[148 NJSuper Page 171] Application for the appointment of a "special guardian" to consent to the amputation of the right leg of William Schiller, who is a widower and 67 years of age, to prevent the spread of infection from gangrenous area of the right foot is before the court for decision on the adjourned date of the return date for the original order to show cause addressed to Schiller. East Orange General Hospital, a nonprofit New Jersey corporation, filed the complaint and sought the original order to show cause on the morning of Friday, January 28, 1977, supported by affidavits of a surgeon that the condition presented a threat to the life of Schiller and a psychiatrist that Schiller was mentally incapable of giving consent to the operation. The supporting papers also showed that Schiller had been admitted through the emergency room and not by a private physician. The verified complaint asked that either the assistant administrator of the hospital or a cousin, if he would consent to serve, be appointed. It further stated that the hospital had located
an aunt but she did not want to become involved. There is no provision in the rules of court pertaining to the right to appoint a special guardian or the procedure to be followed.
The court granted the order to show cause, relying upon Barnert Memorial Hosp. Ass'n v. Young , 63 N.J. 578 (1972) (court affirmed trial court appointing a sister of patient as special guardian to consent to amputation of left leg of adult woman whom the trial judge found to be mentally incompetent to consent), and John F. Kennedy Memorial Hosp. v. Heston , 58 N.J. 576 (1971). The return date was fixed for Monday, January 31, 1977, on the representation of counsel for the hospital that Schiller's condition was believed to be stable and Schiller's cousin was then out of the State but would be available on Monday.
Except for Barnert Memorial Hosp. Ass'n v. Young, supra , wherein the Supreme Court limited its comments to approval of the action taken on the unreported oral opinion of the trial judge, this court has found no New Jersey case which has considered the questions of whether a court may appoint a special guardian to consent to surgery, what the rights of the respective parties are, and how the court should measure and protect those rights if it acts. The foregoing are considered in the order stated.
The rules do not contain any specific guidelines as to how to proceed where the basic question is capacity of patient to consent to, or to refuse, treatment, either in a case in which the threat to life is so great that death will ensue within hours in the absence of treatment, or in a case in which there is a life threatening condition with time for deliberation. R. 4:83-1 et seq. applies where a guardian is sought for a person who is mentally incompetent to manage himself or herself and his or her property, and it has support in the statutes, N.J.S.A. 3A:6-35 et seq. Such a guardian must be willing to undertake the management of the ward's property
and see that the ward is thereafter properly cared for. N.J.S.A. 3A:6-36.
The question of the competency of a person to consent, or refuse to consent, to a medical procedure is a justiciable matter which the trier of fact must resolve, Grannum v. Berard , 70 Wash. 2d 304, 422 P. 2d 812, 25 A.L.R. 3d 1434 (Sup. Ct. 1967); Kaplan v. Haines , 96 N.J. Super. 242 (App. Div. 1967), aff'd o.b. 51 N.J. 404 (1968), and hence presents a matter proper for a court to decide.
In a number of cases involving blood transfusions, where persons objected on religious grounds on behalf of the patient, the courts have not directly decided or adjudicated what is or is not, proper medical treatment but have decided whether or not a general or special guardian should be appointed to consent to life-saving procedures. See John F. Kennedy Memorial Hosp. v. Heston, supra , and cases cited therein and contra In re Osborne , 294 A.2d 372 (D.C. Ct. of A. 1972) (Appellate court affirmed refusal to appoint special guardian for competent male adult who refused transfusion with knowledge death would ensue and whose family supported his decision.) See particularly In re Quinlan , 70 N.J. 10, 44-51 (1976) and note the conclusion:
2. To appoint Joseph Quinlan as guardian of the person of Karen Quinlan with full power to make decisions with regard to the identity of her treating physicians.
We repeat for the sake of emphasis and clarity that upon the concurrence of the guardian and family of Karen, should the responsible attending physicians conclude that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital "Ethics Committee" or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor, on the part of any participant, whether guardian, physician, hospital or others.
By the above ruling we do not intend to be understood as implying that a proceeding for judicial declaratory relief is necessarily required
for the implementation of comparable decisions in the field of medical practice. [70 N.J. at 55].
A guardian should not be appointed until the preliminary fact is determined, because that would be a prejudgment of the question to be decided. Compare R. 4:83-4(a).
The New York Supreme Court, in In re Petition of Memser , 51 Misc. 2d 616, 273 N.Y.S. 2d 624 (Sup. Ct. 1966), observed that there is a need for courts to be wary of becoming medical consultants. It is the responsibility of physicians to make medical decisions. That court there found that the patient was not generally incompetent but lacked capacity of making an informed judgment for herself of whether the operation should be performed. She was 80 years of age, had suffered three strokes and attacks of pneumonia, and had a history of diabetes and arteriosclerosis. She had gangrene of the foot. The attending doctor had recommended an amputation above the ankle. Two sons consented. The third son, a physician, refused and stated that "assaultive surgery in a terminal case in the name of emergency is cruelty beyond description." The court recognized that a patient did not have to be found mentally incompetent before a court might intervene under the parens patriae jurisdiction. But the court concluded there was doubt that there was a real legal controversy before the court, but only a difference among family members.
Actually, it is apparent that this proceeding was necessitated only because of the current practice of members of the medical profession and their associated hospitals of shifting the burden of their responsibilities to the courts, to determine, in effect, whether doctors should proceed with certain medical procedures definitively found necessary or deemed advisable for the health, welfare, and perhaps even the life of a patient who is either unwilling or unable to consent thereto. Thus, petitioners upon the hearing, indicated their concern that if the pending application were to be denied at this time, their mother's attending physicians and the respondent hospital, in the absence of written consent by the next of kin or prior judicial approval, would still refuse necessary surgical treatment if a sudden reversal of her present improved condition mandated it as a real 'life or death' solution.
It seems incongruous in light of the physicians' oath that they even seek legal immunity prior to action necessary to sustain life. As the Court has had previous occasion to note, how legalistic minded our society has become, and what an ultra-legalistic maze we have created to the extent that society and the individual have become enmeshed and paralyzed by its unrealistic entanglements! (See, Matter of Powell v. Columbian Medical Center, 49 Misc. 2d 215, 216, 267 N.Y.S. 2d 450, 451-452). Certainly, if medical procedures are of an emergency nature or are required suddenly to save the life of a human being, neither a physician nor a hospital should be deterred from the exercise of sound medical judgment with respect to necessary treatment merely by threat of possible legal action. Emergency requirements, if, in fact, they are such, should not be delayed nor the responsibility therefor shirked while fearful physicians and hospitals first seek judicial sanction for a determination which, at the end, must, in any event, be a medical decision rather than a legal one. [273 N.Y.S. 2d at 629].
This case is different in that neither Schiller nor his family selected the hospital. At the time the application was filed the available members of the family had refused to get involved. Schiller had neither consented nor refused treatment.
The cases involving blood transfusions for victims of accidents or other emergent conditions, State v. Perricone , 37 N.J. 463 (1962), cert. den. 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962); Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 (1964); John F. Kennedy Memorial Hosp. v. Heston, supra; Application of President & Directors of Georgetown College, Inc. , 118 U.S. App. D.C. 80, 331 F.2d 1000 (D.C. Cir. 1964), cert. den. 377 U.S. 978, 84 S. Ct. 1883, 12 L. Ed. 2d 746 (1964), rearg. den. Id. , 118 U.S. App. D.C. 90, 331 F.2d at 1010, but see dissent of then Judge, now Chief Justice Burger; United States v. George , 239 F. Supp. 752 (D. Conn. 1965), show that pleadings frequently may have to be oral and a record preserved by tape recording or other available means, but to the extent possible, written pleadings and court reporters should be used.*fn1
Under John F. Kennedy Memorial Hosp. v. Heston, supra , our Supreme Court has said that where a patient was received in a hospital under emergency conditions and there was a refusal of recommended treatment by a member of the family on behalf of a patient,
and hence such institutions and staff have standing to bring an action for that determination. The same rationale applies in the type of case before the court. ...