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June 30, 1978


Norfolk. Civil action commenced in the Probate Court for the county of Norfolk on April 25, 1978. The case was reported by Sullivan, J.

Hale, C.j., Keville, & Armstrong, JJ.


Medicine, Withholding medical treatment. Probate Court, Withholding medical treatment.

The opinion of the court was delivered by: Armstrong

In the case of a patient with an unremitting, incurable mortal illness, the law of this Commonwealth does not prohibit a course of medical treatment which excludes attempts at resuscitation in the event of cardiac or respiratory arrest and the lawfulness of a physician's order to that effect does not depend on prior judicial approval. [468-474]

This case, which comes to us on a report (without decision but with extensive findings of fact) from a Judge of a Probate Court, turns on the question whether a physician attending an incompetent, terminally ill patient may lawfully direct that resuscitation measures be withheld in the event of cardiac or respiratory arrest where such a direction has not been approved in advance by a Probate Court.

The patient is a sixty-seven year old woman who suffers from a condition known as Alzheimer's disease. It is a degenerative disease of the brain of unknown origin, described as presenile dementia, and results in destruction of brain tissue and, consequently, deterioration in brain function. The condition is progressive and unremitting, leading in stages to disorientation, loss of memory, personality disorganization, loss of intellectual function, and ultimate loss of all motor function. The disease typically leads to a vegetative or comatose condition and then to death. The course of the disease may be gradual or precipitous, averaging five to seven years. At this time medical science knows of no cure for the disease and no treatment which can slow or arrest its course. No medical breakthrough is anticipated.

The patient's condition was diagnosed as Alzheimer's disease in July, 1975, although the initial symptoms of the disease were observed as early as 1972. She entered a nursing home in November, 1975, where her (by that time) complete disorientation, frequent psychotic outbursts, and deteriorating ability to control elementary bodily functions made her dependent on intensive nursing care. In February, 1978, she suffered a massive stroke, which left her totally paralysed on her left side. At the present time she is confined to a hospital bed, *fn1 in an essentially vegetative state, immobile, speechless, unable to swallow without choking, and barely able to cough. Her eyes occasionally open and from time to time appear to fix on or follow an object briefly; otherwise she appears to be unaware of her environment. She is fed through a naso-gastric tube, intravenous feeding having been abandoned because it came to cause her pain. It is probable that she is experiencing some discomfort from the naso-gastric tube, which can cause irritation, ulceration, and infection in her throat and esophageal tract, and which must be removed from time to time, and that procedure itself causes discomfort. She is catheterized and also, of course, requires bowel care. Apart from her Alzheimer's disease and paralysis, she suffers from high blood pressure which is difficult to control; there is risk in lowering it due to a constriction in an artery leading to a kidney. She has a serious, life-threatening coronary artery disease, due to arteriosclerosis. Her condition is hopeless, but it is difficult to predict exactly when she will die. Her life expectancy is no more than a year, but she could go into cardiac or respiratory arrest at any time. One of these, or another stroke, is most likely to be the immediate cause of her death.

In this situation her attending physician has recommended that, when (and if) cardiac or respiratory arrest occurs, resuscitation efforts should not be undertaken. Such efforts typically involve the use of cardiac massage or chest compression and delivery of oxygen under compression through an endotracheal tube into the lungs. An electrocardiogram is connected to guide the efforts of the resuscitation team and to monitor the patient's progress. Various plastic tubes are usually inserted intravenously to supply medications or stimulants directly to the heart. Such medications may also be supplied by direct injection into the heart by means of a long needle. A defibrillator may be used, applying electric shock to the heart to induce contractions. A pacemaker, in the form of an electrical conducting wire, may be fed through a large blood vessel directly to the heart's surface to stimulate contractions and to regulate beat. These procedures, to be effective, must be initiated with a minimum of delay as cerebral anoxia, due to a cut-off of oxygen to the brain, will normally produce irreversible brain damage within three to five minutes and total brain death within fifteen minutes. *fn2 Many of these procedures are obviously highly intrusive, and some are violent in nature. The defibrillator, for example, causes violent (and painful) muscle contractions which, in a patient suffering (as this patient is) from osteoporosis, may cause fracture of vertebrae or other bones. Such fractures, in turn, cause pain, which may be extreme.

The patient's family, consisting of a son, who is a physician practicing in New York city, and a daughter, with whom the patient lived prior to her admission to the nursing home in 1975, concur in the doctor's recommendation that resuscitation should not be attempted in the event of cardiac or respiratory arrest. They have joined with the doctor and the hospital in bringing the instant action for declaratory relief, asking for a determination that the doctor may enter a "no-code" order *fn3 on the patient's medical record without judicial authorization or, alternatively, if such authorization is a legal prerequisite to the validity of a "no-code" order, that that authorization be given. The probate Judge appointed a guardian ad litem, who has taken a position in opposition to the prayers of the complaint.

By their action for declaratory relief, the plaintiffs seek a resolution of some uncertainties which have arisen in the aftermath of Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728 (1977), which has been interpreted by some in the medical profession as casting doubt upon the lawfulness of an order not to attempt resuscitation of an incompetent, terminally ill patient except where the entry of such an order has been previously determined by a Probate Court to be in the best interests of the patient. See, e.g., Curran, The Saikewicz Decision, 298 New Eng. J. Med. 499, 500 (1978); Letter to the Editor from Barnes & others, 298 New Eng. J. Med. 516, 517 (1978). The practical results of such a reading would, of course, be very far reaching, since it is obvious on reflection that cardiac or respiratory arrest will signal the arrival of death for the overwhelming majority of persons whose lives are terminated by illness or old age; indeed, they are part of the normal *fn4 act of death.

The Saikewicz case, in the range of situations to which it applies, requires "judicial resolution of this most difficult and awesome question -- whether potentially life-prolonging treatment should be withheld from a person incapable of making his own decision. . . ." 373 Mass. at 759. In this respect the case represents more than a definition of the procedure which must be followed if the doctor or the family or both feel that an available life-prolonging treatment should not be administered to the incompetent patient. *fn5 It also, implicitly, would appear to establish a rule of law that unless such a court determination has been obtained, it is the duty of a doctor attending an incompetent patient to employ whatever life-saving or life-prolonging treatments the current state of the art has put in his hands. As it cannot be assumed that legal proceedings such as the present one will be initiated in respect of more than a small fraction of all terminally ill or dying elderly patients, the Saikewicz case, if read to apply to the natural death of a terminally ill patient by cardiac or respiratory arrest, would require attempts to resuscitate dying patients in most cases, without exercise of medical judgment, even when that course of action could aptly be characterized as a pointless, even cruel, prolongation of the act of dying. *fn6

We think it clear that such a result is neither intended not sanctioned by the Saikewicz case. This is most strikingly apparent from certain passages of the Saikewicz case which are set out in the margin. *fn7 It is apparent as well from the factual situation to which the principles of law announced in the case were addressed, from the precedents cited in support of those principles, and from the inherent sense of the case read as a whole, that, when the court spoke of life-saving or life-prolonging treatments, it referred to treatments administered for the purpose, and with some reasonable expectation, of effecting a permanent or temporary cure of or relief from the illness or condition being treated. "Prolongation of life," as used in the Saikewicz case, does not mean a mere suspension of the act of dying, but contemplates, at the very least, a remission of symptoms enabling a return towards a normal, functioning, integrated existence.

It must be borne in mind that the Saikewicz case, while discussing incidentally the scope of the doctor's duty to administer treatment, was primarily concerned with the patient's right to refuse treatment and the manner in which the exercise of that right may be secured to persons unable to make the decision for themselves. The case involved a sixty-seven year old, profoundly retarded resident at a State institution for mentally retarded persons. He suffered from leukemia, which was not curable, in the sense of a permanent cure, but which was treatable by chemotherapy, which could cause symptomatic remission, thus making possible an extension of normal, cognitive, functioning existence for a period of months or years. There was evidence that the majority of competent persons similarly situated elect to undergo the treatment, but that the treatment involves uncomfortable and even painful side effects sufficiently serious to cause many reasonable persons to forgo the treatment. The court held that Saikewicz was not to be deprived of the right to decline chemotherapy simply because of his incompetence to make the choice himself, but that such a choice could be made for him by a probate Judge placing himself as best he could in the ...

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