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March 4, 1985

Martha TUNE, Plaintiff,

The opinion of the court was delivered by: JACKSON

 JACKSON, District Judge.

 On the afternoon of February 27, 1985, plaintiff Martha Tune, by her adult son Cecil L. Tune, Jr., acting as next friend, filed a pro se civil action against Walter Reed Army Medical Center, entitled "Complaint and Emergency Motion for Removal of Life Support," *fn1" in which she describes herself as a 71-year-old patient at the Walter Reed Army Medical Center, Washington, D.C., with terminal adenocarcinoma of the pericardium. She alleges that she is currently being maintained on a respirator, without which she would "immediately experience respiratory arrest and death." While the physicians at the hospital are sympathetic to her desire to die a natural death, she says, the policy of the Department of Army (as reported to her by her physicians) precludes the withdrawal of life support systems once placed in operation for a patient at an Army medical facility. *fn2" Plaintiff prays for an order directing Walter Reed "to remove the artificial life support from her . . . to permit her to die with dignity."

 The Court has appointed James P. Schaller, Esq., a member of the Bar of this Court with experience in medical litigation, as guardian ad litem for plaintiff, and, with the consent of the U.S. Attorney who has agreed to enter an expedited appearance on behalf of defendant, brought the matter on for final hearing and disposition upon oral motion, if possible.


 From the report of the guardian ad litem, made orally in open court upon the record, in which defendant, by counsel, concurs in all particulars, the Court finds the following material facts to exist without dispute.

 Plaintiff, the widow of an Army officer, with a history of breast cancer treated surgically approximately 10 years ago, was awaiting elective cataract surgery at home when she experienced an onset of shortness of breath and chest discomfort. She was admitted to Walter Reed on February 21, 1983, and placed on the respirator on or about February 23rd. Initially suspected of having pneumonia and being appropriately treated for it, Mrs. Tune underwent cardiac catheterization which revealed the presence of fluid in the pericardial sac and frank cardiac tamponade. The fluid was evacuated, following which Mrs. Tune improved briefly, but cytologic examination of the evacuate demonstrated the presence of the malignant adenocarcinoma. Oncological consultation suggested three possible modalities of treatment, directed primarily at preventing the recurrence of tamponade: medication with tetracycline; surgery, entailing opening the chest and removing the pericardium altogether (with a mean survival prognosis of 10-12 weeks, with progressive debilitation); and a less drastic procedure to fuse the pericardium to the heart. The attending physicians commenced the administration of tetracycline and performed the latter procedure.

 Although there has been no recurrence of tamponade, and her cardiac function (following a brief episode of atrial fibrillation restored to normal sinus rhythm) appears normal, Mrs. Tune nevertheless developed sudden and dramatic respiratory difficulty, diagnosed as Adult Respiratory Distress Syndrome (ARDS), and her lungs have continued to deteriorate. Serial X-rays suggest the presence of tumor in the lungs.

 The physicians are unanimous in their opinion that without the ventilation afforded by the respirator, Mrs. Tune will promptly die, but the respirator merely postpones the inevitable. Her cancer is terminal. When she was first placed on the respirator the physicians were unaware of the full extent of her illness. In combination, her malignancy and lung disease import a mortality rate approaching 100 percent, and had they known the circumstances they would not have ordered the respirator originally. Having done so, however, they are constrained to continue life support, despite the wishes of patient or family, by Army medical policy.

 The guardian ad litem, having spoken personally with plaintiff, reports her to be lucid, fully apprised of her medical circumstances by her physicians, and still firm in her resolve to be removed from the respirator. When told by the guardian ad litem that if it were done as she wished, she would "very likely quickly die, probably immediately," she acknowledged it, and affirmed that she nevertheless wanted it so, with "no reservations at all." Both her desires and her competence to form them the guardian ad litem found evidenced by multiple pages of notes, written recently in her own hand, expressing final sentiments for her family and giving instructions for the disposition of her personal effects, her funeral and interment. When asked by the guardian ad litem what she wanted him to ask the Court to do, she wrote a similar note declaring her persistence in her desire to be taken off the respirator. *fn3"

 Plaintiff's two adult children, and their spouses, whom the guardian ad litem describes as a "remarkably close and loving family," are in accord with Mrs. Tune's wishes and join with the guardian ad litem in his recommendation that the Court grant the relief prayed. Defendant concurs in all but the prayer for relief, as to which it takes no position, although waiving any right to appeal from the Court's decision.

 For the reasons hereinafter set forth, the Court will grant the petition and enter an order directing that plaintiff be forthwith disconnected from life support systems.


 All parties in interest being agreed that Mrs. Tune is in full possession of her faculties, and that she herself has expressed the clear and unequivocal desire to be allowed to die naturally, the Court is fortunately not called upon to address the difficult issues presented when the patient is comatose or otherwise incompetent, and a "substituted judgment" must be made. See, e.g., Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub. nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. ...

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