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04/26/90 A.C.

April 26, 1990

IN RE: A.C., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Emmet G. Sullivan, Trial Judge, ON HEARING EN BANC

Before Rogers, Chief Judge,* Newman, Ferren, Belson, Terry, Steadman, and Schwelb, Associates Judges, and Mack, Senior Judge.**

Opinion for the court by Associate Judge Terry.

Opinion by Associate Judge Belson, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: This case comes before the court for the second time. In In re A.C., 533 A.2d 611 (D.C. 1987), a three-Judge motions division denied a motion to stay an order of the trial court which had authorized a hospital to perform a caesarean section on a dying woman in an effort to save the life of her unborn child. The operation was performed, but both the mother and the child died. A few months later, the court ordered the case heard en banc and vacated the opinion of the motions division. In re A.C., 539 A.2d 203 (D.C. 1988). Although the motions division recognized that, as a practical matter, it "decided the entire matter when denied the stay," 533 A.2d at 613, the en banc court has nevertheless heard the full case on the merits. *fn1

We are confronted here with two profoundly difficult and complex issues. First, we must determine who has the right to decide the course of medical treatment for a patient who, although near death, is pregnant with a viable fetus. Second, we must establish how that decision should be made if the patient cannot make it for herself--more specifically, how a court should proceed when faced with a pregnant patient, in extremis, who is apparently incapable of making an informed decision regarding medical care for herself and her fetus. We hold that in virtually all cases the question of what is to be done is to be decided by the patient--the pregnant woman--on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as substituted judgment. Because the trial court did not follow that procedure, we vacate its order and remand the case for further proceedings. *fn2

I

This case came before the trial court when George Washington University Hospital petitioned the emergency Judge in chambers for declaratory relief as to how it should treat its patient, A.C., who was close to death from cancer and was twenty-six and one-half weeks pregnant with a viable fetus. After a hearing lasting approximately three hours, which was held at the hospital (though not in A.C.'s room), the court ordered that a caesarean section be performed on A.C. to deliver the fetus. Counsel for A.C. immediately sought a stay in this court, which was unanimously denied by a hastily assembled division of three Judges. In re A.C., 533 A.2d 611 (D.C. 1987). The caesarean was performed, and a baby girl, L.M.C., was delivered. Tragically, the child died within two and one-half hours, and the mother died two days later.

Counsel for A.C. now maintain that A.C. was competent and that she made an informed choice not to have the caesarean performed. Given this view of the facts, they argue that it was error for the trial court to weigh the state's interest in preserving the potential life of a viable fetus against A.C.'s interest in having her decision respected. They argue further that, even if the substituted judgment procedure had been followed, the evidence would necessarily show that A.C. would not have wanted the caesarean section. Under either analysis, according to these arguments, the trial court erred in subordinating A.C.'s right to bodily integrity in favor of the state's interest in potential life. Counsel for the hospital and for L.M.C. contend, on the other hand, that A.C. was incompetent to make her own medical decisions and that, under the substituted judgment procedure, the evidence clearly established that A.C. would have consented to the caesarean. In the alternative, counsel for L.M.C. argues that even if L.M.C.'s interests and those of the state were in conflict with A.C.'s wishes, it was proper for the trial court to balance their interests and resolve the conflict in favor of surgical intervention.

We do not accept any of these arguments because the evidence, realistically viewed, does not support them.

II

A.C. was first diagnosed as suffering from cancer at the age of thirteen. In the ensuing years she underwent major surgery several times, together with multiple radiation treatments and chemotherapy. A.C. married when she was twenty-seven, during a period of remission, and soon thereafter she became pregnant. She was excited about her pregnancy and very much wanted the child. Because of her medical history, she was referred in her fifteenth week of pregnancy to the high-risk pregnancy clinic at George Washington University Hospital.

On Tuesday, June 9, 1987, when A.C. was approximately twenty-five weeks pregnant, she went to the hospital for a scheduled check-up. Because she was experiencing pain in her back and shortness of breath, an x-ray was taken, revealing an apparently inoperable tumor which nearly filled her right lung. On Thursday, June 11, A.C. was admitted to the hospital as a patient. By Friday her condition had temporarily improved, and when asked if she really wanted to have her baby, she replied that she did.

Over the weekend A.C.'s condition worsened considerably. Accordingly, on Monday, June 15, members of the medical staff treating A.C. assembled, along with her family, in A.C.'s room. The doctors then informed her that her illness was terminal, and A.C. agreed to palliative treatment designed to extend her life until at least her twenty-eighth week of pregnancy. The "potential outcome the fetus," according to the doctors, would he much better at twenty-eight weeks than at twenty-six weeks if it were necessary to "intervene." A.C. knew that the palliative treatment she had chosen presented some increased risk to the fetus, but she opted for this course both to prolong her life for at least another two weeks and to maintain her own comfort. When asked if she still wanted to have the baby, A. C. was somewhat equivocal, saying "something to the effect of 'I don't know, I think so.'" As the day moved toward evening, A.C.'s condition grew still worse, and at about 7:00 or 8:00 p.m. she consented to intubation to facilitate her breathing.

The next morning, June 16, the trial court convened a hearing at the hospital in response to the hospital's request for a declaratory judgment. The court appointed counsel for both A.C. and the fetus, and the District of Columbia was permitted to intervene for the fetus as parens patriae. The court heard testimony on the facts as we have summarized them, and further testimony that at twenty-six and a half weeks the fetus was viable, i.e., capable of sustained life outside of the mother, given artificial aid. A neonatologist, Dr. Maureen Edwards, testified that the chances of survival for a twenty-six-week fetus delivered at the hospital might be as high as eighty percent, but that this particular fetus, because of the mother's medical history, had only a fifty to sixty percent chance of survival. *fn3 Dr. Edwards estimated that the risk of substantial impairment for the fetus, if it were delivered promptly, would be less than twenty percent. However, she noted that the fetus' condition was worsening appreciably at a rapid rate, and another doctor--Dr. Alan Weingold, an obstetrician who was one of A.C.'s treating physicians--stated that any delay in delivering the child by caesarean section lessened its chances of survival.

Regarding A.C.'s ability to respond to questioning and her prognosis, Dr. Louis Hamner, another treating obstetrician, testified that A.C. would probably die within twenty-four hours "if absolutely nothing else is done . . . . As far as her ability to interact, she has been heavily sedated in order to maintain her ventilatory function. She will open her eyes sometimes when you are in the room, but as far as her being able to . . . carry on a meaningful-type conversation . . . at this point, I don't think that is reasonable." When asked whether reducing her medication to "permit recovery of enough cognitive function on her part that we could get any sense from her as to what her preference would be as to therapy," Dr. Hamner replied, "I don't think so. I think her respiratory status has deteriorated to the point where she is an enormous amount of energy just to keep the heart going." Dr. Weingold, asked the same question, gave a similar answer: that A.C.'s few remaining hours of life "will be shortened by attempting to raise her level of consciousness because that is what is keeping her, in a sense, physiologically compliant with the respirator. If you remove that, then I think that will shorten her survival."

There was no evidence before the court showing that A.C. consented to, or even contemplated, a caesarean section before her twenty-eighth week of pregnancy. There was, in fact, considerable dispute as to whether she would have consented to an immediate caesarean delivery at the time the hearing was held. A.C.'s mother opposed surgical intervention, testifying that A.C. wanted "to live long enough to hold that baby" and that she expected to do so, "even though she knew she was terminal." Dr. Hamner testified that, given A.C.'s medical problems, he did not think she would have chosen to deliver a child with a substantial degree of impairment. Asked whether A.C. had been "confronted with the question of what to do if there were a choice that ultimately had to be made between her own life expectancy and that of her fetus," he replied that the question "was addressed at a later gestational age. We had talked about the possibility at twenty-eight weeks, if she had to be intubated, if this was a terminal event, would we intervene, and the expression was yes, that we would, because we felt at twenty-eight weeks we had much more to offer as far as taking care of the child." Finally, Dr. Hamner stated that "the department as a whole" concluded that "we should abide by the wishes of the family." Dr. Lawrence Lessin, an oncologist and another of A.C.'s treating physicians, testified that in meetings with A.C. he had heard nothing to indicate that, if faced with the decision, she would have refused permission for a caesarean section. Dr. Weingold opposed the operation because he believed A.C. had not seriously considered that she might not survive the birth of her baby. Dr. Weingold made explicit what was implicit in Dr. Hamner's testimony: that "in dealing with her, a message that was sent to her was that the earliest we would feel comfortable in intervening, should there be indication as to either maternal or fetal grounds, would be twenty-eight weeks."

After hearing this testimony *fn4 and the arguments of counsel, the trial court made oral findings of fact. It found, first, that A.C. would probably die, according to uncontroverted medical testimony, "within the next twenty-four to forty-eight hours"; second, that A.C. was "pregnant with a twenty-six and a half week viable fetus who, based upon uncontroverted medical testimony, has approximately a fifty to sixty percent chance to survive if a caesarean section is performed as soon as possible"; third, that because the fetus was viable, "the state has important and legitimate interest in protecting the potentiality of human life"; and fourth, that there had been some testimony that the operation "may very well hasten the death of [A.C.]," but that there had also been testimony that delay would greatly increase the risk to the fetus and that "the prognosis is not great for the fetus to be delivered post-mortem . . . ." Most significantly, the court found:

The court is of the view that it does not clearly know what [A.C.'s] present views are with respect to the issue of whether or not the child should live or die. She's presently unconscious. As late as Friday of last week, she wanted the baby to live. As late as yesterday, she did not know for sure.

Having made these findings of fact and Conclusions of law, and expressly relying on In re Madyun, 114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct. July 26, 1986), *fn5 the court ordered that a caesarean section be performed to deliver A.C.'s child.

The court's decision was then relayed to A.C., who had regained consciousness. When the hearing reconvened later in the day, Dr. Hamner told the court:

I explained to her essentially what was going on. . . . I said it's been deemed we should intervene on behalf of the baby by caesarean section and it would give it the only possible chance of it living. Would you agree to this procedure? She said yes. I said, do you realize that you may not survive the surgical procedure? She said yes. And I repeated the two questions to her again asked her did she understand. She said yes. [Emphasis added.]

When the court suggested moving the hearing to A.C.'s bedside, Dr. Hamner discouraged the court from doing so, but he and Dr. Weingold, together with A.C.'s mother and husband, went to A.C.'s room to confirm her consent to the procedure. What happened then was recounted to the court a few minutes later:

THE COURT: Will you bring us up to date? Did you have a conversation with [A.C.]?

DR. WEINOLD: I did not. I observed the conversation between Dr. Hamner and [A.C.]. Dr. Hamner went into the room to attempt to verify his previous Discussion with the patient, with the patient's husband at her right hand and her mother at her left hand. He, to my satisfaction, clearly communicated with [A.C.]. She understood.

THE COURT: You could hear what the parties were saying to. one another?

DR. WEINOLD: She does not make sound because of the tube in her windpipe. She nods and she mouths words. One can see what she's saying rather readily. She asked whether she would survive the operation. She asked [Dr.] Hamner if he would perform the operation. He told her he would only perform it if she authorized it but it would be done in any case. She understood that. She then seemed to pause for a few moments and then very clearly mouthed words several times, I don't want it done. I don't want it done. Quite clear to me.

I would obviously state the obvious and that is this is an environment in which, from my perspective as a physician, this would not be an informed consent one way or the other. She's under tremendous stress with the family on both sides, but I'm satisfied that I heard clearly what she said.

THE COURT: Dr. Hamner, did you wish to elaborate?

DR. HAMNER: That's accurate. I noticed she was much more alert than she had been earlier in the day and was responding to the nurses in the room as well as to all the physicians and went through the same sequence Dr. Weingold noted. [Emphasis added.]

Dr. Weingold later qualified his opinion as to A.C.'s ability to give an informed consent, stating that he thought the environment for an informed consent was non-existent because A.C. was in intensive care, flanked by a weeping husband and mother. He added:

I think she's in contact with reality, clearly understood who Dr. Hamner was. Because of her attachment to him wanted him to perform the surgery. Understood he would not unless she consented and did not consent.

That is, in my mind, very clear evidence that she is responding, understanding, and is capable of making such decisions.

Dr. Hamner stated that the sedation had "worn off enough for her to wake up to this state" and that "the level of drugs in her body is much different from several hours ago." Consequently, despite A.C.'s continued sedation, Dr. Weingold said that she was "quite reactive," and Dr. Hamner concurred.

After hearing this new evidence, the court found that it was "still not clear what her intent is" and again ordered that a caesarean section be performed. A.C.'s counsel sought a stay in this court, which was denied. In re A.C., 533 A.2d 611, 613 (D.C. 1987). The operation took place, but the baby lived for only a few hours, and A.C. succumbed to cancer two days later.

III

The reader may wonder why we are issuing an en banc opinion in this case despite its apparent mootness. *fn6 The case is moot only in the sense that the surgery which was ordered in this case has been performed, and no decision of ours can put the parties in the same position in which they found themselves before the trial court's order was issued. Otherwise the case is not moot, because collateral consequence's will flow from any decision we make in this appeal.

The personal representative of A.C.'s estate has filed an action separate from this appeal against the hospital, based on the events leading to the trial court's order in this case. In these circumstances we adhere to our prior decisions refusing to dismiss an appeal as moot when resolution of the legal issues might affect a separate action, actual or prospective, between the parties. See Kopff v. District of Columbia Alcoholic Beverage Control Board, supra note 6,381 A.2d at 1378; Saunders v. First National Realty Corp., 245 A.2d 836, 837 (D.C. 1968), aff'd in relevant part sub nom. Javins v. First National Realty Corp., 138 U.S. App. D.C. 369, 371 n.5, 428 F.2d 1071, 1073 n.5, cert. denied, 400 U.S. 925, 27 L. Ed. 2d 185, 91 S. Ct. 186 (1970); Brown v. Southall Realty Co., 237 A.2d 834, 835-836 (D.C. 1968); cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-122, 40 L. Ed. 2d 1, 94 S. Ct. 1694 (1974). Any right of action that A.C. may have had against the hospital as a result of the events that culminated in the trial court's order has probably survived her and may still be asserted by her estate (assuming that it is not otherwise subject to dismissal or barred for other reasons). See D.C. Code § 12-101 (1989) (survival statute).

Even if this case were truly moot and had no collateral consequences, we would nevertheless elect to hear it because what occurred here is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911); see Lynch v. United States, 557 A.2d 580, 582-583 (D.C. 1989) (en banc); United States v. Edwards, 430 A.2d 1321, 1324 n.2 (D.C. 1981) (en banc), cert. denied, 455 U.S. 1022, 72 L. Ed. 2d 141, 102 S. Ct. 1721 (1982). See generally Alton & Southern Ry. v. International Ass'n of Machinists, 150 U.S. App. D.C. 36, 463 F.2d 872 (1972). The challenged action here is not just the trial court's order but the hospital's handling of the medical emergency, which necessarily was too short to be fully litigated, given A.C.'s rapidly declining condition. Additionally, this is a suit for a declaratory judgment, in which the plaintiff is not A.C. but the hospital. Because the hospital operates a high-risk pregnancy clinic, it will in all likelihood again face a situation in which a pregnant but dying patient is either incapable of consenting to treatment or affirmatively refusing treatment. Indeed, any hospital in the District of Columbia may find itself in the same situation, even one without a specialized facility for such patients. There is thus a reasonable expectation that the challenged action in this case--i.e., the hospital's decision to seek judicial authorization for a medical procedure affecting a pregnant patient in extremis--may occur again. See Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 601-602, 98 L. Ed. 2d 686 & n.6 (1988). Accordingly, we conclude that we should entertain this appeal in the exercise of our discretion, even assuming that it is partially or wholly moot.

IV

Although we decide this case on the merits of the legal issues, it is important to remember that factual disputes dominate this controversy and determine how the legal issues are framed. It is, of course, beyond dispute that the trial court's findings of fact are binding on this court unless clearly erroneous. D.C. Code § 17-305 (a) (1989); see, e.g., Bell v. Jones, 523 A.2d 982, 992 (D.C. 1986). Sitting as an appellate court, we cannot engage in factfinding. See Harmatz v. Zenith Radio Corp., 265 A.2d 291, 292 (D.C. 1970). With these preliminary observations, we proceed to address the issues as we understand them.

A. Informed Consent and Bodily Integrity

A number of learned articles have been written about the propriety or impropriety of court-ordered caesarean sections. E.g., Johnsen, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 YALE L.J. 599 (1986); Kolder, Gallagher & Parsons, Court-Ordered Obstetrical Interventions, 316 NEW ENG. J. MED. 1192 (1987) (hereafter Obstetrical Interventions); Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Caesareans, 74 CAL. 1. REV. 1951 (1986); Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 VA. L. REV. 405 (1983). Commentators have also considered how medical decisions for incompetent persons which may involve some detriment or harm to them should be made. E.g., Pollock, Life and Death Decisions: Who Makes Them and by What Standards?, 41 RUTGERS L. REV. 505, 518-540 (1989); Robertson, Organ Donations by incompetents and the Substituted Judgment Doctrine, 76 COLUM. L. REV. 48 (1976). These and other articles demonstrate the complexity of medical intervention cases, which become more complex with the steady advance of medical technology. From a recent national survey, it appears that over the five years preceding the survey there were thirty-six attempts to override maternal refusals of proposed medical treatment, and that in fifteen instances where court orders were sought to authorize caesarean interventions, thirteen such orders were granted. Obstetrical Interventions, supra, 316 NEW ENG. J. MED. at 1192-1193. Compare Goldberg, Medical Choices During Pregnancy: Whose Decision Is It Anyway?, 41 RUTGERS L. REV. 591, 609 (1989) (finding twelve such cases). Nevertheless, there is only one published decision from an appellate court that deals with the question of when, or even whether, a court may order a caesarean section: Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86,274 S.E.2d 457 (1981).

Jefferson is of limited relevance, if any at all, to the present case. In Jefferson there was a competent refusal by the mother to undergo the proposed surgery, but the evidence showed that performance of the caesarean was in the medical interests of both the mother and the fetus. *fn7 In the instant case, by contrast, the evidence is unclear as to whether A.C. was competent when she mouthed her apparent refusal of the caesarean ("I don't want it done"), and it was generally assumed that while the surgery would most likely be highly beneficial to the fetus, it would be dangerous for the mother. Thus there was no clear maternal-fetal conflict in this case arising from a competent decision by the mother to forego a procedure for the benefit of the fetus. The procedure may well have been against A.C.'s medical interest, but if she was competent and given the choice, she may well have consented to an operation of significant risk to herself in order to maximize her fetus' chance for survival. From the evidence, however, we simply cannot tell whether she would have consented or not.

Thus our analysis of this case begins with the tenet common to all medical treatment cases: that any person has the right to make an informed choice, if competent to do so, to accept or forego medical treatment. The doctrine of informed consent, based on this principle and rooted in the concept of bodily integrity, is ingrained in our common law. See Crain v. Allison, 443 A.2d 558, 561-562 (D.C. 1982); Canterbury v. Spence, 150 U.S. App. D.C. 263, 271, 464 F.2d 772, 780, cert. denied, 409 U.S. 1064, 34 L. Ed. 2d 518, 93 S. Ct. 560 (1972); Schloendorff v. Society of New York Hospital, 211 N.Y. 125, , 105 N.E. 92, 93 (1914). Under the doctrine of informed consent, a physician must inform the patient, "at a minimum," of "the nature of the proposed treatment, any alternative treatment procedures, and the nature and degree of risks and benefits inherent in undergoing and in abstaining from the proposed treatment." Crain v. Allison, supra, 443 A.2d at 562 (footnote omitted). To protect the right of every person to bodily integrity, courts uniformly hold that a surgeon who performs an operation without the patient's consent may be guilty of a battery, Canterbury v. Spence, supra, 150 U.S. App. D.C. at 274, 464 F.2d at 783, or that ...


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