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In re Conroy

Decided: July 8, 1983.

IN THE MATTER OF CLAIRE C. CONROY


On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, whose opinion is reported at 188 N.J. Super. 523 (Ch. Div. 1983).

Michels, Pressler and Trautwein. The opinion of the Court was delivered by Michels, P.J.A.D.

Michels

[190 NJSuper Page 455] John J. DeLaney, Jr. (DeLaney), guardian ad litem of Claire C. Conroy (Conroy), appeals from a judgment of the Chancery Division entered following a plenary trial, which declared that Thomas C. Whittemore (Whittemore) as guardian of Claire C. Conroy had "the right to cause the removal of the nasogastric

tube presently inserted in Claire C. Conroy." In re Conroy, 188 N.J. Super. 523, 532 (Ch.Div.1983). Conroy at the time the order was entered was 84 years old and suffered from severe organic brain syndrome and a myriad of other physical problems. Unable to swallow sufficient amounts of food and water for her own sustenance, she was being nourished through a nasogastric feeding tube. The judgment under review was stayed by this court pending appeal; Conroy died of natural causes while the appeal was pending.

The facts relevant to this appeal are not in substantial dispute. From her teens until her retirement at age 62 or 63, Conroy was employed by a cosmetics company. She never married, but was devoted to her three sisters and her several cats. The last of her sisters died in 1975, leaving her nephew Whittemore as her only living relative. According to Whittemore, Conroy began to show signs of confusion some time before 1979. In 1979 he petitioned for and was granted guardianship of Conroy, whom he then placed in the Parklane Nursing Home (Parklane). According to Dr. Ahmed Kazemi, Conroy's physician at Parklane, Conroy was ambulatory upon her admission but was somewhat confused as the result of organic brain syndrome.*fn1 With the passage of time, this condition became progressively more severe and her ability to walk, reason and feed herself deteriorated. In 1982 she developed necrotic ulcers on her left foot as a complication of diabetes. At this time, she was unable to maintain a conversation because of her extreme confusion, but was aware of and could respond to commands.

On July 23, 1982, after observing that Conroy was not eating, Dr. Kazemi placed her on a nasogastric tube, which is a simple

flexible plastic tube that is run through the patient's nose into the stomach and through which liquid nutrients are passed. Except for a two-week period in October and November 1982, during which time she was fed pureed food but with poor results, this tube remained in place until her death. Conroy was unable to swallow sufficient quantities of food and water to live without the help of the nasogastric tube.

Dr. Kazemi further testified at trial that Conroy was not brain dead,*fn2 not comatose, and not in a chronic vegetative state.*fn3 Dr. Bernard Davidoff, who testified for the guardian ad litem DeLaney, described Conroy's mental state as "severely demented." Severe contractions of her lower legs kept her in a semi-fetal position. Although Conroy did not respond to verbal stimuli, she followed movements with her eyes, used her hands to scratch herself, and was able to move her head, neck, arms and hands voluntarily. Catherine Rittel, an administrator-nurse

at Parklane, testified that Conroy smiled when she was massaged or her hair was combed and moaned when she was fed.

Neither physician could determine whether Conroy could feel pain. They speculated that although her gangrene and ulcers did not seem to be a source of pain, the leg contractions probably were. According to the physicians' testimony, if the nasogastric tube were to have been removed, Conroy would have died of dehydration and starvation in about a week. Dr. Kazemi described this as a painful death. Moreover, the trial judge recognized that "the removal of the tube will lead to suffering and death," and ordered the guardian and health care personnel "to take reasonable steps to minimize [Conroy's] discomfort . . . during her passage from life." 188 N.J. Super. at 532.

The physicians agreed there was no chance of an improvement in Conroy's mental condition. Dr. Davidoff observed, however, that none of Conroy's medical conditions was fatal and therefore that it could not be predicted when or from what cause Conroy would die.

I.

THE ISSUE OF MOOTNESS

We first address the guardian ad litem 's contention (withdrawn at oral argument) that this appeal should be dismissed because it has become moot. It is true, of course, that Conroy's death has rendered the issues that underlie this appeal moot. There no longer is a threat that the State will compel the continued treatment of Conroy against the exercise of her right to privacy or that the nasogastric tube will be removed contrary either to her best interests or to the State's interest in the preservation of life. Therefore, the conflict between the parties has become merely hypothetical. Nevertheless, we conclude that the importance of the issues presented by this appeal requires their resolution notwithstanding their mootness.

Although New Jersey's courts are not bound by the "case or controversy" requirement that U.S. Const., Art. III, ยง 2 imposes on federal courts, see Salorio v. Glaser, 82 N.J. 482, 490-491 appeal dismissed and cert. den. 449 U.S. 804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980); Crescent Pk. Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 107-108 (1971), our courts ordinarily will refuse to review questions that have become academic prior to judicial scrutiny out of reluctance to render a legal decision in the abstract and a desire to conserve judicial resources. See, e.g., Oxfeld v. New Jersey State Board of Education, 68 N.J. 301, 303-304 (1975); Sente v. Clifton, 66 N.J. 204, 205 (1974); Handabaka v. Division of Consumer Affairs, 167 N.J. Super. 12, 14 (App.Div.1979).

Nevertheless, our courts will decide a moot case that presents issues of great public importance or is based upon a controversy capable of repetition, yet evading review because of the short duration of any single plaintiff's interest. See e.g., Guttenberg Sav. & Loan Ass'n v. Rivera, 85 N.J. 617, 622-623 (1981); Dunellen Educ. Bd. v. Dunellen Educ. Ass'n, 64 N.J. 17, 22 (1973); John F. Kennedy Mem. Hosp. v. Heston, 58 N.J. 576, 579 (1971); State v. Union Cty. Park Comm'n, 48 N.J. 246, 248-249 (1966); East Brunswick Tp. Educ. Bd. v. E. Brunswick Tp. Council, 48 N.J. 94, 109 (1966); State v. Perricone, 37 N.J. 463, 469, cert. den. 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962); Playcrafters Student Members v. Teaneck Tp. Educ. Bd., 177 N.J. Super. 66, 73-74 (App.Div.), aff'd o.b. 88 N.J. 74 (1981); Humane Society of the U.S. v. Guido, 173 N.J. Super. 223, 228 (App.Div.1980). See generally Busik v. Levine, 63 N.J. 351, 363-364, appeal dismissed 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).

The issues presented by this appeal are of such great public importance that their resolution is clearly warranted. This appeal offers an opportunity to provide guidance to family members, guardians, physicians and hospitals, the need for which extends far beyond the facts of this case. Moreover, this

is the type of case that is capable of repetition, yet which evades review because the patients involved often die during the course of litigation. Cf. Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 712-13, 35 L. Ed. 2d 147 (1973). For these reasons, courts have consistently agreed to decide the rights of terminally ill patients to refuse life-sustaining treatment even after the patients have died or recovered. See John F. Kennedy Mem. Hosp. v. Heston, supra, 58 N.J. at 579; State v. Perricone, supra, 37 N.J. at 469; Matter of Spring, 380 Mass. 629, 405 N.E. 2d 115 (1980); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E. 2d 417 (1977); Matter of Storar, 52 N.Y. 2d 363, 438 N.Y.S. 2d 266, 268-69, 420 N.E. 2d 64, 66-67 (Ct.App.), cert. den. 454 U.S. 858, 102 S. Ct. 309, 70 L. Ed. 2d 153 (1981).

II.

CONROY'S RIGHT TO PRIVACY

We turn, then, to the merits of this appeal.*fn4 The basic issue before us is whether the judgment here entered represents a legally permissible application of the principles of In re Quinlan, 70 N.J. 10, cert. den. 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). The decision in Quinlan was based upon the patient's right of privacy which was deemed, under the circumstances there, to outweigh the State's interest in the preservation of life. The question then is whether under the circumstances here there was also a right of privacy which outweighed that paramount state interest and which therefore could justify the withdrawal of life-sustaining nourishment from this patient.

If the State's interest in the preservation of life outweighs the patient's right of privacy, such withdrawal would be an act of euthanasia, constituting homicide. It is only if the right of privacy could be reasonably deemed to prevail that withdrawal would be legally permissible under the Quinlan doctrine. We reverse the judgment here entered because in our view we regard it as the authorization of euthanasia.

The right to privacy is recognized under the United States Constitution as a "penumbra" derived from several more specific constitutional guarantees. See Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965). This right is also protected by N.J. Const. (1947), Art. I, par. 1. In re Grady, 85 N.J. 235, 249 (1981); State v. Saunders, 75 N.J. 200, 210-217 (1977). The right to privacy is not absolute, however; it must yield to important state interests in areas protected by that right. Roe v. Wade, supra, 410 U.S. at 155, 93 S. Ct. at 727-28. In In re Quinlan, supra, the Supreme Court of New Jersey applied the right to privacy balance to a comatose patient's petition to discontinue extraordinary life-sustaining treatment.

When the Quinlan case was decided, its subject -- Karen Ann Quinlan -- was a 22-year-old woman in an irreversible coma, a symptom of severe brain damage caused by prolonged anoxia. Karen was in a "chronic vegetative state," in which she retained neurological control over her blood pressure, heart rate, chewing, swallowing, sleeping and waking, but lost all more sophisticated brain stem and higher neurological functions. Thus, although she reacted to light, sound and noxious stimuli on a primitive reflex level, she was not consciously aware of her surroundings: she had no cognitive function. No existing medical technique could have been expected to restore her to cognitive or sapient life.

One of the brain stem functions Karen Quinlan was believed to have lost was the ability to breathe unassisted. Therefore she was connected to a ...


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