1 Judicial intervention cannot always be avoided. Each hospital should consult its attorneys to ascertain whether courts in its jurisdiction mandate prior court consultation before ordering treatment for a competent adult refusing treatment, or discontinuing the treatment of an incompetent adult or a handicapped newborn.

2 In cases of emergency, consent is generally implied. Thus, a physician is legally authorized to treat a patient in emergency circumstances without the patient’s explicit consent. See, e.g., Chambers v. Nottebaum, 96 So. 2d 716, 718 (Fla. Dist. Ct. App. 1957); Jackovich v. Yokum, 237 N.W. 444, 449 (Iowa 1931). The nature of the emergency should be well-documented in the patient’s medical record as should all efforts to contact the patient’s closest relatives. If a second physician is available, a supporting opinion that a genuine emergency exists should also be made a part of the patient’s medical record.

3 See, e.g., O’Grady v. Wickman, 213 So. 2d 321, 326 (Fla. Dist. Ct. App. 1968); Brown v. Wood, 202 So. 2d 125, 130 (Fla. Dist. Ct. App. 1967); Congrove v. Holmes, 37 Ohio Misc. 95, 102, 308 N.E.2d 765, 769-770 (1973).

4 See, e.g., Lambert v. Park, 597 F.2d 236, 238-239 n.7 (10th Cir. 1979); O’Grady, 213 So. 2d at 326; Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960), clarified in 187 Kan. 186, 354 P.2d 670 (1960); Congrove, 37 Ohio Misc. at 101, 308 N.E.2d at 769.

5 See, e.g., Holmes v. Silver Cross Hospital, 340 F. Supp. 125 (N.D. Ill. 1972) (blood transfusion contrary to patient’s religious beliefs); Winters v. Miller, 446 F.2d 65 (2d Cir. 1971). In at least one case, the family of a terminally ill patient connected to a respirator sued the treating physician and hospital on the theory that their refusal to disconnect the respirator violated the patient’s constitutional rights. See Leach v. Shapiro, Civ. Ac. C-81-2559-A, Summit Cty., Ohio (1982).

6 211 N.Y. 125, 105 N.E. 92 (1914).

7 Id. at 129-30, 105 N.E. at 93.

8 See, e.g., Ditlow v. Kaplan, 181 So. 2d 226, 228 (Fla. Dist. Ct. App. 1965); Russell v. Harwick, 166 So. 2d 904 (Fla. Dist. Ct. App. 1964); Bowers v. Talmage, 159 So. 2d 888 (Fla. Dist. Ct. App. 1963).

9 See, e.g., Pegram v. Sisco, 406 F. Supp. 776, 780 (W.D. Ark.), aff’d without op. 547 F.2d 1172 (8th Cir. 1976); McPhee v. Bay City Samaritan Hospital, 10 Mich. App. 567, 572, 159 N.W.2d 880, 882 (1968); Bly v. Rhoads, 216 Va. 645, 651-53, 222 S.E.2d 783, 788-89 (1976).

10 See, e.g., Natanson, 186 Kan. at 411, 350 P.2d at 1107; Woolley v. Henderson, 418 A.2d 1123, 1129-1130 (Me. 1980); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Rea v. Gaulke, 442 S.W.2d 826, 831 (Tex. Civ. App. 1969).

11 418 A.2d 1123 (1980).

12 Id. at 1131. See also Desai v. United States, 489 F. Supp. 722, 727 (E.D. Pa. 1980); Fuller v. Starnes, 597 S.W.2d 88, 90 (Ark. 1980); Sherrill v. McBride, 603 S.W.2d 365, 366-367 (Tex. Civ. App. 1980); but see Creasey v. Hogan, 48 Or. App. 683, 695, 617 P.2d 1377, 1383 (Or. Ct. App. 1980); Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980).

13 See, e.g., Canterbury v. Spence, 464 F.2d 772, 786-87 (D.C. Cir. 1972); Cobbs v. Grant, 8 Cal. 3d 229, 243-245, 502 P.2d 1, 10-11, 104 Cal. Rptr. 505, 514-515 (1972); Crain v. Allison, 443 A.2d 558, 562 (D.C. 1982); Russell, 166 So. 2d at 905; Wilkinson v. Vesey, 110 R.I. 606, 625, 295 A.2d 676, 688-689 (R.I. 1972); Trogun v. Fruchtman, 58 Wis. 2d 569, 604, 207 N.W. 2d 297, 315 (1973).

14 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

15 Id. at 243, 502 P.2d at 10, 104 Cal. Rptr. at 514. A variation of this patient-centered standard would require the physician to ascertain what the particular patient would want to know in the circumstances. This is a subjective rather than objective standard.

16 See President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment: Ethical, Medical and Legal Issues in Treatment Decisions, (1983) [hereinafter cited as Commission Report]; Ellis, Letting Defective Babies Die: Who Decides?, 7 Am. J.L. & Med. 393 (1982).

17 See, e.g., Satz v. Perlmutter, 362 So. 2d 160 (Fla. Dist. Ct. App. 1978); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

18 See, e.g., In the Matter of Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978). See also Hoyt v. St. Mary’s Rehabilitation Center, No. 77-4555 (Hennepin County, Minn., Dist. Ct., February 13, 1981) (patient removed from a do not resuscitate list).

19 98 N.J. 321, 486 A.2d 1209 (1985).

20 See Conroy, 98 N.J. at 335, 486 A.2d at 1216.

21 1) a court must decide the patient is incompetent to make decisions concerning his or her medical treatment; 2) the court must appoint a legal guardian; 3) a person who believes the patient’s best interests would be served by withholding or withdrawing treatment must notify the state ombudsman for the institutionalized elderly; 4) the ombudsman must begin an inquiry; 5) the attending physician and nurses should provide evidence about the resident’s condition; 6) two physicians, unaffiliated with the nursing home must confirm the diagnosis. If all of the doctors agree that the patient’s condition is sufficiently grave, and all the other tests are met, the guardian and attending physician will be permitted to withdraw treatment. See id. at 381-385, 486 A.2d at 1240-1242.

22 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).

23 Id. at 1017, 195 Cal. Rptr. at 491.

24 Id. at 1018, 195 Cal. Rptr. at 491.

25 18 Mass. App. Ct. 200, 464 N.E.2d 959 (1984).

26 Id. at 209, 464 N.E.2d at 964.

27 Id. at 210, 464 N.E.2d at 965.

28 425 A.2d 156 (Del. Ch. 1980).

29 42 U.S.C.S. § 5101-5116 (Supp. 1985).

30 42 U.S.C.S. §5102(3) (Supp. 1985).

31 Wanzer, , Adelstein, , Cranford, , Federman, , Hook, , Moertel, , Safar, , Stone, , Taussig, & Van Eys, , The Physician’s Responsibility Toward Hopelessly Ill Patients, 310 New Eng. J. Med. 955 (1984)CrossRefGoogle ScholarPubMed. See also Dresser and Boisaubin, Ethics, Law and Nutritional Support, 145 Arch. Int. Med. 122 (1985).

32 Id. at 959; Moyers, , Legal Aspects of Withdrawing Nourishment from an Incurably Ill Patient, 145 Arch. Int. Med. 125 (1985)CrossRefGoogle Scholar; contra Siegler, & Weishand, , Against the Emerging Stream: Should Fluids and Nutritional Support Be Discontinued? 145 Arch. Int. Med. 129 (1985)CrossRefGoogle ScholarPubMed.

33 Brophy v. New England Sinai Hospital, Inc., No. 85 E0009-GI slip op., (Mass. Probate Ct. Norfolk Div., Oct. 21, 1985).

34 See id. at 18.

35 In re Hier, 18 Mass. App. Ct. 200, 464 N.E.2d 959 (1984).

36 Brophy, No. 85 E0009-GI slip op. at 30.

37 See id. at 42-43.

38 Barber, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).

39 Bouvia v. County of Riverside, No. 159780 (Cal. App. Dept. Super. Ct. 1983).

40 The patient’s right to privacy was described by the Massachusetts Supreme Judicial Court as follows:

Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 742, 370 N.E.2d 417, 426 (1977). It should be noted, however that the United States Supreme Court has never considered whether an individual’s right to refuse medical treatment emanates from the constitutional right of privacy. Sec Eichner v. Dillon, 73 A.D. 2d 431, 426 N.Y.S.2d 517 (1980).

41 See In re Osborne, 294 A.2d 372 (D.C. 1972); In re Estate of Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965); In re Melideo, 88 Misc. 2d 974, 390 N.Y.S.2d 523 (1976).

42 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984). See also Tune v. Walter Reed Army Medical Ctr., No. 85-0697, slip op. (D.D.C. March 4, 1985) (state’s interest did not outweigh the right of a 71 year old terminal cancer patient to have her life-sustaining respirator removed).

43 The court rejected the hospital’s argument that the patient was “too depressed” to be competent to decide the course of his treatment. The court based its decision on the patient’s common law and constitutional rights to privacy. Bartling, 163 Cal. App. 3d at 193-94, 209 Cal. Rptr. at 224.

44 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978).

45 Candura, 6 Mass. App. Ct. at 384, 376 N.E.2d at 1236; see also Palm Springs General Hospital v. Martinez, No. 71-12687, slip op. at 1-2. (11th Cir. Dade Cty. Fla., 1971), where the court denied the hospital’s petition to order a blood transfusion for an elderly patient, based on the right of a “conscious adult patient who is mentally competent . . . [to] refuse medical treatment, even where the best medical opinion deems it essential to save her life”; Erickson v. Dilgard, 44 Misc. 2d 27, 28, 252 N.Y.S.2d 705, 706 (1962), where the court upheld an individual’s right to refuse a blood transfusion, basing its decision on the individual’s right to have the “final say” as to his medical treatment.

46 362 So. 2d 160, (Fla. Dist. Ct. App. 1978).

47 Id. at 162.

48 156 N.J. Super. 282, 383 A.2d 785 (1978).

49 Id. at 290, 383 A.2d at 789 (1978).

50 88 Misc. 2d 974, 390 N.Y.S.2d 523 (1976).

51 32 Ill. 2d 361, 205 N.E.2d 435 (1965).

52 294 A.2d 372 (D.C. 1972).

53 Id. at 373-374; see also In re Lydia E. Hall Hospital, 116 Misc. 2d 477, 455 N.Y.S.2d 706 (1982) (patient’s decision to forego extraordinary care made prior to becoming comatose).

54 See Application of the President and Directors of Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964); Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976); Powell v. Columbia Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965).

55 331 F.2d 1000 (D.C. Cir. 1964).

56 Id. at 1009.

57 277 Md. 336, 353 A.2d 634 (1976).

58 49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965).

59 42 N.J. 421, 201 A.2d 537, cert. denied 377 U.S. 985 (1964). See also Crouse Irving Memorial Hospital, Inc. v. Paddock, 127 Misc. 2d 101 (1985) (court ordered that blood transfusions be administered over religious objections of a pregnant Jehovah’s Witness to safeguard the health of her child in utero); cf. Mercy Hospital, Inc. v. Jackson, 62 Md. App. 409, 489 A.2d 1130 (1985) (court affirmed right of pregnant Jehovah’s Witness to refuse blood transfusion during a Ceasarean section where her refusal would not endanger the fetus); Randolph v. The City of New York, New York Health and Hospitals Corp., No. 17598-75, slip op. (N.Y. County Sup. Ct„ Oct. 1, 1984). The court held that a physician did not have the right to override the religiously-based objections to a blood transfusion of a pregnant Jehovah’s Witness, notwithstanding the State’s interest in maintaining the ethical integrity of the medical profession. The court concluded: “The ethical integrity of the medical profession is not tarnished when a competent adult rejects proposed treatment, even life-saving treatment, when a physician honors the informed choice of his patient.” Id. at 42.

60 102 Misc. 2d 184, 423 N.Y.S.2d 580 (1979), modified sub nom. Eichner v. Dillon, 73 A.D.2d431,426N.Y.S.2d 517, modified and consolidated sub nom. In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

61 102 Misc. 2d at 205, 423 N.Y.S.2d at 594. See also Perlmutter, 362 So. 2d at 162-163; Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

62 Georgetown College, 331 F.2d at 1009.

63 See United States v. George, 239 F. Supp. 752, 754 (D. Conn, 1965); Georgetown College, 331 F.2d at 1009; Bouvia v. County of Riverside. No. 159780 (CaL-App. Dept. Super. Ct. 1983); N.Y. Times, Dec. 22, 1982 at B 11, col. 1; John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 582-83, 279 A.2d 670, 673 (1971), overruled in part, In re Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1984); In re Yetter, 62 Pa. D. & C. 2d 619, 623 (1973).

64 239 F. Supp. 752 (D. Conn. 1985).

65 239 F. Supp. at 754.

66 Bouvia, No. 159780 (Cal. App. Dept. Super. Ct. 1983).

67 N.Y. Times, Feb. 7, 1984, at A 20, col. 6.

68 N.Y. Times, Feb. 3, 1984, at A 1, col. 3.

69 58 N.J. 576, 279 A.2d 670 (1971).

70 Heston, 58 N.J. at 582-83, 279 A.2d at 673. See also Crouse Irving Memorial Hospital v. Paddock, 127 Misc. 2d 101, 485 N.Y.S.2d 443 (1985), where the court authorized a hospital to administer blood transfusions to a pregnant Jehovah’s Witness not only to safeguard the fetus’s health but to assure the treating physician necessary latitude in treating the patient. The court wrote: “When a patient puts her doctor in charge of a surgical procedure, she necessarily makes him responsible for the conduct of the operation. Every such grant of responsibility should be accomplished by authority sufficient to properly carry out the delegated responsibilities.” Id. at 104, 485 N.Y.S.2d at 446.

71 98 N.J. 321, 486 A.2d 1209 (1985).

72 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922 (1976).

73 In In re Quinlan, the New Jersey Supreme Court articulated the following balancing test to be applied in cases where a patient refuses medical treatment necessary to save or preserve his life: “We think that the State’s interest weakens and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point where the individual’s rights overcome the state’s interest.” Id. at 41, 355 A.2d at 664.

Karen Quinlan’s physician determined that there was no “reasonable possibility” that the 21 year old patient who was in a persistent vegetative state would emerge from a coma and return to a “cognitive sapient state.” As a result, the court authorized the physicians to disconnect the patient’s life support system as long as the guardian, family and hospital ethics committee agreed with the decision. The court was careful to distinguish its decision from its earlier opinion in Heston, on the ground that the Heston patient had an excellent prognosis for complete recovery and that a blood transfusion, unlike a respirator, requires minimal bodily invasion. Id. at 39, 355 A.2d at 663.

The logic of the Quinlan test is subject to question. No reason exists why a person’s privacy rights should decrease merely because a medical procedure is “non-invasive” or because he has a good chance of recovery. Furthermore, whether a particular procedure is “invasive” is a subjective judgment. If a transfusion is viewed as merely involving a prick of the skin when the needle is inserted, it might be considered non-invasive. If it is viewed as introducing a foreign substance which travels throughout the patient’s body, it may be considered invasive.

74 156 N.J. Super. 282, 383 A.2d 785 (1978).

75 Id. at 290, 383 A.2d at 789.

76 Bartling, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220.

77 Id. at 195, 209 Cal. Rptr. at 225.

78 Conwy, 98 N.J. 321, 486 A.2d 1209 (1985).

79 Barber, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).

80 Hier, 18 Mass. App. Ct. 200, 464 N.E.2d 959 (1984).

81 Severns, 425 A.2d 156 (Del. Ch. 1980).

82 Bartling, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984).

83 Candura, 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978).

84 Perlmutter, 362 So. 2d 160 (Fla. Dist. Ct. App. 1978).

85 Quackenbush, 156 N.J. Super. 282, 383 A.2d 75 (1978).

86 Melideo, 88 Misc. 2d 974, 390 N.Y.S.2d 523 (1976).

87 Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965).

88 Osborne, 294 A.2d 372 (D.C. 1972).

89 Georgetown, 331 F.2d 1000 (D.C. Cir. 1964).

90 Hamilton, 277 Md. 336, 353 A.2d 634 (1976).

91 Powell, 49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965).

92 Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964).

93 Eichner, 102 Misc. 2d 184, 423 N.Y.S.2d 580 (1979), modified sub nom. Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980).

94 George, 239 F. Supp. 752 (D. Conn. 1965).

95 Bouvia, No. 159780 (Cal. App. Dept. Super. Ct. 1983).

96 Heston, 58 N.J. 576, 279 A.2d 670 (1971).

97 Quinlan, 70 N.J. 10, 356 A.2d 647, cert. denied, 429 U.S. 922 (1976).

98 In the absence of a signed waiver, the treating physician potentially would be subject to malpractice claims for failing to administer necessary treatment. Even where a waiver has been signed, its validity might be subsequently challenged, on the basis of duress or mental incompetence. The physician might also be vulnerable to a variety of criminal homicide charges and to charges of aiding and abetting a suicide.

Conversely, if the physician refuses to comply with the patient’s wishes and administers unwanted treatment, he might be subject to claims of battery, malpractice and civil rights violations. See supra notes 3-5.

99 Thirty-five jurisdictions have enacted statutes pertaining to the termination of life support. Society for the Right To Die, the Physician and the Hopelessly Ill Patient, Legal, Medical and Ethical Guidelines, 35-82 (1985).

100 Existing Natural Death statutes vary as to the circumstances where a person can exercise a directive. In some statutes, the directive is effective only if a patient knows he has a terminal condition at the time he issues the directive; some states limit the directive to patients who will die very soon; some require periodic reaffirmation; some provide for nullification of the directive during pregnancy; some impose a waiting period after the patient discovers his terminal condition before the directive is binding. See id.

101 Some existing Durable Power of Attorney Statutes still require court approval for decisions regarding the person as opposed to the person’s property. Other variations in existing Durable Power of Attorney Statutes are outlined in the Commission Report, supra note 16, at 390. See also Note, Appointing an Agent to Make Medical Treatment Choices, 84 Colum. L. Rev. 985, 1012-25 (1984).

102 John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921, 926 (Fla. 1984).

103 Id.

104 Where state law authorizes, mandates or approves of the formation of standing Hospital Ethics Committees (See, e.g., In re Quinlan, 70 N.J. at 50-51, 54-55, 355 A.2d at 668-69, 671), these committees should also be consulted.

The Washington Supreme Court recently upheld the validity of a release signed by a Jehovah’s Witness who refused to accept blood transfusions. Shorter v. Drury, 695 P.2d 116 (Wash. 1985).

105 This discussion does not apply to the patient who satisfies the criteria for clinical death in states that have adopted a “brain death” law similar to the Uniform Determination of Death Statute. The Uniform Determination of Death Statute provides:

Uniform Determ. of Death Act. § 1, 12 U.L.A. 271 (Supp. 1985).

Other states have approved the “brain death” standard through common law. See, e.g., Petition of Jones, 107 Misc. 2d 290, 292, 433 N.Y.S.2d 984, 986 (1980); In re Bowman, 94 Wash.2d 407, 416, 617 P.2d 731, 736 (1980).

The brain death criteria have been criticized for being overly rigid, allowing many severely ill patients who previously would have been declared dead to be maintained on life support systems because their electroencephelograms (“EEG”) rhythms hover above baseline. Researchers from the Bowman Gray School of Medicine suggest that instead of relying on EEG rhythms, physicians should be concerned with the loss of amplitude for brain waves, combined with radiologue imaging, and chemistry studies. See Spudis, , Paradoxical Contributions of EEG During Protracted Dying, 41 Archives of Neurology 153 (1984)CrossRefGoogle ScholarPubMed.

106 See, e.g., Price v. Sheppard, 239 N.W.2d 905 (Minn. 1976); Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978).

107 See, e.g., In re Schiller, 148 N.J. Super 168, 372 A.2d 360 (1977).

108 COMMISSION REPORT, supra note 16, at 123, n.7.

109 See Rogers v. Okin, 634 F.2d 650, 657 (1st Cir. 1980); Winters v. Miller, 446 F.2d 65, 68 (2d Cir. 1971).

110 In re Yetter, 62 Pa. D. & C. 2d 619, 623 (1972).

111 6 Mass. App. Ct. 377, 376 N.E.2d at 1232 (1978).

112 Id. at 383-84, 376 N.E.2d at 1235-56.

113 148 N.J. Super. 168, 372 A.2d 360 (1977).

114 Id. at 185-86, 372 A.2d at 369-70.

115 331 F.2d at 1002.

116 Id. at 1006.

117 Schiller, 148 N.J. Super, at 180-81, 372 A.2d at 367.

118 563 S.W.2d 197, 213-14 (Tenn. 1978).

119 Id. at 213.

120 In re Ingram, 102 Wash. 2d 827, 841, 689 P.2d 1363, 1371 (1984).

121 Id. at 841, 689 P.2d at 1370.

122 Schiller, 148 N.J. Super, at 184, 372 A.2d at 368-69.

123 COMMISSION REPORT, supra note 16, at 123.

124 See, e.g., Schiller, 148 N.J. Super, at 180-81, 372 A.2d at 367.

125 In re Colyer, 99 Wash. 114, 119-21, 660 P.2d 738, 741-43 (1983), modified in In re Hamlin, 102 Wash. 2d 810, 819-21, 689 P.2d 1372, 1378 (1984).

126 373 Mass. 728 at 745, 370 N.E.2d 417, 427 (1977).

127 See, e.g., John F. Kennedy Memorial Hospital v. Bludworth, 452 So. 2d 921 (Fla. 1984); In re Hamlin, 102 Wash. 2d at 818, 689 P.2d at 1377; Colyer, 99 Wash, at 127-28, 660 P.2d at 746.

128 See, e.g., Quinlan, 70 N.J. at 55, 355 A.2d at 664-666; Colyer, 99 Wash, at 128-29, 660 P.2d at 746-47.

129 See, e.g., Severns v. Wilmington Medical Center, Inc., 42 A.2d 1334, 1347-50 (Del. 1980), enforced, 425 A.2d 156, 161 (Del. Ch. 1980); Saikewicz, 373 Mass. at 755-57, 370 N.E.2d at 432-34; See also, Buchanan, Medical Paternalism or Legal Imperialism: Not the Only Alternatives for Handling Saikewicz-type Cases, 5 Am. J.L. & Med. 97 (1979); Annas, Reconciling Quinlan and Saikewicz: Decision Making for the Terminally III Incompetent, 4 Am. J.L. & Med. 367 (1979); Brooks, Withholding Treatment and Orders Not to Resuscitate, in Legal and Ethical Aspects of Treating Critically and Terminally III Patients, (A.E. Doudera & J.D. Peters eds. 1982).

Brooks described six decision-making models for withholding life-saving or life-prolonging treatment;

1. (1)

   (1) the Saikewicz model which requires prior court approval;

2. (2)

   (2) the Quinlan model which requires approval from the hospital ethics committee, the patient’s physician, the patient’s guardian and the family;

3. (3)

   (3) the Massachusetts General Hospital model which divides patients into four treatment categories, requiring different levels of care for each;

4. (4)

   (4) the Beth Israel Hospital model which requires physicians to discuss decisions not to resuscitate with a committee of other physicians and nurses, the patient, and the patient’s family;

5. (5)

   (5) the Northwestern Memorial Hospital model which allows the physician alone to make the decision for an incompetent patient, and

6. (6)

   (6) the ad hoc or “no established policy” model.

Id. at 109-110. Since Brooks published her article, other procedures have been suggested. See supra text accompanying notes 29-32.

130 452 So. 2d 921 (Fla. 1984).

131 Id. at 926.

132 445 So. 2d 365, 372 (Fla. Dist. Ct. App. 1984).

133 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).

134 Id. at 1020-21, 195 Cal. Rptr. at 492-93.

135 102 Wash. 2d at 819-20, 689 P.2d 1378.

136 The court modified its earlier holding in In re Colyer which required the appointment of a guardian, but no additional court approval. Id. at 818, 689 P.2d at 1377.

137 253 Ga. 439, 321 S.E.2d 716 (1984).

138 Id. at 44, 321 S.E.2d at 723.

139 40 Conn. Supp. 127, 482 A.2d 713 (1984).

140 Id. at 140, 482 A.2d at 721.

141 Quinlan, 70 N.J. at 50, 355 A.2d at 669.

142 It is unclear whether the Quinlan decision actually required the appointment of a legal guardian. The court was not asked to decide this question since the patient’s father had already been appointed legal guardian.

143 A “justiciable controversy” might occur when close relatives disagree about the manner in which to proceed. For example, in Petition of Nemser, 51 Misc. 2d 616, 273 N.Y.S.2d 624 (1966), two children of an 80 year old woman applied to be appointed guardian to consent to the amputation of their mother’s foot. Because the third child, a physician, challenged the petition, a court order was necessary to resolve the controversy.

Similarly, the court should be consulted if a patient’s closest relative demands treatment which is different from that originally requested by the patient. For example, in Collins v. Davis, 44 Misc. 2d 622, 254 N.Y.S.2d 666 (1964), the patient initially sought treatment, but subsequently became incompetent. When his wife refused to consent to life-saving treatment on her husband’s behalf, the hospital appropriately requested the court to resolve the controversy.

144 Quinlan, 70 N.J. at 50, 355 A.2d at 668-69.

145 99 Wash. 114, 660 P.2d 738 (1983).

146 Id. at 129-30, 660 P.2d at 746.

147 Id. at 136, 660 P.2d at 750.

148 Id.

149 Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984).

150 Id. at 819, 689 P.2d at 1378.

151 Id. at 816-17, 689 P.2d at 1376.

152 373 Mass. 728, 370 N.E.2d 417 (1977).

153 Id. at 755-59, 370 N.E.2d at 433-35.

154 Id. at 758-59, 370 N.E.2d at 434-435. However, Massachusetts courts do not require prior court approval to withhold treatment. About 6 months after the Saikewicz decision, a Massachusetts appellate court heard the case of Shirley Dinnerstein, an elderly patient who was in an irreversible vegetative state and terminally ill. Dinnerstein’s family and physician sought a declaratory judgment from the court that the physician could authorize a “no code” order on the patient’s medical chart without judicial authorization. (A “no code” order is an order written in a patient’s medical chart which directs medical personnel not to attempt to resuscitate the patient after cardiac arrest.) Distinguishing between treatment which might result in a remission of symptoms (as in Saikewicz), from treatment which merely suspends the acts of dying (as in Dinnerstein), the Dinnerstein court held that no prior judicial approval was required for “no code” orders. In re Dinnerstein, 6 Mass. App. Ct. 466, 476, 380 N.E.2d 134, 139 (Mass. App. Ct. 1978).

155 380 Mass. 629, 405 N.E.2d 115 (1980).

156 Id. at 646, 405 N.E.2d at 120.

157 Id. 380 Mass. at 637, 405 N.E.2d at 121.

158 73 A.D. 2d 431, 426 N.Y.S.2d 517 (N.Y. App. Div. 1980).

159 The Appellate Division recommended the following procedure:

1. (1)

   (1) The attending physician must certify that the patient is terminally ill, and in an irreversible, permanent or chronic vegetative coma and that prospects of regaining cognitive brain function are remote.

2. (2)

   (2) The person to whom the foregong presentation is made, whether it is a family member, someone with a close personal relationship or an official of the hospital, may present the prognosis to an appropriate hospital committee which either shall confirm or reject it.

3. (3)

   (3) Upon confirmation of the prognosis, the person who secured it may commence proceeding pursuant to the State Mental Hygiene Law for appointment as the committee of the incompetent and for permission to have life-sustaining measures withdrawn.

4. (4)

   (4) The attorney general and district attorney must be given notice.

5. (5)

   (5) A guardian ad litem shall be appointed to assure that the interests of the patient are protected.

6. (6)

   (6) If the court agrees that the extraordinary life-saving means should be discontinued, none of the participants in the decision-making process will be subject to civil or criminal liability as a result of the termination of such treatment.

Id. at 476, 426 N.Y.S.2d at 550.

160 Id. at 474-75, 426 N.Y.S.2d at 549 (quoting Saikewicz, 373 Mass. at 757, 370 N.E.2d at 434).

161 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1980).

162 Id. at 363,382-84,420 N.E.2d at 64, 74,438 N.Y.S.2d at 266, 276. The Supreme Court of Washington also urged its state legislature to establish guidelines regarding these decisions. See In Re Hamlin, 102 Wash. 810, 689 P.2d at 1379; See also Williams, Brother Fox and John Storar: An Analysis of the New York Court of Appeals Decision, in Legal and Ethical Aspects of Treating Critically and Terminally III Patients (A.E. Doudera & J.D. Peters, eds. 1982); Baron, Assuring “Detached But Passionate Investigation and Decision:” The Role of Guardians Ad Litem in Saikewicz-type Decisions, 4 Am. J.L. & Med. Il l (1978); Suber & Tabor, Withholding of Treatment From the Terminally III, Incompetent Patient: Who Decides? Parts I and II, J. of Am. Med. Assoc. (1982).

163 See supra notes 99-101.

164 See, e.g., Saikewicz, 373 Mass. 728, 370 N.E.2d 417; In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984); In re Ingram, 102 Wash. 2d 827, 689 P.2d 1363 (1984).

165 See Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982); Saikewicz, 373 Mass. at 749-755, 370 N.E.2d at 430-32; In re Storar, 52 N.Y.2d at 380-81, 420 N.E.2d at 72, 438 N.Y.S.2d at 275. In re Storar is a consolidation of two cases, Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980) and In Re Storar, 106 Misc. 2d 880, 433 N.Y.S. 388 (1980). Eichner involved a terminally ill priest who had previously expressed his desire not to be sustained on life support. Storar involved an incompetent resident of a state mental institution whose mother refused transfusions on her adult son’s behalf. While the Court of Appeals affirmed the right of a third party to apply the “substituted judgment “ of the patient where the patient had clearly expressed his or her wishes before becoming incompetent (Eichner), it refused to acknowledge that a third party had the authority to substitute his or her own judgment for a patient where the patient had never been sufficiently competent to articulate his desires (Storar).

166 Saikewicz, 373 Mass. at 751-53, 370 N.E.2d at 431.

167 In Saikewicz, the court was unable to examine the patient’s prior statements since the patient had never been competent. It nevertheless felt comfortable speculating about his wishes. Other courts, e.g., In re Storar 52 N.Y.2d at 380-81,420 N.E.2d at 72-73,438 N.Y.S.2d at 274-75, have been reluctant to engage in speculation regarding patients who have never been competent. Paradoxically, at least two courts have considered the statements of incompetent patients after they became incompetent. See In re Hier, 18 Mass. App. Ct. 200, 208-09,464 N.E.2d 959, 964 (Mass. App. Ct. 1984); Ingram, 102 Wash, at 838-44, 689 P.2d at 1369-72. In Hier, the court considered the expressed wishes of a psychotic patient who opposed surgical procedures necessary to provide her with nourishment. The court took her statements into consideration even though she was legally incompetent “because they are indicative of the burden she feels in being subjected to advanced medical technologies.” Id. at 18 Mass. App. Ct. at 209-10, 464 N.E.2d at 965. In Ingram, the court weighed the facts that: 1) the legally incompetent patient had stated on several occasions that she did not want surgery to remove her larynx and 2) that her inability to understand the need for surgery would affect her ability to cope with the attendant loss of speech. Ingram, 102 Wash, at 841, 689 P.2d at 1370.

168 102 Wash, at 827, 689 P.2d at 1369.

169 Id. at 829, 689 P.2d at 1370.

170 Id. at 840, 689 P.2d at 1370.

171 98 N.J. 321, 486 A.2d 1209 (1985),

172 Id. at 360, 486 A.2d at 1229 (1985).

173 Id. at 365, 486 A.2d at 1232.

174 Id. at 366, 486 A.2d at 1232.

175 Id.

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

177 Id. at 161.

178 In re Eichner, 1023 Misc. 2d 184, 423 N.Y.S.2d 580 (1979), modified sub nom. Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980).

179 In re Eichner, 52 N.Y.2d at 383, 420 N.E.2d at 74, 438 N.Y.S.2d at 276.

180 452 So. 2d 921 (Fla. 1984).

181 Id. at 923.

182 In Custody of a Minor, 385 Mass. at 710, 434 N.E.2d at 609, 379 N.E.2d 1053, 1065, the court found the “substituted judgment” standard consistent with the “best interests of the child” test when it upheld an order requiring treatment for a child suffering from leukemia.

Another variation of the “best interest” standard was applied by the Minnesota Supreme Court in In re Torres, 357 N.W.2d 332 (Minn. 1984). Torres was decided under the Minnesota guardianship statute which obligates a conservator to act in the “best interests” of the ward. The court held that the conservator was empowered to order the removal of the life support systems from a man who had been comatose and dependent on life support for eight months.

183 In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1980).

184 Id. at 380-81, 420 N.E.2d at 73, 438 N.Y.S.2d at 275. See also Strunk v. Strunk, 445 S.W.2d 145, 149 (Ky. App. 1969), where the court authorized a kidney transplant from an incompetent to his brother, finding the procedure to be in the “best interest” of the incompetent because the incompetent was extremely emotionally dependent on his brother; Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979), where the court approved the removal of the kidney from a mentally retarded 14 year old for donation to her brother on the basis that the donor would benefit “psychologically” from participation in the procedure. Id. at 500. Contra In re Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975), where the court refused to grant a petition to remove the kidney of a mentally incompetent schizophrenic to donate to his sister since the incompetent’s guardian did not consent and no one had demonstrated that the ward would benefit from the procedure.

185 Hamlin, 102 Wash, at 815, 689 P.2d at 1375.

186 Conroy, 98 N.J. at 365, 486 A.2d at 1231.

187 Id.

188 40 Conn. Supp. 127, 482 A.2d 713 (Conn. Super. Ct. 1984).

189 W. at 139, 482 A.2d at 721.

190 Saikewicz, 373 Mass. at 754, 370 N.E.2d at 432.

191 Conroy, 98 N.J. at 367, 486 A.2d at 1232-33.

192 Law Reform Commission of Canada. Euthanasia, Aiding Suicide, and Cessation of Treatment. (Ottawa, Canada 1983). Reform Commission of Canada, November 1983.

193 See Law-Medicine Notes, 310 New Eng. J. Med. 297 (1984).

194 Some states have enacted substituted consent statutes, which allow a health care provider to treat a patient without consent from that patient. The consent may come from a relative (spouse, child, parent, adult sibling, grandparent or adult grandchild). Such statutes may limit the liability of the health care provider. See, e.g., Md. Pub. Health Code Ann. §20-107 (1982).

195 States having statutes concerning who may consent include Georgia, Idaho, Louisiana, Maryland, Maine, Mississippi, Missouri and North Carolina. J. Ludlow, Informed Consent 50 (American Hospital Association 1978).

196 See supra text accompanying notes 127-163.

197 In New Jersey, once the guardian is appointed, no additional court approval is needed for consent. In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985). In New York, a guardian may consent without additional court approval. In re Eichner, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

198 In Illinois, a guardian must get prior court approval before terminating life support. In re Haymer, 115 Ill. App. 3d 349, 450 N.E.2d 940 (Ill. App. Ct. 1983). The same is required in Massachusetts. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

199 “Life support” includes all treatment used to maintain life, including respirators, antibiotics, transfusions, etc. Decisions to discontinue life support include decisions not to continue antibiotic therapy as well as decisions to remove a respirator. Commentators disagree about whether the decision to remove a feeding tube should be treated in the same way as the decision to remove a respirator. See supra note 16 and accompanying text.

200 Provisions should be made in third party reimbursement contracts for payment to the consulting physician. Although some courts, notably the Supreme Court of Washington, advocate the use of formal prognosis committees to confirm the treating physician’s diagnosis, such an approach is unlikely to be successful because of the administrative difficulty of convening such a committee each time this type of decision must be made and because of the reluctance which a committee of physicians will have in reversing a recommendation of an attending physician. In re Colyer, 99 Wash. 2d 114, 136-37, 660 P.2d 738, 750-57 (1983).

201 One drawback in this proposed procedure is that it burdens the physician with ferreting out information about the family’s motives. To make this responsibility less burden-some, the physician should only be required to act in good faith.

202 Because special interest groups outside the hospital are demonstrating an increasing willingness to intervene in patients’ decisions concerning their right to die, standing to request the convening of the committee should be limited to those people who have a substantial personal interest in the matter.

203 The American Hospital Association (AHA) advocates the formation of Ethics Committees that are advisory, as opposed to decision-making bodies. In Guidelines issued in January, 1984, the AHA General Council wrote:

American Hospital Association, Hospital Committee on Biomedical Ethics, Guidelines (Jan. 27, 1984).

In its report issued in January, 1985, the Adjunct Legal Task Force on Biomedical Ethics of the American Hospital Association raised the following concerns when Ethics Committees assume a quasi-judicial role, hearing evidence and making final decisions concerning patient care:

American Hospital Association, Office of Legal and Regulatory Affairs, Report of the Adjunct Legal Task Force on Biomedical Ethics, Legal Issues and Guidance for Hospital Bomedical Ethics Committees 6-7 (January 1985).

204 For a state by state analysis, see A. Rosoff, Informed Consent: A Guide for Health Care Providers 4-8, 211-31 (1981). See, e.g., 35 Pa. Cons. Stat. Ann. § 10101 (Purdon 1977) which sets 18 years of age, high school graduation, marriage or pregnancy as the minimal threshold for effective consent to medical treatment.

The age of majority varies from state to state. Many states have enacted statutes providing that “mature” or “emancipated minors” can consent to their own medical treatment. Some states have also enacted statutory provisions which allow minors to consent to medical care involving treatment for venereal disease and/or pregnancy. See, e.g., § 10104 (Purdon 1977).

205 One Massachusetts court has stated:

Custody of Minor, 375 Mass. 733, 748, 379 N.E.2d 1053, 1063, (quoting Richards v. Forrest, 278 Mass. 547, 180 N.E. 508 (1932)).

Courts have intervened against a parent’s wishes not only to administer care, but to discontinue care as well. For example, in a case where parental abuse caused a child to go into an irreversible coma, a court ordered life-support discontinued even though the child’s death subjected the parents to homicide charges. Dority v. Superior Court of San Bernadino County, 145 Cal. App. 3d 276, 193 Cal. Rptr. 288 (Cal. App. 4 Dist. 1983).

206 A widely quoted passage from the Illinois Supreme Court’s decision in People ex rel Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, (1952), cert. denied, 344 U.S. 824 (1952), summarizes this position insofar as it relates to parents who refuse medical treatment for their children on religious grounds:

Labrenz, 411 Ill. at 626, 104 N.E.2d at 774 (quoting Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944), reh’g denied, 321 U.S. 804 (1944)).

207 See, e.g., N.J. Stat. Ann. § 9:2-9 (West 1976).

208 See, e.g., N.J. Stat Ann. § 9:6-3 (West 1976).

209 See, e.g., Cal. Penal Code § 11172 (West 1984); N.Y. Soc. Serv. Law § 420 (McKinney 1984); 8 Pa. Cons. Stat. Ann. § 2211 (Purdon 1984).

210 In re Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983).

211 Id. at 427; see also Custody of a Minor, 375 Mass. at 733, 379 N.E.2d at 1053 (court removed legal custody from parents who refused chemotherapy for their child suffering from leukemia since chemotherapy found to be the only hope for a cure of the fatal disease); In re Vasko, 238 A.D. 128, 130 N.Y.S. 552, 555 (N.Y. App. Div. 1933) (court ordered removal of an eye of a two year old patient suffering from a malignant tumor where testimony established that the tumor, if not removed, would be fatal); In re Clark, 21 Ohio Op. 2d 86, 88, 185 N.E.2d 126, 130 (Ct. of Common Pleas 1962) (court approved the administration of blood transfusions to a critically burned three year old since, without treatment, the child’s life was “at risk”).

212 54 Or. App. 1, 633 P.2d 1302 (Or. Ct. App. 1981).

213 Id. See also Labrenz, 411 Ill. at 624, 104 N.E.2d at 733 (court judged a child neglected where parents refused a blood transfusion considered necessary to prevent death or mental impairment); In re Karwath, 199 N.W.2d 147, 150 (Iowa 1972) (court ordered removal of children’s tonsils and adenoids to prevent hearing loss and rheumatic fever); State v. Perricone, 37 Nj. 463, 479, 181 A.2d 751, 760, cert. denied, 371 U.S. 890 (1962) (court approved appointment of a guardian to consent to blood transfusions for infant born with an enlarged heart after hearing testimony that without the transfusions the child was likely to suffer neurological impairment); Muhlenberg Hospital v. Patterson, 128 N.J. Super. 498, 503, 320 A.2d 518, 521 (N.J. Super. Ct. Law Div. 1974) (court ordered blood transfusion for child in danger of suffering “severe and irreparable brain damage without treatment”).

214 200 Colo. 244, 614 P.2d 873 (1980).

215 Id. at 246-47, 614 P.2d at 874-75. See also In re Seiferth, 309 N.Y. 80, 85, 127 N.E.2d 820, 823 (1955) (court refused to appoint a guardian for a boy born with a harelip and cleft palate since the boy had an inordinate fear of surgery which would make post-operative therapy difficult); In re Green, 448 Pa. 338, 292 A.2d 387 (1972) (court held that the state’s interest did not outweigh a mother’s religious beliefs precluding medical treatment to correct the collapsed spine of her 16 year old son, since the child’s life was not in danger); contra In re Sampson, 29 N.Y.2d 900, 901, 278 N.E.2d 918, 918-19, 328 N.Y.S.2d 686, 687 (1972) (court found child neglected after parents, on religious grounds, refused transfusions considered necessary to prevent serious “psychological impairment”); In re Gregory S., 85 Misc.2d 846, 848, 380 N.Y.S.2d 620, 622-23 (1976) (court found child neglected whose mother refused to permit medical or dental treatment to correct an umbilical hernia, cavities and fractured teeth); Mitchell v. Davis, 205 S.W.2d 812 (Tex. Civ. App. 1947) (mother charged with criminal neglect after she failed to provide treatment for her son’s arthritic knee condition).

216 See In re Tuttendario, 21 Pa. D. 561 (1912) (court refused to appoint guardian for boy suffering from rickets whose parents refused corrective surgery due to their fear that the boy would not recover from surgery); In re Hudson, 131 Wash. 2d 673, 699, 126 P.2d 765, 777-88 (1942) (court upheld parents’ right to refuse the amputation of their child’s deformed arm because of their fear of the operation’s potential risk).

217 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979), cert. denied, 445 U.S. 949 (1980).

218 Philip B. eventually underwent heart surgery after a couple who had been visiting him at the institution where he lived, was given limited custody. Philadelphia Inquirer, Oct. 3, 1983 at 7A, col. 1.

219 375 Mass. 733, 379 N.E.2d 1053 (1978).

220 Leukemia is a disease of the blood forming tissues, characterized by the abnormal and persistent increase in the number of leucocytes and the amount of bone marrow, with enlargement of the spleen and lymph glands.

221 Custody of a Minor, 375 Mass. at 749, 379 N.E.2d at 1063.

222 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979).

223 Hodgkin’s disease is a cancerous affliction of the lymph system.

224 47 N.Y.2d at 656, 393 N.E.2d at 1014, 419 N.Y.S.2d at 941.

225 Id. at 657, 393 N.E.2d at 1014, 419 N.Y.S.2d at 941.

226 N.Y. Jud. Law § 1012(f)(i)(A) (McKinney 1983) (emphasis added). In re Hofbauer, 47 N.Y.2d 659, 393 N.E.2d at 1013, 419 N.Y.S.2d at 940.

227 Mass. Gen. Laws Ann. ch. 119, §§ 1, 24, 26 (West 1972) (emphasis added). Custody of a Minor, 375 Mass. at 749, 379 N.E.2d at 1059-60.

228 See People in the Interest of D.L.E., 200 Colo. 244, 614 P.2d 873 (1980) (twelve year old girl refused treatment of epilepsy on religious grounds). In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820 (1955) (fourteen year old boy refused to undergo surgical repair of a harelip and cleft palate). In re Green, 448 Pa. at 338, 292 A.2d at 387 (1972) (sixteen year old boy refused surgical repair of his abnormally curved spine on religious grounds).

229 Opponents of abortion have repeatedly stated that the “logical” extension of abortion is “euthanasia” of defective newborns. In fact, in 1982, the Pennsylvania legislature passed an Abortion Control Act which, in addition to imposing severe restrictions on the performance of abortions, exposed physicians to both civil and criminal liability for failing to resuscitate a fetus expelled during an abortion or a premature infant which exhibits the most minimal signs of life, whether or not the fetus or infant is severely defective. 18 Pa. Cons. Stat. Ann. §§ 3203, 3212 (Purdon 1983).

230 See Duff, & Campbell, , Moral and Ethical Dilemmas in the Special Care Nursery, 289 New Eng. J. Med. 890 (1973)CrossRefGoogle ScholarPubMed; Commission Report, supra note 16, at 207.

231 The widely publicized case, Commonwealth v. Edelin, 371 Mass. 497, 359 N.E.2d 4 (1976), involved a fetus expelled during a second trimester abortion rather than a seriously ill infant, but it demonstrates the willingness of some district attorneys to prosecute a physician for allegedly failing to treat a “minor” at the parents’ request.

On December 12, 1984, the Philadelphia District Attorney charged a physician with murder and manslaughter as well as various abortion law violations, for allegedly failing to resuscitate a live fetus born after an abortion performed on a thirteen year old girl who was 32 weeks into her term. Philadelphia Inquirer, December 12, 1984 at IB, col. 2.

Another highly publicized case concerned an Illinois physician who withheld treatment from Siamese twins. Although the evidence showed that orders had been given to withhold feeding from the infants, testimony failed to link the orders with either the physician or the parents. Consequently, the charges against both the physician (attempted murder and endangering the life of the children) and the parents (solicitation of murder and cruelty to the children) were dismissed. N.Y. Times, July 18, 1981 at 7, col. 5.

232 See Robertson, Legal Aspects of Withholding Medical Treatment from Handicapped Children in Legal and Ethical Aspects of Treating Critically and Terminally Ill Patients, (A.E. Doudera & J.D. Peters, eds.); Ellis, , Letting Defective Babies Die: Who Decides? 7 Am. J.L. & Med. 401-10Google Scholar; Horan, , Euthanasia, Medical Treatment and the Mongoloid Child: Death as a Treatment Choice, 27 Baylor L. Rev. 76, 78 (1976)Google Scholar; Robertson, , Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213 (Jan. 1975)CrossRefGoogle ScholarPubMed.

233 Weber v. Stony Book Hospital, 95 A.D. 2d 587, 467 N.Y.S.2d 685 (N.Y. App. Div.), cert. denied, 464 U.S. 1026 (1983); see also In re Infant Doe, No. Gu 8204-009 (Cir. Ct. Monroe County, Indiana, April 12, 1982), writ of mandamus dismissed sub nom. State ex rel Infant Doe v. Baker, No. 482 S. 140 (Indiana Supreme Court, May 27, 1982); Maine Medical Center v. Houle, No. 74-145 (S. Ct. Maine, February 14, 1974); Ellis, Letting Defective Babie Die: Who Decides? 7 Am. J.L. & Med. 393, 411-413 (1982); In re Cicero, 101 Misc. 2d 699, 421 N.Y.S.2d 965 (N.Y. Sup. Ct. 1979).

234 Weber v. Stonybrook Hospital, 60 N.Y.2d at 212, 456 N.E.2d at 1187, 469 N.Y.S.2d at 64.

235 Id. at 210, 456 N.E.2d at 1187, 469 N.Y.S.2d at 65.

236 Id. at 213, 456 N.E.2d at 1188, 469 N.Y.S.2d at 65.

237 29U.S.C. §794 (1985).

238 United States v. University Hospital of the State University of New York at Stony Brook, 575 F. Supp. 607, 615-16 (E.D.N.Y. 1983).

239 United States v. University Hospital of the State University of New York at Stony Brook, 729 F.2d 144 (2d Cir. 1984).

240 101 Misc. 2d at 699, 421 N.Y.S.2d at 965 (1979).

241 Myelomeningocele, also referred to as spina bifida systica, involves the malformation and exposure of the spinal cord and bone abnormalities. It typically results in paralysis of the lower extremities and lack of normal bowel and bladder control.

242 Maine Medical Center v. Houle, No. 74-145 (S. Ct. Maine, February 14, 1974).

243 Averbach, Court-Ruled Surgery Fails to Save Baby, Washington Post, February 25, 1974 at 1, col. 3.

244 In re Infant Doe, No. GU 8204-00 (Cir. Ct. Monroe County, Indiana, April 12, 1982), cert. denied, Infant Doe v. Bloomington Hospital, 104 S. Ct. 394 (1983).

245 The original version of the regulations required that notice be posted in relevant places in all hospitals receiving federal funds. The notice was to warn readers that failure to feed and care for handicapped infants violated federal law. The rule also established a toll-free 24 hour hotline to encourage people to report to the Department of Health and Human Services (“HHS”) instances where a handicapped infant was denied food or customary medical care.

A suit filed by various medical organizations to enjoin the regulations was successful. However, in response, HHS proposed a revised version of the regulations to address the District Court’s concerns. See 45 C.F.R. pt. 84 (1983), “Nondiscriminauon on the Basis of Handicap: Procedures and Guidelines Relating to the Health Care for Handicapped Infants.”

However, the HHS revised guidelines were also enjoined by the United States District Court for the Southern District of New York on May 23, 1984. American Hosp. Assoc, v. Heckler, 585 F. Supp. 541 (S.D.N.Y. 1984). See 45 C.F.R. § 84.55 (1984). The United States Supreme Court has agreed to determine whether Section 504 of the Rehabilitation Act of 1973 prohibits a hospital receiving federal funds from withholding treatment from a handicapped child. Heckler v. American Hospital Association, — F.2d — (2d Cir. 1984), cert. granted, 104 S.Ct. 2169 (1985), (No. 84-1529).

246 42 U.S.C. §§5101-5116 (1983 and Supp. 1985).

247 42 U.S.C. § 5102 (Supp. 1985). “Withholding of medically indicated treatment” is defined narrowly as:

248 42 U.S.C. § 5102(3) (Supp. 1985).

249 Child Abuse Amendments of 1984, 42 U.S.C. § 5103(b)(2).

250 After the second injunction, (see supra note 166), HHS apparently abandoned its efforts to promulgate rules pursuant to section 504. However, once Congress passed the Amendments to the Child Abuse Act of 1984, HHS issued final regulations pursuant to that Act. Tracking the statute, these regulations specify only three cases in which doctors are justified in withholding medical treatment: 1) when the infant is chronically and irreversibly comatose; 2) when treatment merely prolongs an inevitable death; and 3) when treatment is so extreme and so likely to be futile that it becomes inhumane to administer it.

The regulations also require state agencies to set up mechanisms for the reporting of suspected cases of medical neglect. Only states that comply with these regulations are eligible to receive federal funds for child abuse projects.

Along with the regulations, HHS published Model Guidelines which encourage health care providers to establish Infant Care Review Committees (“ICRC’s”). These committees are advised to review decisions to withhold treatment from infants on both a prospective and retrospective basis.

The only penalty for failing to comply with the statute or the HHS regulations is withholding of federal child abuse funds. Some states, for example, Pennsylvania, have decided not to apply for federal child abuse funds under the Act. In these states, the regulations do not apply.

251 See supra note 209.

252 At least one state has passed a statute which prohibits physicians, parents and others from denying medical or surgical care or nutrients, food, water or oxygen to infants with handicaps “which, in the opinion of the parent or parents of the child, the physician, or other persons, diminishes the quality of the child’s life.” La. Rev. Stat. Ann. § 40:1299.36, 1982. See also Ariz. Rev. Stat., §§ 36-2281, 2282, 2283 (1984).