Persistent Vegetative State - No Advance Directive: Right Of Substitute Decision Maker To Refuse Care Upheld By Court

Legal Eagle Eye Newsletter for the Nursing Profession

July 1996

   In 1972 a twenty-year-old man sustained severe head injuries, but regained consciousness with marked limitations in his cognitive abilities compared to his pre-injury status. In 1976, while being treated in a hospital, he suffered a second head injury, in a manner not specified in the court record, from which he never regained consciousness. Shortly thereafter, he was diagnosed as being in a persistent vegetative state.

   For purposes of deciding the present case, the Supreme Court of Pennsylvania accepted the definition of persistent vegetative state as:

   "A body which is functioning entirely in terms of its internal controls. It maintains temperature. It sustains heart beat and pulmonary ventilation. It maintains digestive activity. In maintains reflex activity of muscles and nerves for low level conditioned responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner."

   The court made note that the Arizona Supreme Court recently described persistent vegetative state as "a twilight zone of suspended animation, where death commences, while life, in some form, continues."

   The court noted a change in terminology, proposed by the medical community after the physicians in this case had already stated their opinions for the court record. A persistent vegetative state is now considered a wakeful unconsciousness that lasts more than a few weeks, while a permanent vegetative state is a persistent vegetative state that lasts for more than a year. This distinction would not have altered the court’s decision in this case.

   In passing, the court also noted that artificial nutrition and hydration do fall within the parameters encompassed by the generally accepted legal definition of medical treatment.

   After her son had been in a nursing home seventeen years, his mother, who was also the individual whom the court had appointed as his legal guardian twelve years earlier, asked the nursing home to stop hydrating and feeding him, to remove his gastrostomy tube, and to let him expire.

   The nursing home refused. The mother filed suit for a court order directing the nursing home to do as she had asked. The state attorney general came into the case as nominal legal representative for the patient. The court appointed a neurologist as its independent medical expert.

   Two neurologists, one the court-appointed independent medical expert, the other retained to testify for the mother, concurred within a reasonable degree of medical certainty that the son’s condition would never improve and he would always remain in the same persistent vegetative state in which he had been for seventeen years. However, existing medical technology, in their opinion, could continue to support his basal functions and prolong his life for an additional ten to twenty years.

   The mother testified that her son had never expressly made his wishes known what should be done should he lapse into a persistent vegetative state. Nevertheless, based on her son’s "love of life," according to the court, the mother was of the opinion that under the circumstances her son would wish his gastrostomy tube removed so that he could die.