Amicus Curiae Brief — Spahn v. Wittman

Supreme Court, w. S.

FILED

vi OCT 10 1997

No. 97-437 minions

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1997

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

Petitioner,

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

Respondent,

On Petition for Writ of Certiorari to the

Wisconsin Supreme Court

AMICUS CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

Paul G. Kent*

DeWitt, Ross & Stevens, S.C.

Two East Mifflin Street;Suite 600

Madison, Wisconsin 53703

(608) 255-8891

f Brian R. Purtell

Wisconsin Health Care

Association, Inc.

121 S. Pinckney Street; Suite 500

Madison, Wisconsin 53703

*Counsel of Record (608) 257-0125

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Page

AR Re FAT PII Bsc rcinsncsnnnnsasecicincccencanesecsonses il

INTEREST OF THE AMICUS CURIAE................ l

SUMMARY OF ARGUMENT...............ccccceeeeeeees 2

ARGUMENT

I. THE DECISION BELOW IMPACTS AND 3

IS OF IMPORTANCE TO OTHERS BEYOND

THE IMMEDIATE PARTIES DUE TO THE

UNCERTAINTY IT HAS CREATED............

II. THE DECISION BELOW CONFLICTS 12

WITH OTHER STATE SUPREME COURT

DECISIONS AND WITH OTHER STATE

ain cacecdnsihiseasizatensieenmnmecisbileiasnaionins

en aN ieiiieventhnviabsosdniatibunisisininssbambabaantebehanessentinditenatie 13

:

TABLE OF AUTHORITIES

Cases Page

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

Se Is MU CIES Ra sccccnscveresnscccesscsversoovesens 9,11

Cruzan v. Director, Missouri Department of

Health, 497 U.S. 261, 110 S.Ct. 2841 (1990)...... 9

Estate of Leach v. Shapiro, 13 Ohio App.3d 393,

GBP POE.28 1067 CIDA). .......0.00..00ccecccecsccesesesseees 10

In the Matter of Guardianship of L. W.,

167 Wis.2d 53, 482 N.W.2d 60.............c:ccccecees 4,5,9,14

In re Edna M.F. v. Eisenberg, 210 Wis.2d 558,

ef 5 See 3,6,10

In re Conroy, 98 N.J. 321, 486 A.2d 1209........... 6,9

il

INTEREST OF THE AMICUS CURIAE

The Wisconsin Health Care Association, Inc. ("WHCA"), is a

trade association comprised of approximately 245 nursing

facilities throughout the State of Wisconsin. It is organized as

a non-profit corporation under the laws of the State of

Wisconsin.

While the role of the nursing facilities has evolved to include

increased rehabilitation of residents for return to a non-

institutional setting, a significant segment of the resident

population still includes those at the end stages of life. The

decision below directly impacts most Wisconsin health care

providers. Given the nature of their resident population,

Wisconsin nursing facilities are frequently presented with end

of life issues, and are therefore in a position to inform the court

of interests other than those represented by the parties.

WHCA, through counsel, has received consent of all parties to

submit a brief in the matter, and respectfully submits this

amicus curiae in support of the Petition for Writ of Certiorari.

* Pursuant to Supreme Court Rule 37.6: This brief was exclusively written,

produced and funded by the amicus curiae. No parties, or their counsel, have

authored or contributed monetarily to the preparation or submission of this

brief.

SUMMARY OF THE ARGUMENT

WHCA does not wish to needlessly burden the Court with the

repetition of the petitioner's arguments, but generally seeks to

add practical arguments to those legal argument previously

presented in the Petition for Writ of Certiorari. More

importantly, WHCA intends to demonstrate that the decision

below is important to others beyond the parties immediate to

that decision. Specifically, that the decision is of importance to

the countless residents of Wisconsin who have not clearly and

specifically provided instructions regarding life-sustaining

treatment, as well as the health care providers who are

responsible for the care and provision of treatment to the

residents of Wisconsin. This decision is important due to the

uncertainty that it has created with respect to: its application to

withholding as well as withdrawal of treatment; what is to be

considered life-sustaining treatment; and what is to be

considered a sufficient prior statement of intentions.

3

ARGUMENT

I. THE DECISION BELOW IMPACTS AND IS OF

IMPORTANCE TO OTHERS BEYOND THE

IMMEDIATE PARTIES DUE TO THE

UNCERTAINTY IT HAS CREATED.

It is self-evident that any decision of the Wisconsin Supreme

Court involving the right of individuals to withhold or withdraw

life-sustaining medical treatment has the potential for impacting

every Wisconsin resident, as all persons must ultimately face

end of life issues. The statement of the court below that, if a

person is not in a persistent vegetative state,"as a matter of law,

it is not in the best interest of the ward to withdraw life-

sustaining treatment, including a feeding tube, unless the ward

has executed an advanced directive or other clear statement

indicating his or her desires" Jn re Edna MF. v. Eisenberg.,

210 Wis.2d 558,568, 563 N.W.2d 485,489-90 (Wis. 1997)

potentially impacts every Wisconsin citizen who has not

executed an advance directive or has failed to adequately make

a clear statement regarding his or her desires with respect to the

withholding or withdrawal of life-sustaining treatment.

For the court to state that absent a diagnosis of persistent

vegetative state, it can never be in the best interest to withdraw

life-sustaining treatment in the absence of sufficiently clear

prior intentions, directly impacts all residents who would wish

to avoid life sustaining treatment in certain circumstances, yet

4

have failed to properly convey such intentions and desires. The

true number of affected individuals cannot be determined

because, as the Wisconsin Supreme Court previously so

articulately summarized:

Relatively few individuals provide explicit

written or oral instructions concerning their

treatment preferences should they become

incompetent. The reasons for which are

undoubtedly myriad: ignorance, superstition,

carelessness, sloth, procrastination or the simple

refusal to believe it could happen to oneself.

This failure to act is not a decision to accept all

treatment, nor should society's increasing ability

to prolong the dying process make it one.

In the Matter of Guardianship of L.W., 167 Wis.2d 53,74-75,

482 N.W.2d 60,68 (footnote omitted)(Wis. 1992).

While the decision below is clearly important to individual

Wisconsin residents beyond parties involved, the health care

providers who are responsible for their care, treatment, and

abiding by the health care decisions are also significantly

impacted by this decision. WHCA cannot speak on behalf of all

Wisconsin health care providers, but it can stress the importance

of the decision below as it pertains to nursing facilities within

Wisconsin.

——————eeeee

5

Nursing facilities are regularly presented decisions involving

life-sustaining medical treatment. The decision below

significantly impacts the everyday provision of care for the

large number of incompetent residents within their facilities.

This is particularly true when read in conjunction with the

court's prior decision of Jn the Matter of Guardianship of L. W.,

167 Wis.2d 53, 482 N.W.2d 60 (Wis. 1992) which affirmed a

trial court's order that a guardian has the authority to withhold

or withdraw life-sustaining medical treatment, including

artificial nutrition and hydration, on behalf of a ward who is in

a persistent vegetative state, where it has been determined in

good faith that doing so would be in the ward's best interests.

While it was anticipated that the decision below would clarify

and provide facilities and other providers with guidance as to

guardians’ and other decisionmakers' authority, it has

unfortunately created great confusion and concern. This

confusion and uncertainty results as much from what the court

held, as what remains unstated.

The foremost concern of the nursing facilities is that the patients

in their care not be subjected to unwanted medical treatment,

and that the ability of a guardian to consent to or refuse such

treatment on their behalf should not depend solely upon

whether an incompetent patient is in a persistent vegetative state

or not. Coupled with this concern is that providers now face

great uncertainty as to respecting a guardian's decision given the

differing authority that guardians have, based on the ward's

6

medical classification. This uncertainty is the result of several

components of the decision below.

Unlike the holding of /n re L.W. that specifically authorized the

withdrawal or withholding of life-sustaining treatment, the

holding in the decision below refers only to the "withdrawal"

of treatment. While the decision below indicated that it

reaffirmed the holding of Jn re L.W., neither case explicitly

determined whether the court views withholding different from

withdrawal. Courts in other jurisdictions have often relied upon

a premise that there should be no legal distinction made

between the withholding and withdrawal of treatment. See, e.g.,

In re Conroy, 98 N.J. 321,369-370, 486 A.2d 1209,1234 (1985).

One is left to only presume that the decision below can be read

to indicate that a guardian cannot also withhold life-sustaining

treatment in the absence of an advance directive or other clear

statement of the ward's desires. Left unstated, however,

providers and guardians must wrestle with the uncertainty as to

whether the decision below should be equally applied to the

withholding of treatment.

A second area of concern resulting from the decision below lies

with what Wisconsin guardians and providers are to consider to

constitute "life-sustaining treatment." While the decision below

involved the withdrawal of a life-sustaining feeding tube, the

holding makes the blanket prohibition of the withholding of

life-sustaining treatment, See In re Edna M.F., 210 Wis.2d at

573, 486 N.W.2d at 492, leaving undefined as to what

4 ay hee ee ee eee

7

treatments are to be considered life-sustaining. While some

guidance can be found within the Wisconsin "living will"

statute, which contains a definition of "Life-sustaining

procedure,"! its utility is unclear given that the decision below

did not reference or discuss this definition.

Given the court's blanket prohibition that the withdrawal (and

presumably withholding) of life-sustaining treatment cannot be

in the best interests in the absence of sufficient prior indication,

guardians and health care providers are now faced with the

prospect of imposing or continuing any and all treatments that

might possibly constitute life-sustaining treatment when an

incompetent patient has not provided specific and sufficient

evidence of their desires as to such treatment.

As an illustration, cardiopulmonary resuscitation (CPR) may be

considered life-sustaining treatment for some individuals,

however, survival rates for unwitnessed arrests within nursing

homes and overall survival rates for elderly individuals are

' "Life-sustaining procedure" means any medical procedure or

intervention that, in the judgment of the attending physician, would serve only to

prolong the dying process but not avert death when applied to a qualified patient.

"Life-sustaining procedure" includes assistance in respiration, artificial

maintenance of blood pressure and heart rate, blood transfusion, kidney dialysis

and other similar procedures, but does not include:

(a) The alleviation of pain by administering medication or by

performing any medical procedure.

(b) The provision of nutrition or hydration.

Wis. Stats. § 154.01(5).

extremely low’. Yet it can be argued that the decision below

would prohibit a guardian, in the absence of a prior indication,

from consenting to a do-not-resuscitate order. Upon cardiac or

pulmonary arrest, the ward may needlessly suffer the traumatic

intervention that at best would be futile, at worse could cause

suffering with little or no hope of restoring life beyond a

comatose or vegetative state. Few would argue that this would

be in the best interests of an individual, however, the decision

below would appear to prohibit a guardian from weighing the

benefits of CPR against the near futility of such treatment.

The above example may be at the extreme of a literal

interpretation of the decision below, however, it illustrates the

uncertainty faced by providers and guardians. It is difficult to

understand why if this hypothetical patient were in a persistent

vegetative state, under /n re L.W., the guardian would be

permitted to apply objective standards in making the

determination as to whether such treatment is in the patient's

best interests.

Health care providers and guardians, without additional

clarification, are at a loss as to which treatments can or cannot

2 Ina study of 503 consecutive patients aged 70 and over who

received CPR, only 3.9% survived to hospital discharge. Only | of 116 of

patients with unwitnessed arrests survived. Donald Murphy, M.D. et. al.,

Outcomes of Cardiopulmonary Resuscitation in the Elderly, 111 ANNALS

INTERNL. MED., 199-205 (1989); See also, Sissay Awoke, M.D. et. al., Outcomes

of Skilled Cardiopulmonary Resuscitation in a Long-Term-Care Facility: Futile

Therapy?, 40 J. AM. GERIATR. SOc'y, 593-595 (1992).

9

be withheld or withdrawn in the absence of prior explicit

indications from the patient. This confusion and uncertainty is

the specific reason that WHCA submits this amicus curiae.

While members may hold differing opinions as to the result of

the decision below, there is general agreement that the status

quo is untenable.

It is understandable, laudable, and appreciated that the court

below chose to error on the side of preservation of life, and part

of the difficulty with this decision rests on the fact that the court

was presented, and therefore forced to grapple with, the issue of

the removal of a feeding tube. While ethicists and courts may

attempt to not distinguish between artificial feeding from other

life-sustaining treatment See Cruzan v. Director, Missouri

Department of Health, 497 U.S. 261, 288-289, 110 S.Ct. 2841,

2857 (1990) (O'Conner, J., concurring); Jn re L.W., 167 Wis.2d

at 70, 482 N.W.2d at 66; In re Conroy, 98 N.J. at 373, 486

A.2d at 1236, no matter how objectively one attempts to view

such removal as equal to withholding or withdrawal of any

treatment, it is nearly impossible to shed the "emotional

symbolism" of food. See Barber v. Superior Court, 147

Cal.App.3d 1006,1016, 195 Cal.Rptr. 484,490 (Ct.App. 1983).

This notwithstanding, providers and guardians still remain in a

situation where they are precluded from analyzing whether

treatment is truly appropriate. This may dictate that all

treatments that could be considered remotely life-sustaining

must be imposed out of uncertainty as to what is truly life-

10

sustaining and what evidence of a prior statement is sufficient

to overcome the presumption that such treatment must be

provided to the ward.

Such uncertainty, compounded by the difficulty of determining

what is to be considered sufficient indications of a prior clear

statement of an individual's desires, has raised provider

concerns above and beyond the desire to do what is best for the

residents for whom they are entrusted to provide care. With the

only guidance provided is that a thirty-year-old statement of "I

would rather die of cancer than lose my mind" is insufficient,

See Edna MF. 210 Wis.2d at 572, 563 N.W.2d at 491, a

determination as to what is sufficient is problematic and raises

concerns as to potential civil and criminal exposure.

There are civil concerns associated with continuing or imposing

treatment in spite of a guardian's decision to the contrary, due

to concern that the purported prior statements are insufficient

to overcome the judicial presumption created by the decision

below. While providers would not be without solid defense

arguments, litigation alleging battery, infliction of emotional

distress or similar claims have been brought against providers.

See, e.g., Estate of Leach v. Shapiro, 13 Ohio App.3d 393, 469

N.E.2d 1047 (Ohio Ct.App. 1984). There are also liability

concerns associated with abiding by a guardian's decision to

withhold or withdraw treatment. Family members who did not

fully agree with the decision of the guardian may attempt to

hold providers liable for such actions by asserting that the

ciamiaciaisiaiaeaiaiiaiiiiiaadiil

11

provider did so without sufficient evidence of the ward's

desires.

In addition, providers have concerns that the uncertainties in

this area may expose them to criminal sanctions for abiding by

a guardian's decision to withhold or withdraw treatment. While

most prosecutions have not ultimately resulted in the imposition

of criminal liability See, e.g., Barber v. Superior Court, 147

Cal.App.3d 1006, 195 Cal.Rptr. 484 (Ct.App. 1983) the concern

cannot be discounted that a zealous or aspiring district attorney

will attempt to prosecute a provider who acted on what was

believed to be sufficient evidence of a ward's desire.

Civil and criminal actions, while rare, remain a legitimate

concern in light of the uncertainties created by the decision

below. While liability concerns are generally theoretical in so

much as there appears general consensus that so long as proper

procedures are followed, most, if not all, liability ceases to

exists. However, the uncertainties discussed above as well as

uncertainties as to proper procedures for making determinations

regarding the sufficiency of an individual statement makes it

difficult for providers to dispel their liability concerns. Such

uncertainties are compounded by the separate standards that

guardians and providers are required to apply to incompetents

who are in a persistent vegetative state and those who are not.

12

II. THE DECISION BELOW CONFLICTS WITH

OTHER STATE SUPREME COURTS AND WITH

OTHER STATE STATUTES.

As adequately and succinctly detailed in Petitioner's Writ, the

Wisconsin Supreme Court's decision in this matter is in conflict

with that of several other state supreme court decisions as well

as in conflict with several state's statutes in this area [Petitioner

for Writ of Certiorari, pp.10-17]. Without repeating such

arguments, WHCA would merely contribute a brief and general

comment regarding this argument.

One may argue that differing interpretations of the best interest

standard and its application is entirely consistent with and

envisioned under Cruzan, wherein this Court stated that it is

constitutionally permissible for the State of Missouri to choose

the rule of decision which it did. However, the practical effect

of permitting Wisconsin to depart from other states in the

interpretation of the "best interests" application, places

individuals and health care providers in a difficult position.

Through the long line of caselaw in the area in what can

generally be described as the "right to die" decisions, the

concept of “best interests" has emerged as a fundamental

principle in this area of the law. However, several jurisdictions

have interpreted this concept, and the factors that may or may

not be considered in its application, with varying standards. A

concept that so permeates this area of the law should have some

= ee a ee eS

13

consistency in application. —

Whether an individual must endure treatment that he or she

would otherwise refuse if able, should not hinge upon the

particular state that the person happens to become incompetent.

Many elderly Wisconsin residents maintain separate residences

in other states in order to avoid the harsh Wisconsin winters.

These individuals and others in our modern mobile society

should not be dependent upon which side of a particular state's

border-line they happen to fall when they become ill or are

involved in a debilitating accident. This Court is in a position

to provide guidance and harmonize the differing application of

a standard so crucial as that of the "best interests" standard.

CONCLUSION

If all nursing facility patients were competent to make their own

medical decisions, or if all Wisconsin residents were to take the

time to execute an advance directive detailing their desires with

respect to life sustaining treatment, the decision below would be

of little significance to Wisconsin nursing facilities. However,

a significant portion of Wisconsin nursing home patients are not

competent, and the utilization of advance directives among US.

and Wisconsin population is surprising low.

WHCA is by no means requesting that guardians be granted

unfettered discretion to withhold or withdraw treatment, but

rather, that they not be judicially precluded from making a

reasoned analysis as to the appropriateness of the provision of

14

medical treatment. That the guardian, in making the best

interests determination, be able to apply the objective factors

such as those previously enunciated by the court below

including:

The degree of humiliation, dependence, and loss

of dignity probably resulting from the condition

and treatment; the life expectancy and prognosis

for recovery with and without treatment; the

various treatment options; and the risks, side

effects, and benefits of each of those options.

In re L.W. 167 Wis.2d at 86, 482 N.W.2d at 72 (citing In re

Conroy, 98 N.J. 321,363-364, 486 A.2d 1209,1231 (1985))

The holding of the decision below, coupled with the uncertainty

as to what is to constitute life sustaining treatment, may require

that guardians authorize any and all treatments that may be of

remote benefit, without allowing the guardian to weigh the

appropriate factors such as those listed above.

For all the forgoing reasons, the Writ of Certiorari should be

granted.

Respectfully submitted,

Paul G. Grant* Brian R. Purtell

DeWitt, Ross & Stevens, S.C. Wisconsin Health Care

Two East Mifflin Street Association, Inc.

Suite 600 121 South Pinckney Street

Madison, Wisconsin 53703 Suite 500

Madison, Wisconsin 53703

*Counsel of Record