as a

matter of law”, if an incompetent person is not in a per-

sistent vegetative state, the withdrawal of life-sustaining

treatment, including a feeding tube, can only be in the

incompetent’s best interests if the incompetent “has exe-

cuted an advance directive or other statement clearly in-

dicating his or her desires.” Appen. infra 17a. This

overly rigid definition of the “best interests” standard guts

its intended utility in guiding treatment decisionmaking

for incompetent patients by foreclosing reference to objec-

tive, societally shared criteria when the patient’s prefer-

ences are not discernable. Moreover, it expressly deprives

patients who have always been incompetent, and who

could not have executed an advance directive or other

clear indication of their desires, of the right to be free

from unwanted treatment.

Under the Wisconsin Supreme Court’s “best interests”

approach, for a patient who is not persistently vegetative,

the interest in maintaining physiological life as long as

medically possible always trumps other interests. Consid-

eration of factors such as relief of pain and discomfort,

prospects for restored functioning, and the intrusiveness

of the treatment is precluded. Yet, as recognized by the

courts of other states, case-by-case analysis of these fac-

tors is exactly what is envisioned by the best interests

analysis, because requiring some individuals to remain in

hopeless conditions of irreversible illness and pain not

only violates their best interests, it is inhumane and vio-

lative of their federal constitutional substantive due

process rights.

The conflict of authority among jurisdictions indicates

that the lower courts and state legislatures are engaged

in a profound struggle to come to a full understanding of

the precedent established by this Court in Cruzan. On

account of these conflicting state court holdings and laws,

protection of incompetent persons’ constitutional liberty

interests to be free from unwanted treatment depends upon

the state in which they are found. Resolution of this con-

flict requires immediate review by this Court.

II. THE DECISION BELOW CONFLICTS WITH DECI-

SIONS OF THIS COURT AND VIOLATES THE

EQUAL PROTECTION CLAUSE

This Court has long protected the individual’s right to

“the possession and control of his own person.” Union

Pacific R. Co. v. Botsford, 141 U.S. 250 (1891).* With

specific respect to the right to control one’s course of med-

ical treatment, in Cruzan v. Director, Missouri Depart-

ment of Health, 497 U.S. 261 (1990), this Court stated

that: “[t]he principle that a competent person has a con-

stitutionally protected liberty interest in refusing unwanted

medical treatment may be inferred from our prior deci-

sions.” Cruzan at 278.

Moreover, the holdings of this Court support the no-

tion that an individual’s incompetence does not diminish

this liberty interest. See Youngberg v. Romeo, 457 US.

307, 315-316, 319 (1982) (holding that severely re-

tarded minor’s liberty interests in safety, freedom from

bodily restraint, and reasonable training survive involun-

tary commitment); Parham v. J.R., 442 U.S. 584, 600

(1979) (recognizing a child’s substantial liberty interest

in not being confined unnecessarily for medical treat-

ment); Jackson v. Indiana, 406 U.S. 715, 730, 738

*See also Skinner v. Oklahoma, 316 U.S. 535, 541-43 (1942)

(prohibiting state from controlling, by sterilization, which convicts

might reproduce) ; Rochin v. California, 342 U.S. 165, 172 (1952):

Schmerber v. California, 384 U.S. 757, 772 (1966) (“The integrity

of an individual’s person is a cherished value of our society.”) ;

Mills v. Rogers, 457 U.S. 291, 294 n.4 (1982) (“[T]he right to

refuse any medical treatment emerged from the doctrines of trespass

and battery, which were applied to unauthorized touchings by a

physician.”’).

(1972) (holding that Indiana could not violate due

process and equal protection rights of a mentally retarded

deaf mute by committing him for an indefinite amount of

time simply because he was incompetent to stand trial on

the criminal charges filed against him). For incompetent

individuals, the question is not whether such liberty in-

terests exist; it is how such interests are to be protected.

As this Court explained in Thompson v. Oklahoma, 487

U.S. 815, 825 n.23 (1988), “Children, the insane, and

those who are irreversibly ill with loss of brain function,

for instance, all retain ‘rights’ to be sure, but often such

rights are only meaningful as they are exercised by agents

acting with the best interests of their principals in mind.”

The Wisconsin Supreme Court has ruled that all incom-

petent persons who are not in a persistent vegetative state

simply lose their constitutionally protected liberty interest

in making choices about their medical treatment, except

in those rare cases where they have left prior directives.®

Guardians and loved ones of these Wisconsin individuals

are now precluded from making a treatment decision, to-

gether with health care providers, that would refiect the

patient’s interests more closely and serve the patient’s best

interests more effectively than would a purely techno-

logical decision to do whatever is possible. Yet, incom-

petents in Wisconsin who are in a persistent vegetative

state and never left prior directives, never made clear

treatment preference statements, never exhibited conduct

upon which a substituted judgment could be made, or

never were competent, retain their right to refuse or cease

unwanted life-sustaining medical treatment, as exercised

by their guardians on the basis of their best interests. See

L.W., 167 Wis. 2d at 74-76, 78, 482 N.W.2d at 67-68, 70.

5 One court advanced the following in explaining why only so few

persons have executed advance directives: “The typically human

characteristics of procrastination and reluctance to contemplate the

need for .. . arrangements [such as advance directives] . . . makes

[such documents] a tool which will all too often go unused by those

who might desire it.” Barber v. Superior Court, 147 Cal. App. 3d

1006, 1015, 195 Cal. Rptr. 484, 489 (1983).

Tepe tere

The Equal Protection Clause of the 14th Amendment

commands that no state shall “deny to any person within

its jurisdiction the equal protection of the laws.” Classifi-

cation in legislation or state court action that impinges

on “basic civil rights” is subject to “strict scrutiny”,

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and can

be upheld only if it serves a compelling state interest.

Cleburne v. Cleburne Living Center, 473 US. 432, 440

(1985). The Wisconsin Supreme Court’s decision cannot

survive such scrutiny—indeed, it cannot survive the less

restrictive rational relationship test. Jd., 473 U.S. at 442.

Wisconsin law recognizes that for incompetents in a

persistent vegetative state, the existence and viability of

their constitutional liberty interest to be free from un-

wanted treatment “does not hinge upon its prescient exer-

cise, nor is it extinguished when one is adjudged incom-

petent.” L.W., 167 Wis. 2d at 74, 482 N.W.2d at 67.

It also recognizes that the failure of a person to have made

an advance directive “is not a decision to accept all treat-

ment, [and that] society’s increasing ability to prolong the

dying process [should not] make it one,” and further that

“[t]he right to refuse unwanted treatment must also ex-

tend to those who have never been competent. J/d., 167

Wis. 2d at 75, 482 N.W.2d at 68.

Yet, the Wisconsin Supreme Court now completely ex-

cludes the exercise of guardian discretion in treatment de-

cisionmaking for patients who are seriously ill but not

persistently vegetative and who did not, or could not,

leave clear prior directives. For all children and mentally

disabled patients who, by definition, could not have formu-

lated treatment directives, and for the vast majority of

how-incompetent seriously ill adults who did not leave

such directives, treatment must be provided and may not

be withdrawn regardless of decisionmakers’ good faith

analysis of the benefits and burdens of that treatment for

the patient. Ironically, adequately protecting the liberty

interests of this patient group, as compared to patients in

persistent vegetative state, is more dependent on case-by-

Case consideration of treatment benefits and burdens, be-

cause unlike individuals in persistent vegetative state, these

patients do feel the pain and discomfort of medical proce-

dures, and they may sense the humiliation and intrusive-

ness of treatment.® Under the Wisconsin Supreme Court’s

rule, though, this patient group is denied the right to in-

dividualized assessment by their guardians and loved ones

as to whether continued treatment will be in their best

interests. Instead, “as a matter of law”, they are forced

to endure continued application of all life-sustaining treat-

ment regardless of the pain, suffering and humiliation it

may cause.

III. THIS CASE PRESENTS PUBLIC POLICY ISSUES

OF NATIONAL IMPORTANCE

Medical advances have dramatically altered physiologi-

cal conditions of both life and death. While scientific and

technological capabilities now offer new possibilities of

cure, for some severely ill patients, “medical technology

has effectively created a twilight zone of suspended ani-

mation where death commences while life, in some form,

continues.” Rasmussen, 154 Ariz. at 211, 741 P.2d at

678. Many individuals want no part of a life sustained

only by medical technology. If a guardian can never rec-

ommend treatment termination for a ward who is not per-

manently vegetative (unless, as is rare, the patient left a

clear prior directive), physicians will be less likely to treat

incompetent wards aggressively while there is still hope

of recovery, and guardians will be less likely to authorize

such aggressive treatment. As explained by the President’s

Commission for the Study of Ethical Problems in Medicine

and Biomedical and Behavioral Research: “[A]n even

more troubling wrong occurs when a treatment that might

save life or improve health is not started because the health

care personnel are afraid that they will find it very difficult

to stop treatment if, as is fairly likely, it proves to be of

6 Patients in persistent vegetative state are completely incapable

of participating in or recognizing their environment. They have no

cognitive abilities and only the most primitive ability to respond to

stimuli. See In re L.W., 167 Wis. 2d-53, 482 N.W.2d 60 (1992).

little benefit and greatly burdens the patient.”* The Con-

roy court, too, recognized that family and doctors may be

discouraged, on account of inability to later stop life sup-

port measures, from “even attempting certain types of care

[which] could thereby force them into hasty and premature

decisions to allow a patient to die.” In re Conroy, 98 N.J.

3d 321, 370, 486 A. 2d 1209, 1234 (1985).

The incidence of this barrier to treatment initiation will

vary, State by state, on account of the current divergence

among the states regarding application of the “best inter-

ests” standard for terminating treatment for patients who

are not persistently vegetative. In addition, families and

care givers who have authorized treatment for incompetent

patients in some states will be faced with the horrible, yet

real, prospect that the only way to protect their incompe-

tent loved ones’ best interests is to move them to a state

that honors their constitutional liberty interests to ter-

minate treatment.

The issues surrounding “best interests” treatment de-

cisionmaking for hopelessly ill, incompetent patients pres-

ent constantly changing and challenging variables, as

science and technology push back the threshold of our

knowledge. The states need uniform guidance from this

Court on these issues, because proper resolution hinges

upon the nature and strength of individuals’ federal con-

Stitutional liberty interests.

CONCLUSION

For all of the foregoing reasons, the petition for a writ

of certiorari should be granted.

7 President’s Commission for the Study of Ethical Problems in

Medicine and Biomedical and Behavioral Research, Deciding to

Forego Life-Sustaining Treatment at 75 (1983).

* Counsel of Record

Respectfully submitted,

ROBYN S. SHAPIRO *

MIRIAM S. FLEMING

MICHAEL, BEST & FRIEDRICH LLP

100 East Wisconsin Avenue

Suite 3300

Milwaukee, Wisconsin 53202

(414) 271-6560

Attorneys for Petitioner

APPENDIX

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APPENDIX

SUPREME COURT OF WISCONSIN

No. 95-2719

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE

PLACEMENT OF EDNA M.F. BETTY SPAHN, GUARDIAN

OF EpDNA M.F. AND MARK WITTMAN, GUARDIAN AD

LITEM FOR EDNA M.F.,

; Appellants,

HOWARD B. EISENBERG,

Respondent-Designate.

Argued Jan. 8, 1997

Decided June 12, 1997

DONALD W. STEINMETZ, Judge.

Betty Spahn (Spahn) seeks review of a decision by

the Circuit Court for Wood County, Judge Dennis D.

Conway, denying her request to withdraw artificial nutri-

tion from her sister, Edna M.F. The court held that it

was without authority to grant Spahn’s request because

Edna is not in a persistent vegetative state. This case

presents this court with two issues:

1) Whether the guardian of an incompetent person

who has not extended an advance directive and is

not in a persistent vegetative state has the authority

to direct withdrawal of life sustaining medical treat-

ment from the incompetent person; and

2) Whether in this case, notwithstanding the fact

that she is not in a persistent vegetative state, there is

a clear statement evidenced in the record of Edna’s

desire to die rather than have extreme measures

applied to sustain her life under circumstances such

as these.

Relying on this court’s previous decision in In re Guard-

ianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992),

we hold that a guardian may only direct the withdrawal of

life-sustaining medical treatment, including nutrition and

hydration, if the incompetent ward is in a persistent

vegetative state and the decision to withdraw is in the best

interests of the ward. We further hold that in this case,

where the only indication of Edna’s desires was made at

least 30 years ago and under different circumstances, there

is not a clear statement of intent such that Edna’s guardian

may authorize the withholding of her nutrition.

Edna M.F. is a 71-year old woman who has been

diagnosed with dementia of the Alzheimer’s type. She is

bedridden, but her doctors have indicated that she re-

sponds to stimulation from voice and movement. She

also appears alert at times, with her eyes open, and she

responds to mildly noxious stimuli.. According to these

doctors, her condition does not meet the definition of a

persistent vegetative state. In 1988, a permanent feeding

tube was surgically inserted in Edna’s body. Edna cur-

rently breathes without a respirator, but she continues

to receive artificial nutrition and hydration. Edna’s con-

dition is not likely to improve.

Edna’s sister and court-appointed guardian, Betty

Spahn, seeks permission to direct the withholding of Edna’s

nutrition, claiming that her sister would not want to live

in this condition. However, the only testimony presented

at trial regarding Edna’s views on the use of life-sustaining

medical treatment involves a statement made in 1966 or

1In his testimony at trial, Dr. John Przybylinski, one of Edna

M.F.’s doctors, described the mildly noxious stimuli as “either pinch-

ing her arm or her leg or rubbing her sternum.”

1967. At that time, Spahn and Edna were having a con-

versation about their mother, who was recovering from

depression, and Spahn’s mother-in-law, who was dying of

cancer. Spahn testified that during this conversation, Edna

said to her: “I would rather die of cancer than lose my

mind.” Spahn further testified that this was the only time

that she and Edna discussed the subject and that Edna

never said anything specifically about withholding or with-

drawing life-sustaining medical treatment.

In October of 1994, the Ethics Committee at the Marsh-

field Nursing and Rehabilitation, the facility where Edna

lives, met to discuss the issue of withholding artificial

nutrition from Edna. The committee approved the with-

holding of the nutrition if no family member objected.

However, one of Edna’s nieces refused to sign a state-

ment approving the withdrawal of nutrition.

On January 12, 1995, Spahn filed a petition in Wood

County Circuit- Court as guardian of an incompetent

person, Edna M.F., asking the court to issue an order

confirming Spahn’s decision to withhold nutrition from

Edna. On January 13, 1995, the court appointed Mark

Wittman (Wittman) as the guardian ad litem. The court

denied Spahn’s petition. The case is now before this court

on a petition to bypass the court of appeals. However,

because both Spahn and Wittman are arguing to withhold

nutrition, this court has appointed Attorney Howard Eisen-

berg as respondent-designate to argue for sustaining the

life of Edna M.F.

The issue of the right to terminate life-sustaining medi-

cal treatment first came to the national forefront in the

controversial case In re Quinlan, 70 N.J. 10, 355 A.2d

647 (1976), cert. denied sub nom., 429 U.S. 922, 97

S.Ct. 319, 50 L.Ed.2d 289 (1976). In Quinlan, Joseph

Quinlan petitioned the court to be appointed guardian of

his 21-year old daughter, Karen. Karen was in a chronic

persistent vegetative state® and her father sought the ex-

press power to authorize “the discontinuance of all ex-

traordinary medical procedures now allegedly sustaining

Karen’s vital processes and hence her life... .” Id. 355

A.2d at 651. Because Karen existed in a persistent vege-

tative state, and there was no hope of her ever recovering

from this state, the court granted Joseph Quinlan’s re-

quests. Id. 355 A.2d at 671-72.

Fourteen years later, the United States Supreme Court

considered whether the state of Missouri could require

clear and convincing evidence of an incompetent’s wishes

before authorizing the withdrawal of life-sustaining medi-

cal treatment, including nutrition and hydration, when the

incompetent is in a persistent vegetative state. Cruzan

v. Director, Missouri Department of Health, 497 U.S.

261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). In

making its decision, the Court determined that the states

have an interest in protecting the lives of their citizens

and that that interest is demonstrated, among other ways,

“by treating homicide as a serious crime.” Id. at 280,

110 S.Ct. at 2852. On the other hand, the Court notes

that “[i]t cannot be disputed that the Due Process Clause

protects an interest in life as well as an interest in refusing

life-sustaining medical treatment.” Id. at 281, 110 S.Ct.

at 2853. The Court concludes that the rights of the state

2[r. Fred Plum, the doctor who created the term, defined a

person in a persistent vegetative state “as a subject who remains

with the capacity to maintain the vegetative parts of neurological

function but who . .. no longer has any cognitive function.”

Quinlan, 355 A.2d at 654. Cognitive function can be best understood

as “either self-awareness or awareness of the surroundings in a

learned manner.” See In re Jobes, 108 N.J. 394, 529 A.2d 434, 438

(1987).

’ The Court in Cruzan defined persistent vegetative state as “a

condition in which a person exhibits motor reflexes but evinces no

indications of significant cognitive function.” Cruzan v. Director,

Missouri Department of Health, 497 U.S. 261, 266. 110 S.Ct. 2841,

2845, 111 L.Ed.2d 224 (1990).

and the individual must be balanced: “we think a State

may properly decline to make judgments about the ‘qual-

ity’ of life that a particular individual may enjoy, and

simply assert an unqualified interest in the preservation

of human life to be weighed against the constitutionally

protected interests of the individual.” Id.

The Court upheld the decision of the Missouri Supreme

Court to require that a guardian meet a “clear and con-

vincing” standard before terminating an incompetent’s life-

sustaining medical treatment, including artificial nutrition

and hydration.* The Court explained that these life-and-

death decisions have great consequences, and that an

erroneous decision to terminate cannot be remedied:

An erroneous decision not to terminate results in

a maintenance of the status quo; the possibility of

subsequent developments such as advancements in

medical science, the discovery of new evidence re-

garding the patient’s intent, changes in the law, or

simply the unexpected death of the patient despite

the administration of life-sustaining treatment at least

create the potential that a wrong decision will eventu-

ally be corrected or its impact mitigated. An errone-

ous decision to withdraw of life-sustaining treatment,

however, is not susceptible to correction.

Id. at 283-84, 110 S.Ct. at 2854.

Two years after the Cruzan decision was rendered,

this court was faced with a similar case, In re Guardian-

ship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992).

In L.W., this court considered the issue of whether an

incompetent individual in a persistent vegetative state

*We note here that the Cruzan Court did not decide that the

liberty interest in refusing life-sustaining medical treatment in-

cludes the right to refuse nutrition and hydration. The Court merely

assumed so for the purposes of ruling on the proper evidentiary

standard in the case. See In re Guardianship of L.W., 167 Wis.2d

53, 71, 482 N.W.2d 60 (1992).

has the right to refuse life-sustaining medical treatment,

including nutrition and hydration. The court further con-

sidered whether a court-appointed guardian may exercise

that right on behalf of the incompetent patient. This court

began its analysis of the situation with an exploration of

the possible constitutional rights implicated by these cir-

cumstances, and concluded “that an individual’s right to

refuse unwanted medical treatment emanates from the

common law right of self-determination and informed

consent, the personal liberties protected by the Fourteenth

Amendment, and from the guarantee of liberty in Article

I, section I of the Wisconsin Constitution.” Id. at 67,

482 N.W.2d 60.

This court further concluded that the right to refuse

unwanted treatment applies to both competent and incom-

petent individuals, and that the right of the incompetent

to refuse may be exercised by his or her guardian. Id.

at 73, 76, 482 N.W.2d 60. The court in L.W. then faced

the choice of what standard the guardian should apply in

determining whether to continue life-sustaining medical

treatment. The guardian argued for a subjective test con-

sidering the ward’s past values, wishes, and beliefs (the

“substituted judgment” standard), and the guardian ad

litem argued in favor of the standard upheld in Cruzan

requiring “clear and convincing evidence” of the ward’s

desires. Noting that this court has rejected the substi-

tuted judgment standard in the past® and that the clear

and convincing evidence standard would be too strict, this

court concluded that an objective “best interests” standard

5In the case of In re Guardianship of Pescinski, 67 Wis.2d 4,

7-8, 226 N.W.2d 180 (1975), this court held that a guardian must

act under the “best interests” standard with respect to the ward,

and the court explicitly declined to adopt the “substituted judgment”

standard.

In the case of In re Guardianship of Eberhardy, 102 Wis.2d 539,

307 N.W.2d 881 (1981), the court again chose to apply the “best

interests” standard to the guardian-ward relationship. See Id., at

566, 567. 307 N.W.2d 881.

was the appropriate standard to apply when deciding

whether to withdraw life-sustaining medical treatment

from an incompetent ward in a persistent vegetative state.

Id. at 76, 78, 81, 482 N.W.2d 60. The only thing that

matters in the decision-making process is what would be

in the ward’s best interests. Of course, the court noted,

if the wishes of the ward are clearly evidenced, then it is

in the best interests of the ward to have his or her wishes

honored. Id. at 79-80, 482 N.W.2d 60.

In sum, this court concluded in L.W. “that an incompe-

tent individual in a persistent vegetative state has a con-

stitutionally protected right to refuse unwanted medical

treatment, including artificial nutrition and hydration,” and

that a guardian may consent to withholding or withdrawal

of such treatment without prior approval of the courts if

to do so is in the “best interests” of the ward. Id. at 63,

482 N.W.2d 60. However, this court stressed the fact

that the opinion in L.W. “is limited in scope to persons

in a persistent vegetative state.” Id.

Spahn asks this court to extend L.W. beyond its current

scope to include incompetent wards who are not in a per-

sistent vegetative state. Spahn notes that in L.W., this

court concluded that the right to refuse unwanted medical

treatment applies to competent and incompetent people

alike, even if there has been no advance directive on the

part of the incompetent ward.

In the case In re Guardianship of Eberhardy, 102

Wis.2d 539, 307 N.W.2d 881 (1981), this court was

faced with the request to authorize a guardian of an

incompetent to consent to the sterilization of the incompe-

tent, a mentally disabled woman. The guardian argued

that since the competent person has the right to steriliza-

tion, that right should not be withheld from the incompe-

tent. This court explained in Eberhardy that even though

all citizens have the same constitutional rights, the United

States Supreme Court has recognized that “the uninhibited

exercise of those rights may be hedged about with restric- -

tions that reflect the public policy of protecting persons

of a distinct class.” Id. at 572, 307 N.W.2d 881. For

example, this court notes that the Supreme Court has

recognized that the decision by a minor to have an abor-

tion could be circumscribed by action requiring a show-

ing of maturity or “best interests” to make a decision with-

out parental involvement. Id. at 572, 307 N.W.2d 881,

citing Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61

L.Ed.2d 797 (1979). Additionally, a state may require

a physician to notify a minor’s parents before agreeing to

perform an abortion. Id. at 572-73, 307 N.W.2d 881,

citing H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164,

67 L.Ed.2d 388 (1981).

The Eberhardy court proceeded to explain that the

mentally disabled are a similar class to minors in that they

are also subject to “special protections of the state” be-

cause many mentally disabled adults are “not competent to

exercise a free choice.” Id. at 573, 307 N.W.2d 881. The

court explained that “[wJhile the Constitution would gen-

erally mandate a free choice for sui juris adults, a free

choice is an empty option for those who cannot exercise

it.” Id.

This brings us to the situation at hand—whether this

court should allow surrogate decisionmakers to decide

to withhold or withdraw life-sustaining medical treatment

from an incompetent adult who is not in a persistent

vegetative state. This court in Eberhardy said that for

the purposes of sterilization, incompetent people are to

be considered “a distinct class to whom the state owes a

special concern.” Id. at 574, 307 N.W.2d 881. So, al-

though incompetent adults have the same constitutional

rights as competent adults, they do not have the same -

ability to exercise those rights. Someone must instead

act in the best interests of that person to make a decision

regarding whether to withhold or withdraw life-sustaining

treatment. However, if that person is not in a persistent

vegetative state, this court has determined that, as a matter

of law, it is not in the best interests of the ward to with-

draw life-sustaining treatment, including a feeding tube,

unless the ward has executed an advance directive or

other statement clearly indicating his or her desires.

One of the main reasons that this court in L.W. limited

the scope of its holdings is the fact that The American

Academy of Neurology explains that people in a_per-

sistent vegetative state do not feel pain or discomfort.

L.W., 167 Wis.2d at 87, note 17, 482 N.W.2d 60. In

the case at bar, Edna MLF. is not in a persistent vegeta-

tive state and could therefore likely feel the pain and

discomfort of starving to death. Even a competent per-

son cannot order “the withholding or withdrawal of any

medication, life-sustaining procedure or feeding tube” if

“the withholding or withdrawal will cause the declarant

pain or reduce the declarant’s comfort” unless the pain

or discomfort can be alleviated through further medical

means. Wis. Stat. § 154.03(1). See also Wis. Stat.

$155.20(4). In the case where withdrawal of life-sustain-

ing medical treatment, including nutrition or hydration,

will cause pain or discomfort, then, the competent and

incompetent person have exactly the same rights.°

This court has established a bright-line rule in L.W.

that the guardian of an incompetent ward possesses the

authority to direct withholding or withdrawal of life-

sustaining medical treatment, including artificial nutrition

and hydration, if it is in the best interests of the ward

and the ward is in a persistent vegetative state. Spahn

now asks this court to extend the scope of L.W. to in-

clude those incompetent patients who are afflicted with

incurable or irreversible conditions of health. -We decline

to go down this slippery slope, for the consequences and

*Of course, a competent and incompetent person always have

the same rights. See generally In re Guardianship of L.W., 167

Wis.2d 53, 73-74. 482 N.W.2d 60 (1992).

10a

the confusion may be great. One author explains as

follows:

While at first euthanasia may be institutionalized only

for those in terrible pain, or those who are terminally

ill, or those for whom it is otherwise appropriate, the

pressure of the allocation of health care resources

will inevitably enlarge the class for whom euthanasia

is deemed appropriate. Every society has a group

who are deemed to be socially unworthy and mem-

bers of that group—the uneducated, the unemployed,

the disabled, for example—will become good candi-

dates for euthanasia.

Barry R. Furrow et al., Bioethics: Health Care Law and

Ethics 325 (1991). This court has drawn a bright-line

in L.W., and we will not venture down the slippery slope

of extending it when there is insufficient evidence of the

ward’s desires.

Even though Edna M.F. is not currently existing in

a persistent vegetative state, if her guardian can demon-

strate by a preponderance of the evidence a clear state-

ment of Edna’s desires in these circumstances, then it is

in the best interests of Edna to honor those wishes.’ See

L.W., 167 Wis.2d at 79-80, 482 N.W.2d 60. The reason

this court requires a clear statement of the ward’s desires

is because of the interest of the state in preserving human

life * and the irreversible nature of the decision to with-

7 We stress that this right has been limited by the legislature in

Wis. Stat. § 154.03(1), which does not permit withdrawal of life-

sustaining medical treatment, including nutrition and hydration, if

it would cause pain or discomfort unless the pain or discomfort can

be alleviated through further medical means.

8 This court has set out the four relevant state interests that

must be considered in making decisions about medical treatment

decisions for incompetent people. These are 1) preserving life, 2)

safeguarding the integrity of the medical profession, 3) preventing

suicide, and 4) protecting innocent third parties. In re Guardian-

lla

draw nutrition from a person. This court explained the

magnitude of this type of decision as compared to other,

less permanent, decisions in Eberhardy:

Importantly, however, most determinations made in

the best interests of a child or an incompetent person

are not irreversible; and although a wrong decision

may be damaging indeed, there is an opportunity

for a certain amount of empiricism in the correction

of errors of discretion. Errors of judgment or revi-

sions of decisions by courts and social workers can,

in part at least, be rectified when new facts or second

thoughts prevail. . . . Sterilization as it is now under-

stood by medical science is, however, substantially

irreversible.

Eberhardy, 102 Wis.2d at 567-68, 307 N.W.2d 881. Like

sterilization, the decision to withdraw life-sustaining medi-

cal treatment is also not reversible, because death is not

reversible. It is for this reason, then, that we require a

guardian to show a clear statement of the ward’s desires

by a preponderance of the evidence.

We now turn to the case at bar to determine whether

there is sufficient evidence in the record to reflect a clear

Statement of desire by Edna M.F. while she was still

competent. The trial court did not make an explicit

factual finding as to whether the guardian met this bur-

den. However, it did mention in its memorandum deci-

sion that none of the witnesses who presented letters and

affidavits to the court ever discussed the matter with

Edna M.F., and that the only testimony as to Edna’s

opinions on the situation dates back to 1966 or 1967.

Generally, findings of fact shall not be set aside unless

they are clearly erroneous, Wis. Stat. § 805.17(2), but in

a situation where there are no explicit factual findings,

“this court may affirm the judgment if ‘{a] perusal of the

ship of L.W., 167 Wis.2d 53, 90, 482 N.W.2d 60. Preserving life is

the most significant state interest at issue here. See id.

12a

evidence shows that the court reached a result which the

evidence would sustain if specifically found.’” Grimh v.

Western Fire Ins. Co., 5 Wis.2d 84, 89, 92 N.W.2d 259

(1958) (citations omitted).

The record speaks very little to what Edna’s desires

would be under the current circumstances. We know

from the record that she was a vibrant woman, a gifted

journalist, and a devout Roman Catholic. We know that

she was and is loved dearly by her family and friends,

and that the majority of them feel that she “would not

want to be kept alive” in this condition. We know that

in 1966 or 1967 during a time of family crisis, she said

that she “would rather die of cancer than lose [her]

mind.” But we do not have any clear statement of what

her desires would be today, under the current conditions.

Her friends and family never had any conversations with

her about her feelings or opinions on the withdrawal of

nutrition or hydration, and she did not execute any ad-

vance directives expressing her wishes while she was

competent.

There is a presumption that continuing life is in the

best interests of the ward. L.W., 167 Wis.2d at 86, 482

N.W.2d 60. The only evidence in the record of Edna’s

desires is the general statement she made to her sister in

1966 or 1967. We understand how difficult Edna’s illness

has been on her loved ones, and we sympathize with their

plight, but the evidence contained in the record is simply

not sufficient to rebut the presumption that Edna would

choose life. A perusal of the record and the insufficiency

of the evidence contained therein supports the result the

trial court reached, even though there was no explicit

factual finding by the trial court on this issue.

In conclusion, this court declines to extend the scope

of L.W. beyond those incompetent wards who are cur-

rently in a persistent vegetative state; we will not apply

L.W. to those with incurable or irreversible conditions.

= 3s

As such, we re-affirm the decision of this court in L.W.

that the threshold at which this court will authorize the

withholding or withdrawal of life-sustaining medical treat-

ment is the point at which trained medical doctors diag-

nose a patient as being in a persistent vegetative state.

Whether or not a patient is in a persistent vegetative

State is a medical, not legal, determination. If Edna

M.F.’s doctors determine she is now in a persistent vege-

tative state and the guardian determines that it is in the

best interest of Edna, she may be authorized to withhold

nutrition and hydration. As it now stands, however, the

facts of this case do not support a finding that Edna M.F.

is in a persistent vegetative state. That is the rule of

L.W. and we decline to extend that rule.

Consequently, we hold that a guardian may only direct

the withdrawal of life-sustaining medical treatment, includ-

ing nutrition and hydration, if the incompetent ward is

in a persistent vegetative state and the decision to with-

draw is in the best interests of the ward. We further

hold that in this case, where the only indication of Edna’s

desires was made at least 30 years ago and under different

circumstances, there is not a clear statement of intent

such that Edna’s guardian may authorize the withholding

of her nutrition.

The decision of the Wood County Circuit Court is

affirmed.

SHIRLEY S. ABRAHMSON, Chief Justice (concur-

ring).

I join in the mandate. I agree that In the Matter of

Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60

(1992), should not be extended to persons not in a per-

sistent vegetative state.’

‘The guardian, the guardian ad litem, the two amici and counsel

appointed by this court to support the order of the circuit court

l4a

I write separately because I believe (1) that the major-

ity opinion’s characterization of Ms. F.’s condition is in-

complete and (2) that further discussion of the application

of L.W. to the present case is needed.

I write first to explain my disagreement with the major-

ity opinion’s characterization of some parts of the record.

The majority’s discussion of Ms. F’s condition does not

do justice to the factual record. The majority describes

Ms. F. as bedridden, responsive to stimulation and appear-

ing alert at times. Majority op. at 487. While this de-

scription is true, it conveys an inaccurate picture of Ms.

F.’s medical situation. Ms. F. breathes without assistance

but in all other respects is dependent on others for her

care and continued existence. Ms. F.’s muscles have

deteriorated to the point where her limbs are contracted

and immobile. She demonstrates no purposeful response,

such as withdrawal, to tactile, aural or visual stimuli; she

makes non-specific responses to pinching or tapping of the

arm or sternum. There is also some testimony suggesting

agree that at the time of the hearing Ms. F. was not in a persistent

vegetative state. The guardian and guardian ad litem would have

preferred that the attending doctor opine that Ms. F. was in a

persistent vegetative state because the guardian could then have

directed the withdrawal of nutrition without authorization from the

court if two independent physicians concurred in the diagnosis.

Yet the guardian accepted the diagnosis of Ms. F.’s attending

doctors at that time.

Because of the attending doctor’s diagnosis, the guardian, the

guardian ad litem and the amici came to court to urge the court

to authorize circuit courts to confirm a guardian’s decision to direct

withdrawal of nutrition from a person not in a persistent vegetative

state. Thus counsel urge us to extend In the Matter of Guardian-

ship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992). Court-appointed

counsel urges us to adhere to L.W.

The amici curiae are the Elder Law Center of the Coalition of

Wisconsin Aging Groups and the Board on Aging and Long Term

Care of the State of Wisconsin. Each filed a brief.

15a

Ms. F. occasionally may track movements in the room

with her eyes.

Two attending physicians testified; only Dr. Erickson,

however, was asked to opine on whether Ms. F. was in

a persistent vegetative state at the time of his examination

of her. Dr. Erickson testified as follows:

The definition [of persistent vegetative state] as de-

scribed in the journal of neurology in 1989, January,

1989, requires that there be no behavioral response

whatsoever over an extended period of time, and that

no voluntary action or behavior of any kind is pres-

ent. As I testified before, Edna, in my opinion, has

provided evidence of some minimal response to

stimulation from her surrounding, and so in the strict

definition, I would have to say that she approximates

but does not entirely meet that definition of the

persistent vegetative state.

R. 19 at 33.

The circuit court made the following finding of fact,

in accord with the guardian’s position and the evidence

presented: “Edna M.F. is a 71 year old woman whose

mental condition approximates but does not meet the

clinical definition of persistent vegetative state.” Given

the record in this case the circuit court’s findings that Ms.

F. is not in a persistent vegetative state is not Clearly

erroneous.”

? The majority opinion embellishes the record when it concludes

that Ms. F. could “likely feel the pain and discomfort of starving

to death.” Majority op. at 490. Dr. Erickson testified that in his

opinion Ms. F. was not experiencing any pain. R. 19 at 34, 51-52.

Dr. Przbylinski testified that he thought Ms. F. could experience

pain but that a physician could not determine this fact. R. 19 at

63, 68-69. The circuit court made no finding, expires or implied,

regarding whether Ms. F. retains sufficient cortical function to

feel pain. Retention of the feeding tube would enable the clinic

staff to continue to provide Ms, F. with fluids and, if deemed

necessary, with pain medication, while nutrition was withheld.

16a

The other important factual question is whether Ms. F.

made a clear expression of her wishes regarding life-

sustaining medical treatment. I agree with the majority

opinion that the record supports the finding that she did

not and the circuit court’s memorandum decision implies

such a finding. That finding is not clearly erroneous.

II.

I have some concern about the majority opinion’s char-

acterization of several aspects of the L.W. decision.

L.W. largely controls our decision in the present case.

L.W. held that a guardian may consent to the withholding

or withdrawal of life-sustaining medical treatment on be-

half of one who was never competent, or a once com-

petent person whose conduct was never of a kind from

which one could draw a reasonable inference upon which

to make a substituted judgment,* when: (1) the attending

physician and independent physicians determine with

reasonable medical certainty that the patient is in a per-

sistent vegetative state and has no reasonable chance of

recovery to a cognitive and sentient life; and (2) the

guardian determines in good faith that the withholding

or withdrawal of treatment is in the ward’s best interests.

L.W., 167 Wis.2d at 84-85, 482 N.W.2d 60.

I feel it necessary to state what I believe L.W. does and

does not stand for and to offer further discussion of the

application of L.W. to the facts of this case.

First, L.W. held that a person’s right to refuse life-

sustaining medical treatment includes the right to refuse

the provision of nutrition and hydration. L.W., 167

Wis.2d at 70-73, 482 N.W.2d 60.* It is therefore of no

3] agree with the majority opinion that the ward in the present

case had not made a clear expression, when competent, of her

wishes with regard to life-sustaining medical treatment.

4 Despite the objection raised in the dissenting opinion in L.W.,

167 Wis.2d at 99, 482 N.W.2d 60 (Steinmetz, J., dissenting), the

17a

moment that the United States Supreme Court “merely

assumed” this fact in Cruzan v. Director, Missouri Dep’t

of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d

221 (1990), as the majority opinion states. Majority op.

at 488 n. 4. There is no longer any doubt that the provi-

sions of nutrition and hydration by artificial means are

forms of medical treatment in Wisconsin.

Second, L.W. held that a surrogate decision maker

must apply a best interests test to determine the propriety

of withholding life-sustaining medical treatment to a per-

son who was never competent or a person whose conduct

while competent was never of a kind from which one

could draw a reasonable inference upon which to make

a substituted judgment. L.W. 167 Wis.2d at 75-76, 482

N.W.2d 60. L.W. did not establish whether a substituted

judgment test or other test is appropriate to determine the

propriety of withholding life-sustaining medical treatment

from a person who gave indication while competent of his

or her wishes regarding such treatment. Nor did L.W.

address the proper test to be used when the incompetent

person is not in a persistent vegetative state. L.W. was

concerned with a person in a persistent vegetative state

who by all indications had never been competent. There

was, therefore, no basis on which a guardian or a court

court concluded its thorough consideration of the issue as follows:

“Consistent with the implied holding of the United States Supreme

Court, and the specific declaration of the Wisconsin legislature, we

conclude that an individual’s right to refuse unwanted life-sustaining

medical treatment extends no artificial nutrition and hydration.”

L.W., 167 Wis.2d at 73, 482 N.W.2d 60. In response to the dissent-

ing opinion the L.W. majority stated:

The dissent asserts that this conclusion is ‘unwarranted and mis-

conceived’ because Cruzan did not decide the issue. .. . It is clear

that we base our conclusion that artificial nutrition and hydration

is medical treatment which may be refused primarily on the fact

that it is indistinguishable from other forms of treatment and not

on the ambivalence of the Cruzan majority.

Id. at 73 n. 7, 482 N.W.2d 60.

18a

could make a substituted judgment and only under such

circumstances did the court rule out a substituted judg-

ment test. L.W. 167 Wis.2d at 78-79 and n. 11, 482

N.W.2d 60. It would be inaccurate to conclude that

the substituted judgment test has been rejected in other

circumstances.

I take the majority opinion to imply that L.W. rejected

the substituted judgment test for all persons in a persistent

vegetative state:

Noting that this court has rejected the substituted

judgment standard in the past [citing In re Guard-

ianship of Pescinski, 67 Wis.2d 4, 7-8, 226 N.W.2d

180 (1975) and In re Guardianship of Eberhardy,

102 Wis.2d 539, 566-67, 307 N.W.2d 881 (1981)]

and that the clear and convincing evidence standard

would be too strict, this court [in L.W.] concluded

that an objective “best interests” standard was the

appropriate standard to apply when deciding whether

to withdraw life-sustaining medical treatment from

an incompetent ward in a persistent vegetative state.

[L.W., 167 Wis.2d] at 76, 78, 81, 482 N.W.2d 60.

The only thing that matters in the decision-making

process is what would be in the ward’s best interests.

Majority op. at 489. But the court in L.W., having con-

sidered the two cases cited by the majority opinion in the

present case, Pescinski and Eberhardy, stated explicitly

that substituted judgment may be the appropriate test in

some circumstances:

[N]either of these cases should be construed to mean

that a surrogate decision maker could not make a

substituted judgment or decision that was designed

to carry out the wishes of the incompetent if the

incompetent’s wishes were knowable. .. . To hold

that all substituted judgments are ipso facto rejected

would probably constitute an unconstitutional hold-

ing for it would deprive an incompetent of the con-

19a

stitutional right of choice a right that is universally

recognized when the choice is ascertainable.

L.W., 167 Wis.2d at 79 n. 11, 482 N.W.2d 60.

The court has no reason to address the appropriate test

in the present case because according to the record Ms. F.

was not in a persistent vegetative state and her wishes

were not knowable. The majority opinion therefore should

not be read to change or add to L.W.’s limited statement

regarding the appropriate test for a court or guardian tu

apply in determining the propriety of withholding life-

sustaining medical treatment.*

Third, pursuant to L.W., the court’s ruling today is

limited to Ms. F.’s condition in the spring of 1995. The

decision whether to seek additional diagnoses when this

case is completed properly belongs to the guardian and

not to the court. It is a fundamental premise of L.W. that

ordinarily decisions to withhold or withdraw life-sustaining

medical treatment of a ward are to be made by a guardian

in conjunction with doctors and the family, not by the

courts. As L.W. stated, courts are poorly equipped to

handle these matters. L.W., 167 Wis.2d at 92, 482

N.W.2d 60.

5 For discussions of the substituted judgment and best interests

tests see John A. Robertson, Cruzan and the Constitutional Status

of Nontreatment Decisions for Incompetent Patients, 25 Ga. L.Rev.

1139 (1991); Yale Kamisar, When is there a Constitutional “Right

to Die’? When is there no Constitutional “Right to Live’?, 25 Ga.

L.Rev. 1203 (1991); John A. Robertson, Assessing Quality of Life:

A Response to Professor Kamisar, 25 Ga. L.Rev.1243 (1991);

Stewart G. Pollock, Life and Death Decisions: Who Makes Them

and By What Standards?, 41 Rutgers L.Rev. 505 (1989); Nancy

K. Rhoden, Litigating Life and Death, 102 Harv. L.Rev. 375, 380

419 (1988); Joanna K. Weinberg, Whose Right Is It Anyway?

Individualism, Community, and the Right to Die: A Commentary

on the New Jersey Experience, 40 Hastings L.J. 119 (1988);

Rebecca Morgan, Florida Law and Feeding Tubes The Right of

Removal, 17 Stetson L.Rev. 109 (1987).

20a

If the guardian chooses to seek further diagnoses and

if the doctors, applying current medical knowledge, deter-

mine that Ms. F. is at the time of examination in a per-

sistent vegetative state, the guardian may consent to with-

drawal of nutrition or the guardian may decide not to

withdraw nutrition. In either event, no further circuit

court proceeding is available or required unless an inter-

ested person objects to the withdrawal of nutrition.

The diagnosis of a persistent vegetative state or its

absence is made by qualified physicians using scien-

tifically current information and standards. Guardians

and doctors must be allowed to adopt the medical com-

munity’s most advanced thinking on the subject.® It is

similarly important that physicians who are called upon

to make the apparently difficult diagnosis of a persistent

vegetative state be expert in this area of medicine. Court

review of the guardian’s determination is necessary only

if a party in interest objects. L.W., 167 Wis.2d at 92-93

and n. 20, 482 N.W.2d 60.

Fourth, the holding in L.W. should be understood to

state the principle that the fact that the ward is in a

persistent vegetative state is a significant legal threshold.

Under L.W. the opinion of an attending physician is

essential for the withdrawal of nutrition. Dr. Erickson,

one of the attending physicians, was an internist, had

extensive experience with older persons including treating

Alzheimer’s patients, and held a certificate of added quali-

fications in geriatrics. While the guardian and guardian

ad litem believe that withdrawal of life-sustaining treat-

ment for Ms. F. is appropriate, they relied on the diag-

® Unlike the other concurring opinion I do not believe this court

should determine the differences, if any, between the 1994 and

earlier medical standards about persistent vegetative state and the

appropriate medical diagnosis of persistent vegetative state without

the assistance of experts’ testimony and without briefing by

the parties.

2la

nosis of Ms. F.’s attending physicians, as they were re-

quired to do under L.W.

When the attending physician did not diagnose Ms. F.

as in a persistent vegetative state, there was no point in

consulting independent physicians. The issue of who

should be the independent physicians to diagnose Ms. F.’s

condition is thus not raised in this case and has not been

briefed by the parties. Furthermore, L.W. does not ad-

dress the difficult question of what procedure should be

followed when there is disagreement among the consulted

physicians whether the patient is in a persistent vegetative

state. Again, this questior is not raised or briefed in

this case.

To the extent it may be necessary or appropriate for

the court to change, add to, or expand upon the stand-

ards set forth in L.W., the court should do so only with

the benefit of full adversarial briefing in a case presenting

a real controversy framed by adversarial parties. See, e.g.,

State v. Garfoot, 207 Wis.2d 215, 239, 558 N.W.2d 626

(1997) (Bablitch, J., concurring).

I view L.W. as the first step in addressing withdrawal

of life-sustaining medical treatment from persons in a

persistent vegetative state who have not clearly expressed

their wishes. As is evident in this case, L.W. has not

answered all the questions that will be raised in this com-

plex and troubling area. I have tried to take care, how-

ever, not to use the present case as the vehicle to offer

answers to unresolved complex questions that have been

neither raised nor briefed. I am concerned that I not

engage in appellate decision making of the sort Attorney

Bernard Witkin has characterized as “Have Opinion, Need

Case.” B.E. Witkin, Manual on Appellate Court Opin-

ions § 86 at 155 (1977).

Fifth, L.W. commented favorably on the role of the

health care provider’s ethics committee.’ Hospital or nurs-

7L.W., 167 Wis.2d. at 89, 482 N.W.2d 60. For a discussion of

the role of ethics committees see Gregory A. Jaffe, Institutional

err

22a

ing home ethics committees provide an important forum

for careful deliberation about the decision to withhold

life-sustaining medical treatment. Based on the limited

record before us, it appears that the committee reviewing

the request by Ms. F.’s guardian did not function effec-

tively. Had Ms. F. been in a persistent vegetative state

and had an interested person objected to the withdrawal

of nutrition, the circuit court stated that it would have

been unable to give weight to the committee’s purported

determination that withholding of nutrition was the ethi-

cally proper course. The circuit court noted that no for-

mal minutes or report of the meeting was produced at the

hearing and that the committee members apparently func-

tioned without either a shared body of rules or training

in ethics. In fairness to the committee members in this

case, it must be noted that the committee had only re-

cently been formed and had deliberated in perhaps only

one other case.

The circuit court also seemed troubled, as am I, with

the apparent focus of the ethics committee’s investigation.

The committee seemed to understand that its function was

to reach a determination that would insulate the facility

from legal liability rather than the determination that best

comported with medical ethics.* The focus of all par-

Ethics Committees’ Legitimate and Impartial Review of Ethical

Health Care Decisions, 10 J. Legal Medicine 393 (1989).

8 The ethics committee apparently agreed with the decision to

withhold nutrition from Ms. F. but would not agree to carry out

this decision without written consent from all family members. It

appears that all family members except for one niece of Ms. F.

consented in writing. The niece was reported to have said that she

did not object to withholding nutrition but that her religious views

precluded her from consenting in writing.

The circuit judge concluded his own lengthy questioning of one

member of the ethics committee with the following: “[T]he way

I understand it, what you really have is a liability problem, and

that’s why you want everybody to consent, is that correct?” Dr.

Erickson answered: “That is correct.” R. 19 at 47.

Lee

23a

ticipants in this fateful and difficult process should be on

the propriety of taking action which will lead to a person’s

death. The health care facility’s liability concerns must

not be allowed to interfere with the guardian’s efforts to

assure the exercise of the ward’s right to be free of un-

wanted life-sustaining medical treatment when the guard-

ian has determined, in consultation with the physicians,

that the ward is in a persistent vegetative state and it is

in the ward’s best interests to withhold such treatment.

For the foregoing reasons I write separately.

WILLIAM A. BABLITCH, Justice (concurring).

The medical determination of the existence of a per-

sistent vegetative state is, literally, one of life or death.

It is important the doctors get it right. It is equally im-

portant that we get the law right.

The majority and the concurring opinions, and this

writer, agree that if a person is not in a persistent vegeta-

tive state, medical treatment cannot be withdrawn.

the doctors determine that she meets the current medical

definition of persistent vegetative state, medical treatment

may be withdrawn even if her physical condition has not

changed from the time of the diagnosis rendered in this

case.

)

We further agree that if Ms. F. is diagnosed again and

But then we part company.

Regrettably, the majority and the concurring opinions

fail to establish a significant safeguard designed to ensure

the accuracy of that determination. They would allow any

person with a medical degree to make the critical diag-

nosis that drives the ultimate decision to withdraw or

continue life sustaining medical treatment. Furthermore,

they insist on the presence of three doctors only when the

decision is to withdraw life sustaining medical support.

Respectfully, I cannot join such a decision.

24a

I would direct as a matter of law that anytime a guard-

ian requests a diagnosis for the purpose of determining

the presence or absence of a persistent vegetative state in

order to ascertain whether life sustaining medical treat-

ment can be withdrawn, three conditions must be met.

First, the diagnosis must be made by the attending physi-

cian and two independent doctors. Second, at least one of

the independent doctors must be a specialist in the medi-

cal field relevant to the patient’s condition.’ Third, I

join with the concurring opinion that the doctors must

rely on current medical authority generally accepted in

that specialty. Inasmuch as Alzheimer’s is a neurological

disease, I would direct that in the case of Ms. F. one of

the independent doctors be a neurologist relying on cur-

rent medical authority accepted in the field of neurological

medicine.

The majority and concurring opinions fail to require

that one of the attending physicians be a specialist in the

medical field relevant to the patient’s condition.

This case amply demonstrates the need for such pro-

tection. Neither of the two physicians who examined Ms.

F. were neurologists. The only doctor who was asked

his opinion on whether Ms. F. was in a persistent vegeta-

tive state testified she was not. However, he testified that

! Although these two issues were neither briefed nor argued by

the parties, the posture in which this case comes to us does raise

them. It is obvious from this record that all parties agreed to a

trial and appellate strategy of attempting to extend L. W.. Thus,

none of the original parties were adversarial to each other, and none

of them briefed nor argued these issues. From their perspective, it

was unncessary. Nonetheless, I would reach and decide them. We

have on occasion in the past ordered the parties to brief issues not

presented in the briefs or arguments. We have, as we did in this

very case, appointed counsel to advance opposing positions. I would

support similar action in this case. The nature of these issues make

it highly unlikely that this court will see them again for years,

if ever.

25a

his diagnosis was based on a January 1989 article in the

medical journal, Neurology. The authority he relied on

was arguably outdated.

The entire 1989 Statement upon which the doctor relied

covered two pages in that journal. In 1991, the Multi-

Society Task Force on Persistent Vegetative State was

created.” The Task Force’s 1994 Statement, a far more

exhaustive treatment of persistent vegetative state, sum-

marizes current knowledge of the medical aspects of per-

sistent vegetative state.© The 1994 Statement explains,

refines and substantially augments the 1989 definition of

persistent vegetative state applied by Ms. F.’s doctor in his

diagnosis.

As more fully discussed below, the 1994 Statement

appears to call into serious question the accuracy of the

diagnosis made by Dr. Erickson.

Unless this court directs that at least one of the doctors

be a specialist current in his or her field, there is nothing

to stop this from happening again. The potential for seri-

2 The 1994 Statement, Medical Aspects of the Persistent Vegeta-

tive State, Parts I and II, 330 N.Engl. J. Med (May 26, 1994),

was approved by the executive committee of each of the following

medical societies: the American Academy of Neurology, the Child

Neurology Society, the American Neurological Association, the

American Association of Neurological Surgeons, and the American

Academy of Pediatircs. Two representatives from each of these

societies were appointed to the Task Force, and an advisory panel

of consultants was selected from the related fields of medicine,

ehtoics, and law.

3’ The 1994 Statement speaks to the “vegetative state,” distin-

guishing between a “persistent vegetative state” and a “permanent

vegetative state.” It refers to the persistent vegetative state as a

diagnosis, the permanent vegetative state as a prognosis, i.e., an

irreversible persisent vegetative state. L.W. used the term per-

sistent vegetative state to refer to an irreversible condition. Be-

cause the majority and concurring opinions continue to use the

term “persistent” to categorize the irreversible condition, I do

likewise.

26a

ous error, as possibly occurred here where Ms. F. was

diagnosed as not being in a persistent vegetative state, is

patent. The potential for serious error in cases involving a

patient diagnosed as being in a persistent vegetative

state is equally apparent.

In retrospect, L.W. should have insisted upon, rather

than recommended, a specialist in the field. It did not,

and the majority and concurring opinions continue in

that error. In a justifiable desire to leave these decisions

as much as reasonably possible to family members and

their physicians and not the courts, the majority and con-

curring opinions abdicate too much. They are willing to

allow any person with a medical degree to diagnose the

presence or absence of a persistent vegetative state.

I am not.

A diagnosis of the presence or absence of a persistent

vegetative state drives the ultimate decision to withdraw

or continue life sustaining medical treatment. It is far

too important and critical a decision to leave in the

hands of anybody with a medical degree. A level of

expertise beyond a medical degree should be demanded.

Other states and commentators have recognized this

problem. One legal scholar cites the risk of an erroneous

medical diagnosis as one of the three major factors that

contribute to the risk of an improper decision to continue

or to withhold life sustaining medical treatment. Linda

C. Fontiman, Privacy and Personhood Revisited: A New

Framework for Substitute Decision Making for the In-

competent, Incurably Ill Adult, 57 Geo. Wash. L.Rev.

801, 808 (March 1989). Professor Fontiman rules that a

number of courts have implicitly recognized this possi-

bility of a mistaken diagnosis. Id. at 809.

The New Jersey Supreme Court, which set the stage

for decision making analysis in these cases with the Quin-

27a

lan decision, expressly recognized the risk of an erroneous

diagnosis. In re Jobes, 108 N.J. 394, 529 A.2d 434,

447-448 (1987). To guard against the risk of such an

error and to ensure the preservation of medical ethics, the

surrogate decision maker must secure statements from “at

least two independent physicians knowledgeable in neurol-

ogy that the patient is in a persistent vegetative state.”

Id. 529 A.2d at 448.

Acknowledging that the prognosis determination is a

medical one, the Washington Supreme Court held that

even this prong of the life-sustaining medical treatment

decision making process must incorporate safeguards to

protect patients from an inaccurate diagnosis. In re Col-

yer, 99 Wash.2d 114, 660 P.2d 738, 749 (1983) (re-

quiring confirmation of the attending physician’s diagno-

sis by a prognosis board consisting of “no fewer than two

physicians with qualifications relevant to the patient’s

condition”). Accord In re Moorhouse, 250 N.J.Super.

307, 593 A.2d 1256 (App. 1991) (requiring that the

attending physician’s diagnosis be confirmed by the hos-

pital’s prognosis committee and at least two independent

physicians knowledgeable in neurology); John F. Ken-

nedy Memorial Hospital, inc. v. Bludworth, 452 So.2d

921, 926 (Fla.1984) (requiring certification that patient

is in a permanent vegetative state by the primary treating

physician and concurrence in the certification by “at least

two other physicians with specialties relevant to the pa-

tient’s condition.” ).

The concurring opinion recognizes to some extent these

problems by stating that “It is similarly important that

physicians who are called upon to make the apparently

difficult diagnosis of a persistent vegetative state be expert

in this area of medicine.” Concurrence at 495.

It is more than “important.” It is critical. I would

not recommend, I would direct. The absence of this safe-

guard in the majority and concurring opinions charts a

perilous course.

28a

Dr. Erickson, who is not a neurologist, relying on argu-

ably outdated medical authority, diagnosed Ms. F. and

testified that she approximates but does not meet the

strict definition of persistent vegetative state. If he was

in error, important constitutional rights were denied Mrs.

F. This record raises serious concern in my mind that

he may have been in error. At the very least, his testi-

mony did not indicate a knowledge of the 1994 State-

ment. A neurologist might well have been aware. It might

have changed the diagnosis.

Nevertheless, if there was an error made in the diagnosis

of Ms. F., or others like her, it was an error made on

the side of life. It can be corrected. Not so in the case

of a diagnosis of a persistent vegetative state of a person

who is in fact not in a persistent vegetative state. Once

medical treatment is withdrawn, life will cease: misdiag-

nosis in that event cannot be corrected. Surely some

minimum safeguards speaking to the expertise and knowl-

edge of the doctors should be present. The majority

requires nothing other than a medical degree.

I would require more. -

II.

Unfortunately, the majority and concurring opinions

require three doctors only when life sustaining support

is to be withdrawn. They are silent as to the threshold

stage in any case involving these issues: the decision of

the guardian to seek a diagnosis.

I would require three doctors anytime a guardian

requests a diagnosis for the purpose of determining the

presence or absence of a persistent vegetative state. The

importance of that requirement is demonstrated by this

case. Once the attending physician determined that Ms.

F. was close but not actually in a persistent vegetative

state, the inquiry was ended. But if Ms. F. was incorrectly

diagnosed, as I believe is suggested in this record, im-

portant constitutional rights were denied her.

29a

We require three doctors when the decision to withdraw

life support is made. Is it not equally important to require

the same number of doctors at the threshold inquiry which,

in a case like this, is determinative of constitutional rights?

I would require that once the guardian determines that

the question of withdrawal of life sustaining medical

support is presented, the attending physician and two

independent doctors must be consulted.

IIT.

Fortunately, the concurring opinion recognizes the im-

portance of using current medical authority, and directs

that it be used. Concurrence at 494 (“If the guardian

chooses to seek further diagnoses and if the doctors,

applying current medical knowledge, determine that Ms. F.

is at the time of the examination in a persistent vegeta-

tive state, the guardian may consent to withdrawal of

nutrition or the guardian may decide not to withdraw

nutrition.” (emphasis added)). Id. at 494-495 (“Qual-

ified physicians make the diagnosis of a persistent vege-

tative state or its absence, using scientifically current

information and information and standards.” (emphasis

added)). I join that part of the concurring opinion.

Accordingly, that requirement has the support of a major-

ity of this court.

The importance of using current medical authority is

amply demonstrated in this record. Dr. Erickson, relying

on a January, 1989, journal of neurology, testified that

the standards expressed therein required “that there be no

behavioral response whatsoever over an extended period

of time.” (emphasis added). Further, he testified that

those 1989 standards required there be “no voluntary

action or behavior of any kind [present].” (emphasis

added). Because there was “some minimal response to

stimulation from her surroundings” the doctor concluded

Ms. F. “approximates but does not entirely meet that

definition of the persistent vegetative state.”

30a

This testimony was crucial. No one disputed the doc-

tor’s finding that Ms. F. was not in a persistent vegetative

state. The circuit court had no choice but to agree. But

current medical authority, the 1994 Statement, contradicts

or at the very least calls into serious question Dr. Erick-

son’s conclusion. It does not require, “no behavioral re-

sponse whatsoever” to the presence of a persistent vege-

tative state; rather, it requires no evidence of “sustained”

behavior of that kind.

In order to more fully understand why the 1994 State-

ment seriously undercuts the doctor’s conclusion, it is

necessary to first understand more completely the condi-

tion of Ms. F. with respect to her response to stimulation.*

Although she appears to respond to voices or noises in

her room, she makes no meaningful response to questions

or commands. R:19 at 24-25.° Several medical pro-

fessionals who had regular contact with Ms. F. described

her condition. Licensed practical nurse, Patricia Rohmeyer

(Rohmeyer), has had regular contact with Ms. F. since

1986. R:19 at 6. Rohmeyer testified that she “[dJoes

not respond most of the time when you speak to her,

either by blinking her eyes or opening her eyes.” R:19

at 7. Edna F. does not respond when Rohmeyer places

a finger im her hand and asks her to squeeze the finger.

R:19 at 8 When asked whether Ms. F. looked toward

a person who called her name, Rohmeyer responded that

“[s]he wasn’t able to today.” R:19 at 8. She described

Ms. F.’s condiiton as “progressive through the years.”

R:19 at 8.

*I agree with the concurring opinion that the majoirty opinion

does not convey an accurate picture of Ms. F.’s condition. The facts

recited in the concurring opinion together with the facts stated

herein convey an accurate portrayal. In addition, I note that Ms.

F. has been in this condition since 1993, and her doctors testify

she will not improve, she will only get worse.

5 References are to pages and documents in the record.

— ee eT ee

3la

Spahn described her sister’s condition to the circuit

court: “Sometimes I can get her to look at me. . . . Some-

times I can get her to look. Not very often. The last

couple times I have been in I’ve gotten—I did get her

to open her eyes, but not to look at me.” R:19 at 75-76.

Even more telling was the testimony of Dr. Erickson.

He described Ms. F.’s condition on December 19, 1994:

She did respond to voice by opening her eyes, but

did not respond to command. . . . She opened her

eyes and looked, but not in any meaningful way at

me. She simply appeared to respond to a voice or to

a noise in the room. I discussed with the nursing

staff at that time, although I did not notice that she

would occasionally track movement in the room. The

level of alertness that I found at that time in discus-

sion with the nursing staff was consistent with what

they had observed on a day to day basis... . Period-

ically she would follow movement in the room, or she

may respond to tactile stimulation or voice by open-

ing her eyes. But there was no meaningful response

to command or attempts at communication.

R:19 at 24-25.

The record reveals that upon application of mildly

noxious stimuli, Ms. F. might open her eyes or grimace

but, her doctors say, she fails to make a consistent effort

to withdraw from or to remove the stimulation. R: 19

at 26, 65.

Dr. Przyblinski described Ms. F.’s response to mildly

noxious stimuli: “When I gave her tactile stimulation

which I considered mildly noxious, either pinching her for

arm [sic] or her leg or rubbing her sternum, she grimaced

and she did make a moaning sound. She did not make

any attempt to push my hand away or pull her arm or leg

away, so I didn’t see anything that I would see as pur-

poseful movement with that kind of stimulation.” R:19

32a

at 63. He further states that she is no longer aware of, nor

can she interact in any purposeful manner, with her sur-

roundings, or the people who are attending to her. R:19

at 64-65 (emphasis added).

Dr. Erickson has never observed a consistent effort by

Ms. F. to withdraw from noxious stimuli. R:19 at 25.

When he touches her face, or presses gently on her

sternum, she might make a minimal response, i.e., a

movement or facial expression, acknowledging the stimu-

lation, but he has observed no consistent effort to with-

draw or to remove the stimuli. R:19 at 26. When

doctors subject her to noxious stimuli, Ms. F.’s vital signs

remain stable. R:19 at 34.

The 1994 Statement lists the following criteria accord-

ing to which the vegetative state can be diagnosed:

(1) no evidence of awareness of self or environment

and an inability to interact with others; (2) no evi-

dence of sustained, reproducible, purposeful, or vol-

untary behavioral responses to visual, auditory, tac-

tile, or noxious stimuli; (3) no evidence of language

comprehension or expression; (4) intermittent wake-

fulness manifested by the presence of sleep-wake

cycles; (5) sufficiently preserved hypothalamic and

brain-stem autonomic functions to permit survival

with medical and nursing care; (6) bowel and blad-

der incontinance; and (7) variably preserved cranial-

nerve reflexes (pupillary, oculocephalic, corneal, ves-

tibule-ocular, and gag) and spinal reflexes.

Dr. Erickson testified that a persistent vegetative state

required “no behavioral response whatsoever.” As seen

from the above 1994 Statement, that appears to be an

incorrect conclusion: “no evidence of sustained, repro-

ducible, or voluntary behavioral responses to . . . stimuli.”

(emphasis added). The 1994 Statement further cautions

that motor or eye movements and facial expressions in

response to various stimuli also occur in persons in an

33a

irreversible vegetative state. These movements and ex-

pressions occur in stereotyped patterns that indicate re-

flexive responses integrated at deep subcortical levels, and

are not indicative of learned voluntary acts. The presence

of these responses is consistent with complete unaware-

ness. The 1989 Statement does not discuss the subtle

distinctions between the visual pursuit of a person who

is aware of the surroundings and a person in a persistent

vegetative state.

Given that Dr. Erickson believed the existence of a

persistent vegetative state required no behavioral response

whatsoever, given that he testified Ms. F.’s responses were

“minimal,” and given the above quoted texts from the

1994 Statement, I conclude a serious question exists as

to the accuracy of his diagnosis. If so, important con-

stitutional rights have been denied Ms. F. The use of

current medical authority might well have changed his

diagnosis. Fortunately, that is now the mandate of this

court.

In summation, I would hold that any time a guardian

requests a diagnosis for the purpose of determining the

presence or absence of a persistent vegetative state to

ascertain whether life sustaining medical treatment may

be withdrawn, three conditions must be met: 1) the diag-

nosis must be made by the attending physician together

with two independent doctors; 2) at least one of the inde-

pendent doctors must be a specialist in the medical field

relevant to the patient’s condition; and, 3) the diagnosis

must rely on current medical authority generally accepted

in that specialty.

If indeed Ms. F.’s original diagnosis was incorrect,

needless suffering has been endured by her family and loved

ones as they have been forced to sit helplessly by watching

this woman they love continue an emptiness that only the

most literal would call life. Had the procedures I recom-

mend been utilized, this might have been avoided. For-

34a

tunately, if error has been made it can be corrected. All

members of this court agree that she can be re-diagnosed.

If her attending physician and two independent doctors

agree that she meets the current medical definition of

persistent vegetative state, and no one objects, medical

treatment may be withdrawn without further recourse to

the courts. This is so even if her physical condition has

not changed from the time of the original diagnosis ren-

dered in this case.

Others may not be as fortunate.

For the above stated reasons, I respectfully concur.

JANINE P. GESKE, Justice (concurring).

I join both the majority opinion authored by Justice

Donald W. Steinmetz and the concurring opinion authored

by Chief Justice Shirley S. Abrahamson.

ANN WALSH BRADLEY, Justice (concurring).

I join both the majority opinion authored by Justice

Donald W. Steinmetz and the concurring opinion authored

by Chief Justice Shirley S. Abrahamson.

*I also agree with the concurring opinion with respect to its

discussion of what L.W. does and does not stand for, specifically

that the provision of nutrition and hydration by artificial means are

forms of medical treatment in Wisconsin, and that the substituted

judgment test has not been rejected in Wisconsin in all circumstances.

35a

OFFICE OF THE CLERK

SUPREME COURT

MADISON, WISCONSIN 53701-1688

November 20, 1996

No. 95-2719

IN MATTER OF GUARDIANSHIP AND PROTECTIVE

PLACEMENT OF EDNA M.F.:

SPAHN V. WITTMAN

L.C. #93PP36

ORDER

A motion to enlarge the time for oral argument and to

realign the guardian ad litem as an appellant rather than

a respondent having been filed by the respondent-designate,

Howard B. Eisenberg and considered by the court;

IT IS ORDERED that the motion to realign the guar-

dian ad litem as an appellant rather than a respondent is

granted; and

IT IS FURTHER ORDERED the motion to enlarge the

time for oral argument is denied. The attorneys for the

guardian and guardian ad litem shall share 30 minutes of

oral argument time as they see fit.

MARILYN L. GRAVES

Clerk of Supreme Court

36a

OFFICE OF THE CLERK

SUPREME COURT

MADISON, WISCONSIN 53701-1688

September 19, 1996

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE

PLACEMENT OF EDNA M.F., INCOMPETENT:

Betty SPAHN V. MARK WITTMAN

# 95-2719

ORDER

The Court having reviewed the briefs filed by the par-

ties in the above matter and having determined that proper

consideration of the issues presented require briefing and

oral argument in support of the circuit court decision on

appeal.

IT IS ORDERED that Howard B. Eisenberg is ap-

pointed as respondent-designate to appear in this proceed-

ing in support of the decision of the circuit court on appeal.

IT IS FURTHER ORDERED that this case is removed

from the schedule for oral argument on October 17, 1996.

IT IS FURTHER ORDERED that within 30 days of

the date of this order, the respondent-designate shall file

a brief in compliance with Rule 809.19.

IT IS FURTHER ORDERED that the parties will be

informed in due course of the date and time this matter

is rescheduled for oral argument.

MARILYN L. GRAVES

Clerk of Supreme Court

37a

OFFICE OF THE CLERK

SUPREME COURT

MADISON, WISCONSIN 53701-1688

April 16, 1996

No. 95-2719

IN MATTER OF GUARDIANSHIP AND PROTECTIVE

PLACEMENT OF EDNA M.F.:

SPAHN v. WITTMAN

L.C. #93PP36

The court having considered the petition to bypass the

court of appeals submitted on behalf of appellant-

petitioner, Betty Spahn, in this case.

IT IS ORDERED the petition to bypass is granted and

the appeal is accepted for consideration in this court; and

IT IS FURTHER ORDERED that the briefs previously

submitted by the parties to the court of appeals may stand

as the parties’ briefs in this court. The parties shall submit

ten additional copies of their briefs within ten days of the

date of this order. The parties will be notified of the date

and time for oral argument in this appeal in due course.

MARILYN L. GRAVES

Clerk of Supreme Court

38a

[Filed Oct. 4, 1995]

STATE OF WISCONSIN

CIRCUIT COURT

WOOD COUNTY

PROBATE BRANCH

95-2719

Confidential

IN THE MATTER OF THE GUARDIANSHIP AND

PROTECTIVE PLACEMENT OF:

Epna M. F.,

Incompetent

BETTY SPAHN,

Guardian of Edna M. F.,

App.

Vv.

MARK WITTMAN,

Guardian Ad Litem for Edna M. F.,

Resp.

NOTICE OF APPEAL

File No.: 93PP36

Classification Code. 50401

that the Appellant, Betty Spahn, Guardian of Edna M.

Folz, by John R. Hutchinson, appeals to the Court of

Appeals, August 22, 1995 in the Circuit Court for Wood

County, the Case No. 93-PP-36, wherein the Court denied

Appellant’s Petition for An Order Confirming Guardian’s

Decision to Withdraw Artificial Nutrition.

39a

This is not an appeal within Section 752.31(2), Wis.

Stats.

This is not an appeal entitled to preference by statute.

Dated this 29th day of September, 1995.

Wynia & BILLinGs, S.C.

/s/ John R. Hutchinson

JOHN R. HUTCHINSON

State Bar No. 01020212

40a

STATE OF WISCONSIN

CIRCUIT COURT

WOOD COUNTY

Case No. 93PP36

IN THE MATTER OF THE GUARDIANSHIP AND

PROTECTIVE PLACEMENT OF,

Epna M. F.,

Incompetent.

ORDER

This matter having come on for hearing on March 22,

1995 and April 11, 1995 on a Petition for an Order of

the Court confirming the Guardian’s decision to withdraw

artificial nutrition with appearances by the Petitioner,

Wynia & Billings, S.C. by John R. Hutchinson as attorney

for the Petitioner and Attorney Mark Wittman as Guar-

dian Ad Litem, this Court finds as follows:

1. Edna M. F. is a 71 year old woman whose mental

condition approximates but does not meet the clinical

definition of a persistent vegetative state.

2. Edna M. F. is bedridden, incontinent of bowel and

bladder, unable to feed herself and unable to move her-

self or voluntarily change body position. She requires

constant repositioning by others to avoid skin breakdown.

However, she breaths without assistance, appears to track

movement with her eyes and exhibits general non-specific

responses to mildly noxious stimuli.

3. In 1979, Edna M. F. was diagnosed with Dementia-

Alzheimers type, a progressive and degenerative disease

which affects the cerebral cortex and for which there is

no known cure. As a direct result of her disease, her men-

tal and physical conditions will continue to deteriorate

and, per medical testimony, it is highly unlikely that these

conditions will improve.

4la

4. In 1966 or 1967, in the context of a conversation

with her sister regarding her mother’s treatment for mental

depresion vis-a-vis treatment for another woman who was

dying of cancer, Edna M. F. stated that she would rather

die than lose her mind.

5. The Guardian has urged this Court to apply a “sub-

stituted judgment analysis,” an analytical process in which

the surrogate decision maker attempts to establish, as ac-

curately as possible, what decision the Ward would make

under the circumstances if competent to do so. Consid-

eration is given to the Ward’s expressed preferences, even

if too vague, casual or remote to constitute direct proof,

and the Ward’s general values, lifestyle and overall man-

ner of living. There is ne-requirement that the Ward be

in a persistent vegetative state. This Court concludes that

the application of substituted judgment analysis to extend

existing case law must be done by the appellate court or

the legislature.

6. In the alternative, the Guardian has urged this

Court to apply a “best interest analysis,” a separate and

distinct balancing test in which the surrogate decision

maker evaluates and balances certain objective factors set

forth in In the Matter of Guardianship of L. W., 167

Wis. 2d 53, 86, against four specified state interests. Since

the Ward is not in a persistent vegetative state, this Court

may not authorize the withdrawl of artificial nutrition

under the authority of L. W., supra. In addition, this

Court knows of no other statutes or case law which will

allow it to grant the motion.

WHEREFORE, the Petitioner’s request for an order

confirming Guardian’s decision to withdraw artificial nu-

trition is denied.

Dated this 22 day of August, 1995.

By THE Court:

/s/ Dennis D. Conway

DENNIS D. CONWAY

Circuit Court Judge

42a

[Filed Apr. 19, 1995]

STATE OF WISCONSIN

CIRCUIT COURT

WOOD COUNTY

Case No. 93PP36

IN THE MATTER OF THE GUARDIANSHIP AND

PROTECTIVE PLACEMENT OF,

EpDNA M. Fo.z,

Incompetent,

i MEMORANDUM DECISION

This matter came on for hearing before the Court on a

motion to withdraw nutrition from the ward. Edna Folz is

presently 71 years of age, and living at the Marshfield

Nursing and Rehabilitation Center. She is suffering from

dementia associated with Alzheimer’s disease. Ms. Folz

was first diagnosed with Alzheimer’s in 1979 at Duke Uni-

versity. She was admitted to the Marshfield Nursing and

Rehabilitation home in 1986. At that time, she was am-

bulatory, but was confused and needed direction. She had

a short term attention span, and did not always answer

appropriately. Today, she is bed-ridden, with a permanent

tube attached to her body that provides her nutrition. She

can’t feed herself, can’t turn herself over, and has no con-

trol over her bladder and bowels. She does, however,

breath on her own. The testimony is clear that she does

have some response to stimuli. She can track persons

within the room with her eyes. Upon noxious stimulation,

pinching and rubbing of the sternum, she grimaces and

moans. Her prognosis is that she is very unlikely to im-

prove; that she has reached an end stage of Alzheimer’s.

However, Dr. Erickson and Dr. Przybylinski have testified

that she is not in a persistent vegetative state.

EEE LLL

wy, ”

43a

The guardian of Mrs. Folz is her sister, Betty Spahn,

who has moved the Court to remove the feeding tube.

This motion in concert with the Marshfield Nursing and

Rehab Ethics Committee which claims to have decided

that the tube should be removed for feeding, but that the

hydration tube should not be removed. This Ethics deci-

sion is not mentioned in the minutes of the committee

meeting. The case for Ms. Folz is not part of the record.

The rules or by-laws of the Ethics Committee, if any, are

not part of the record. The plan is to allow Ms. Folz to

eat what she is capable of taking orally, although it is

generally admitted that she will be unable to eat in this

fashion. Certainly her inability to eat will cause her death.

The petitioner has provided the Court with letters or

affidavits from relatives and former acquaintances, indicat-

ing that they feel that from what they knew of her when

She had control of her intellect, that she would not care to

continue to exist in her present state. None of these wit-

nesses, however, have discussed this matter with Ms. Folz.

It is merely their impression of what she would do if she

knew about the situation that presently exists.

The only testimony as to Ms. Folz’s opinions and feel-

ing on the situation during the time when she had control

of her intellectual powers was a conversation with her

sister, Betty Spahn, the guardian, in 1966 or 1967. At

that time, their mother had just recovered from depression,

and Mrs. Spahn’s siter-in-law was dying of cancer. In

that particular discussion, Mrs. Spahn stated that her sis-

ter, the ward here, had stated she would rather be dead

than lose her mind. This is the only testimony that refers

to anything that Ms. Folz said during her entire lifetime

with regard to this situation. That occurred 28 or 29

years ago.

The leading case in the area is In the Matter of the

Guardianship of L.W., 167 Wis. 2d 53. That case “is

limited in scope to persons in a persistent vegetative

State.” p. 63 supra.

44a

In L.W., our Court held that court approval of the

guardian's decision is not required. Nevertheless, the

guardian has requested approval of this Court to withdraw

nutrition from Ms. Folz. The guardian ad litem appar-

ently agrees.

In this case, the presumption is that continued life is

in the best interests of the ward. “. . . The burden rests

upon the guardian to show both the existence of a persist-

ent vegetative state to a high degree of medical certainty

and that the decision to withhold or withdraw treatment

is in the ward’s best interest, and was made in good faith.”

In the Matter of the Guardianship of L.W., supra p. 92-93.

The evidence is that Ms. Folz is not in a persistent vege-

tative state. Therefore, this Court cannot grant the motion

to withdraw nutrition (which will cause death) under the

authority of L.W. This Court knows of no other statutory

or case law authority which will allow it to grant this

motion.

The guardian argues that the Court should use its in-

herent powers to extend existing case law. She does a sub-

stituted judgment analysis and a best interests analysis

which argue, in effect, that although a persistent vegetative

state does not exist, it is close enough. Such an argument

will never end. In view of the life ending result, such

change in the law must come from the legislature or the

appellate court, not the trial court.

The motion is denied for the above reasons. The attor-

ney for the guardian may draft an order in accord with

this opinion.

Dated: April 17, 1995

By the Court:

/s/ Dennis D. Conway

DENNIS D. Conway

Circuit Judge

45a

STATE OF WISCONSIN

CIRCUIT COURT

WOOD COUNTY

PROBATE BRANCH

Case No. 93PP36

Classification Code: 301

IN THE MATTER OF THE GUARDIANSHIP OF,

EDNA M. FOLz,

Incompetent

PETITION FOR ORDER CONFIRMING

GUARDIAN’S DECISION TO WITHDRAW

ARTIFICIAL NUTRITION

Under oath, I petition the Court for an Order Confirm-

ing Guardian’s Decision To Withdraw Artificial Nutrition

and state as follows:

1. I am the Guardian of Edna M. Folz (hereafter

“Ward”) under Letters of Guardianship dated

June 8, 1993, which Letters remain in full force

and effect. A true and correct copy of said Let-

ters is attached hereto and full incorporated here-

in by this reference.

2. In 1979 Ward was diagnosed as having Alzheim-

er’s disease and has been institutionalized ever

since. At that time, statutory recognition of a

person’s right to refuse life sustaining medical

treatment (LSMT) did not exist in Wisconsin

and, therefore, Ward never had the opportunity

to execute a Living Will (Directive to Physicians)

or Power of Attorney for Health Care.

46a

3. Prior to 1979, while still competent, Ward clearly

and unequivocally expressed to Petitioner her sin-

cere wish that her life not be artificially pro-

longed.

4. Ward’s current condition is consistent with that

of advanced dementia, Alzheimer’s type. The po-

sition on persistent vegetative state, as outlined

by the American Academy of Neurology, indi-

cates that no voluntary action or behavior of any

kind is present. There is no behavioral response

whatsoever over an extended period of time.

Ward approximates, but does not meet, the strict

definition of persistent vegetative state in that

Ward does express minimal response to stimula-

tion from her surroundings from voice, movement

and tactile stimulation. However, this is largely

a somatic distinction as in all respects and for all

practical purposes, Ward’s current condition is

consistent with the concept of persistent vegeta-

tive state and her primary diagnosis is one that

would only progressively bring her closer to that

strict definition.

5. The Ethics Committee of the Marshfield Nursing

and Rehabilitation Center where Ward is a resi-

dent has unanimously concluded that it is ap-

propriate to withdraw artificial nutrition from

Ward.

6. The scope of this Petition is limited to the with-

drawal of artificial nutrition. Reasonable efforts

will be made by personnel at Marshfield Nursing

and Rehabilitation Center to feed Ward orally

and artificial hydration will be continued indefi-

nitely. The artificial nutrition tube will remain

in place for the purpose of ensuring the ability

to administer medication if necessary, for Ward’s

continued comfort.

47a

7. Guardian, as the Petitioner, knows that by with-

drawing artificial nutrition, Ward’s death is likely

to result. However, Guardian, as the surrogate

decision-maker for Ward, in the exercise of sub-

stituted judgment, and after taking into account

Ward’s personal, religious and moral beliefs and

ethical values relative to the purpose of life, sick-

ness, medical procedures, suffering and death,

has determined that Ward would refuse all forms

of LSMT which serve only to prolong her con-

tinued existence and artificially postpone her

death.

8. The following is a list of all interested persons

known to Guardian:

a. Elizabeth (Betty) Folz Spahn, Sister

1024 Emerson Drive

Rockford, IL 61108

b. Walter Folz, Brother

6916 Lamont Drive

Lanham, MD 20706

c. Suzanne Folz Wingo, Sister

505 W. Church Street

Morrilton, AK 72110

d. Betty Ann Folz, Sister-in-law

14419 Brad Drive

Rockville, MD 20853

e. Denise Folz, Niece

14419 Brad Drive

Rockville, MD 20853

f. Cheryl Folz McArthur, Niece

3551 Kahala Bay Lane

Las Vegas, NV 89117

g. Kimberly Folz Perez, Niece

18317 Lemon Lake Drive

Olney, MD 20832

48a

h. Marshfield Nursing and Rehabilitation Center

814 W. 14th Street

Marshfield, WI 54449

i. Mark Wittman, Guardian Ad Litem

P.O. Box 9

Marshfield, WI 54449-0009

j. National City Bank, Trustee

P.O. Box 868

Evansville, IN 47705-0868

WHEREFORE, Petitioner prays for an Order of the

Court Confirming Guardian’s Decision, as the surrogate

decision-maker for Ward, to direct Marshfield Nursing and

Rehabilitation Center to withdraw artificial nutrition.

Dated this 9th of January, 1995.

By: /s/ Elizabeth Spahn

ELIZABETH SPAHN

Guardian for Edna Folz

49a

[Filed Jun. 8, 1993]

STATE OF WISCONSIN

CIRCUIT COURT

WOOD COUNTY

PROBATE BRANCH

File No. 93PP36

IN THE MATTER OF THE GUARDIANSHIP OF

Epna M. Foz

Alleged Incompetent.

DETERMINATION AND ORDER APPOINTING

GUARDIAN AND PROTECTIVE PLACEMENT.

A petition for the appointment of a guardian of the

person and estate and for protective placement came on

for hearing upon notice/waiver as provided by law.

THE COURT FINDS THAT:

1. The allegations of the petition are true and the ward

is in need of a guardian because of infirmities of aging.

2. That Edna Folz, is in need of protective placement

because the ward has been determined to be incompetent,

has a primary need for residential care and custody, is

totally incapable of providing for her own care or custody

as to create a substantial risk of serious harm to herself

as a result of infirmities of aging, and, other like in-

capacities.

3. This condition is permanent or likely to be perma-

nent.

4. The least restrictive placement consistent with the

ward’s needs is in an locked unit in a nursing home.

50a

5.- The ward is competent to exercise the right to exer-

cise no rights.

6. Elizabeth S. Folz Spahn is a competent and suitable

person to be appointed guardian of the person and estate

of the ward.

IT IS ORDERED THAT:

1. Elizabeth C. Folz Spahn is appointed permanent

guardian of the person and estate of the ward.

2. Bond in the sum of $2,000. The guardian shall

have all the powers of a general guardian.

For Protective Placement only.

3. The ward is protectively placed through the appro-

priate board designated under Sec. 55.02, Wis. Stats., or

its designee. .

4. The placement shall be at Marshfield Nursing and

Rehabilitation Center or at another facility of equal or

less restrictive environment.

5. The placement shall be in an unlocked unit.

Dated this 8th day of June, 1993.

BY THE COURT:

= /s/ Dennis D. Conway

~ DENNIS D. CONWAY

Judge

S$la

[Excerpt: Guardian’s “Brief in Support of Petition for Order

Confirming Guardian’s Decision to Withdraw Artificial Nutri-

tion” filed February 16, 1995 in Circuit Court of Wood County,

Wisconsin, R. 8-7]

al x * *

One significant issue remains to be addressed. The Wis-

consin Supreme Court stressed “. . . that this opinion is

limited in scope to persons in a persistent vegetative state.”

L. W. 167 Wis. 2d. 53, 63. Then the Court proceeds to

set forth several legal conclusions or rules which are not,

and may not be, so restricted.

First, “ . . . am individuals right to refuse unwanted

medical treatment emanates from the common law right

of self-determination and informed consent, the personal

liberties protected by the Fourteenth Amendment, and

from the guarantee of liberty in Article I, section 1 of

the Wisconsin Constitution.” L.W. Id. at 67.

Second, the Court acknowledges that “. . . the Wiscon-

sin legislature has declared that in this state competent

persons have a legislatively sanctioned right to refuse

unwanted life-sustaining medical treatment. L. W. Id. at

70.

Third, the Court has concluded “. . . that the right to

refuse all unwanted life-sustaining medical treatment ex-

tends to incompetent as well as competent individuals.”

(emphasis added) L. W. Id. at 73. -

Finally, the Court stated “We find no reason to differ-

entiate between the rights of the competent and incompe-

tent.” L. W. Id. at 77.

Can it be said then, reasonably or constitutionally, that

this right “extends” from competent individuals only to

those incompetent individuals in a persistent vegetative

state and somehow excludes all other incompetent indi-

viduals? The answer must be “No.” Otherwise, has not

the competent individual lost this right upon becoming

52a

incompetent and then regained the right at such time as

the individual is properly diagnosed as being in a per-

sistent vegetative state? Such a conclusion is not logically

or legally sustainable.

* * * *

POM Bg OEE FNS EET A EAE ETS TL ONG 8 NE

Rs pro

A CLAN a Bal PM Ih:

53a

[Excerpts: Guardian’s “Appellant Brief” to Wisconsin Court

of Appeals filed January 11, 1996 (Brief allowed to stand

as briefing to Wisconsin Supreme Court, on bypass), pages

52-55, 61, 63-65.]

* *. . *

III. In the alternative, the guardian of the person of

Edna M.F., an incompetent ward who is severely

ill but not in a persistent vegetative state, as the

surrogate decisionmaker, has the authority to direct

withholding or withdrawal of medical treatment

when such withholding or withdrawal will further

Edna M.F.’s best interests.

A. The court may not properly limit the surrogate

decisionmaker’s authority to use the best in-

terest analysis only to those patients who are

in a persistent vegetative state; otherwise, the

ability to exercise a valuable fundamental and

personal liberty is denied or lost, perhaps for-

ever.

The guardian ad litem has argued that, under the au-

thority of L.W., 167 Wis.2d at 84, the surrogate decision-

maker may apply the best interest analysis and “. . . may

consent to the withholding or withdrawal of life-sustaining

medical treatment . . . [only] when . . . [the ward] is

in a persistent vegetative state and has no reasonable

chance of recovery to a cognitive and sentient life . . .”

(R 11: 45) The court’s statement “. . . since the ward

is not in a persistent vegetative state, this court may not

authorize the withdrawal of artificial nutrition under the

authority of L.W.” (R 20: 1) indicates that the court

agrees with the guardian ad litem. This conclusion is

inconsistent with the Supreme Court’s earlier copclusion

“, . . that the right to refuse all unwanted life sustaining

medical treatment extends to incompetents as well as

competent individuals . . .,.” L.W., 167 Wis.2d at 73

and, therefore, may not be upheld. Otherwise, lifelong

54a

incompetents such as the ward in L.W. may be forever

precluded from exercising their fundamental and personal

liberty right to refuse medical treatment.

In Wisconsin, the term “persistent vegetative state”

means “a condition that reasonable medical judgment

finds constitutes complete and irreversible loss of all of

the functions of the cerebral cortex and results in a com-

plete, chronic and irreversible cessation of all cognitive

functioning and consciousness and a complete lack of

behavioral responses that indicate cognitive functioning,

although autonomic functions continue.” Section 154.01

(Sm), Wis. Stats.

Edna M.F.’s condition approximates but does not meet

the strict definition of a persistent vegetative state because

Edna M.F. has evidenced some minimal response to mildly

noxious stimulation such as grimacing and moaning. (R

19: 33 & 63) However, in all respects and for practical

purposes, her current status is consistent with the concept

of persistent vegetative state and her primary diagnosis

is one that will bring her closer to that strict definition.

(R 9).

* * * *~

In Wisconsin, if L.W. stands for the proposition that the

patient must be in a persistent vegetative state before the

surrogate may apply the best interest analysis, then life-

long incompetents such as the ward in L.W. and Joseph

Saikewicz and once competent individuals such as Michael

Martin and Lucille Austwick may be precluded, perhaps

forever, from exercising their fundamental and personal

liberty right to refuse unwanted medical treatment unless

and until it had been “. . . determine[d] with reasonable

medical certainty [by no less than 3 physicians] that the

patient is in a persistent vegetative state .. .” L.W., 167

Wis.2d at 84.

* * x x

sch aheieinacdiniiacacaditlidlaieadediaind Lantie_ aentn Lee ead

Ae Ne RN OR ALDEN EA QR ar

55a

If this court finds that an alternative to the persistent

vegetative state requirement is necessary or advisable,

Appellant suggests the court adopt some form the defini-

tion of an “incurable or irreversible condition” from Sec-

tion 40/10, the Illinois Health Care Surrogate Act, 755

ILCS 40/10 (1994) which states as follows:

“Incurable or irreversible condition” means an illness

or injury (i) for which there is no reasonable pros-

pect of cure or recovery, (ii) that ultimately will

[directly or indirectly] 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 treat-

ment, in light of the patient’s medical condition, pro-

vides only minimal medical benefit.

The proposed alternative will preserve the incompetent

patient’s capability to exercise the right to refuse unwanted

medical treatment at any time, prevent premature termina-

tion of medical treatment and, at the same time, protect

the incompetent patient from the avaricious and oppor-

tunistic individual, by providing a definable, yet less rigid,

medical test for the best interest analysis. Life-long in-

competents, such as the ward in L.W. and Joseph Saike-

wisz, and once competent patients, such as Michael Martin,

Lucille Austwick and Edna M.F., will retain the capability

to exercise at any time their fundamental and personal

liberty right to refuse unwanted medical treatment through

their surrogate decisionmaker. Such individuals will not

be forced to await a specific and strict clinical diagnosis

of persistent vegetative state, a medical condition which

the patient may never achieve.

* x * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.