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In re Elizabeth Visbeck an

February 4, 1986

IN THE MATTER OF ELIZABETH VISBECK AN ALLEGED INCOMPETENT


Stanton, A.j.s.c.

Stanton

[210 NJSuper Page 529] The question presented in this case is whether a feeding tube should be surgically implanted in the stomach of a 90-year old patient who has suffered a severely disabling stroke. Without the feeding tube, the patient will suffer death from dehydration and starvation. With the tube, the nutritional needs of the patient will be fully met, although she will remain permanently in very poor physical and mental condition. Under the particular circumstances of this case, I have decided that the feeding tube should be implanted.

This action was instituted by Chilton Memorial Hospital, which is located in Pompton Plains, Morris County, New Jersey. Elizabeth Visbeck, a 90-year old woman had originally been admitted to that hospital in August 1985 suffering from congestive heart failure and auricular fibrillation. At that time a pacemaker was implanted and Mrs. Visbeck was discharged from the hospital in satisfactory condition. On November 6, 1985, Mrs. Visbeck was admitted to Chilton Memorial Hospital complaining of shortness of breath. At the time of this admission, the patient was mentally alert and ambulatory. Her diagnosis on admission was congestive heart failure. On November 8, while in the hospital, the patient suffered an extensive right cerebral infarction, a massive stroke, which had a severely disabling impact. As a result of the stroke, Mrs. Visbeck lost much of her mental capacity, was paralyzed on the right side, was unable to speak, became incontinent of urine and feces, could not walk and lost the ability to swallow food or fluids. All of this was imposed upon an underlying serious heart condition and upon the general infirmities of very advanced age.

Shortly after she suffered the stroke, attending physicians inserted a nasogastric feeding tube through the patient's nose, down her esophagus and into her stomach. Mrs. Visbeck was successfully nourished through the nasogastric tube until January 23, 1986. On that date, the tube became clogged and had to be removed. Over the next two days, several different physicians made attempts to re-insert a nasogastric tube, but were unable to do so. Intravenous feeding was started. Intravenous feeding is not a long-term solution to the nutritional needs of a patient like Mrs. Visbeck who is unable to swallow. Enough fluids to prevent serious dehydration can be supplied intravenously. It is, however, impossible to supply enough calories intravenously to meet the minimum daily needs of a patient. There is a nutritional deficit and some loss of body mass every day. After several weeks or a month of intravenous feeding of a patient in Mrs. Visbeck's condition, the

cumulative loss would become critical and death would fairly shortly ensue. Furthermore, intravenous feeding imposes significant strains on the veins of a patient. They become, in effect, worn out and unable to absorb feeding. There is a serious risk that in much less than a month Mrs. Visbeck will not have any veins capable of handling intravenous feeding.

A few days after removal of the nasogastric feeding tube, Mrs. Visbeck's attending physicians decided that the only effective way to meet their patient's nutritional needs was to implant a feeding tube in her stomach. The surgical procedure involved is simple and can be performed under local anesthetic. Because they recognized that Mrs. Visbeck lacked the mental capacity to give an informed consent to the surgery, the physicians sought the consent of her son and only close relative, Henry Visbeck. The son's initial reaction to the proposed surgical implanting of a feeding tube was that it would amount to a wrongful prolonging of his mother's suffering. He refused permission for the operation. The hospital then instituted this action on January 28, 1986, seeking an adjudication that Elizabeth Visbeck was incompetent and asking for the appointment of a guardian who would consent to necessary medical treatment.

When I was informed early on the morning of January 28 that counsel for Chilton Memorial Hospital would appear in court at 1:30 p.m. to file a complaint and seek emergent relief, I immediately appointed an attorney to represent Elizabeth Visbeck and requested him to visit the patient and review her medical records. By the time the initial hearing in this matter opened on the afternoon of January 28, Mrs. Visbeck's attorney was in place, and he had visited his client, spoken with some of her care providers and reviewed some of her records. Counsel for Henry Visbeck was also present. At the hearing on January 28, I was presented with a complaint verified by Walter Jura, the Assistant Administrator of Chilton Memorial, and with many of the medical records of Elizabeth Visbeck. I also received a certification from Dr. Abhay Suda, the physician who is primarily responsible for Mrs. Visbeck's care. Dr. Suda is

board certified in internal medicine and endocrinology. I received a certification from Dr. Louis Chodosh, a consulting physician who is board certified in neurology and psychiatry. After reading the documentary evidence and hearing statements from all counsel at the initial hearing on January 28, I decided that a prompt final disposition of the case was necessary, but that a sound decision could not be made without taking live testimony and without my making a personal visit to the patient. Accordingly, I arranged a visit to Mrs. Visbeck during the afternoon of January 28 and scheduled a final plenary hearing for 9:00 a.m. on January 29.

On the night of January 28, Henry Visbeck visited his mother and gave further thought to her situation. He decided to change his mind and to consent to the surgical implanting of the feeding tube. When counsel informed me of this, I decided that we should nevertheless go forward with the hearing. For one thing, it seemed to be clear and undisputed that Mrs. Visbeck was not capable of making treatment decisions. It seemed desirable to have a formally appointed guardian in place to make decisions for her. In light of the past history of disagreement about Mrs. Visbeck's treatment, it seemed useful to have some directions from the court with respect to future treatment. All counsel agreed that a hearing and a judgment would be useful, even though there was current agreement about implanting the tube between the patient's physicians and her son. At the hearing on January 29, I took live testimony from the neurologist, Dr. Louis Chodosh, and from Henry Visbeck. All counsel made statements. At the end of the hearing, an oral opinion was rendered from the bench. A formal judgment was signed and issued on the morning of January 29.

The judgment declared that Elizabeth Visbeck was incompetent and that she lacked the capacity to make decisions about her medical treatment. Henry Visbeck was appointed guardian of the person and property of his mother. He was granted authority to make decisions about his mother's medical treatment,

including authority to make decisions about initiating, continuing, withholding or withdrawing life-supporting care. Although the judgment granted Mr. Visbeck general authority to make treatment decisions, it specifically directed him promptly to authorize the surgical implanting of the feeding tube. The judgment provided that changes in Mrs. Visbeck's mental condition or in her general physical condition, or a significant adverse reaction to the feeding tube, might justify removal of the tube in the near future or in the more distant future. So long as Elizabeth Visbeck is a patient at Chilton Memorial Hospital or at any other hospital, removal of the tube may not occur without agreement of the prognosis committee of the hospital. If Mrs. Visbeck leaves the hospital and goes to a nursing home, then, under the terms of the judgment, the tube may not be removed unless the procedures set forth in Matter of Conroy, 98 N.J. 321, 383-385 (1985), are followed.

This written opinion supersedes the oral opinion I delivered from the bench on January 29. It does not differ in substance from that opinion. It is intended to be a more careful articulation of the fact finding and reasoning contained in the oral opinion.

The key judicial decision in this area of concern is Matter of Conroy, 98 N.J. 321 (1985). In strict terms, Conroy is not controlling in our present case because it was specifically restricted to elderly nursing home residents suffering from serious and permanent mental and physical impairments, who will probably die within approximately one year even with treatment, and who, though formerly competent, are now incompetent to make decisions about life-sustaining treatment and are unlikely to regain such competence. Matter of Conroy, supra, 98 N.J. at 342. The New Jersey Supreme Court in Conroy was particularly concerned with the special problems of nursing home patients. Id. at 377-381. Since Mrs. Visbeck is a patient ...


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