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In re Clark

Decided: April 7, 1986.


Talbott, J.s.c.


This matter is before the court on an Order to Show Cause of Cooper Hospital/University Medical Center for a declaratory judgment as to the competency of George Clark and a determination as to whether a life-saving enterostomy operation should be ordered for a patient whose neurological and medical condition, while severe, has not reached the vegetative state. Significant to this determination is whether the standards and procedures set forth by the Supreme Court in In re Quinlan, 70 N.J. 10 (1976), and In re Conroy, 98 N.J. 321 (1985), are applicable in this situation.

George Clark is a 45-year-old white male who has been a patient at Camden County Health Services at Lakeland since October 1982. Clark was admitted to Cooper Hospital/University Medical Center (Cooper) on November 21, 1985. His admitting diagnosis was malnourishment and dehydration caused by his incapacity to eat a sufficient amount of food. Although he has partial paralysis and organic brain damage from a stroke suffered approximately four years ago, resulting in a very low cognitive level, Clark is not in a coma nor in a vegetative state. The circumstances of this case are unique in that, if the proposed operation is performed, Clark's medical problem connected with malnutrition would be resolved and he could live indefinitely since his other problems are not life-threatening, whereas without the operation Clark will most likely die of starvation and dehydration within a short period of time.

At a hearing on December 19, 1985, testimony was given by seven of Clark's twelve siblings, and by a number of physicians who examined him: Dr. McMahon, Clark's attending physician; Benjamin Wolfson, M.D., a psychiatrist; Allen C. Zechowy, M.D., a neurologist and a member of the Cooper staff; and Richard Spence, M.D. a cardiovascular surgeon, also a member of the Cooper staff and a member of the Optimal Care Committee. He testified on behalf of the Committee.

The first issue is Clark's competency to consent to the proposed surgical enterostomy. The test for determining if a person is capable of consenting to medical treatment is whether the patient can reasonably understand the condition, the nature and effect of the proposed treatment, and the attendant risks of pursuing or not pursuing the treatment. In re Conroy, 98 N.J. 321, 382 (1985), citing In re Schiller, 148 N.J. Super. 168, 180-181 (Ch.Div.1977).

Clark's attending physician at Cooper is Thomas McMahon, M.D., who is board certified in internal medicine. Dr. McMahon has seen Clark almost every day for a period of two months. He testified that, in his opinion, Clark cannot comprehend his own medical condition, nor the risks, alternatives and possible effect of proposed treatment plans. Dr. McMahon stated that it is difficult to say how much Clark understands because he cannot communicate to any significant degree. While he can sometimes mumble words or shake his head sufficiently to state simple needs, he is not competent to consent to or refuse surgery.

Dr. Wolfson, a psychiatrist engaged by the court appointed Guardian Ad Litem, John Mulderig, Esq., examined the patient on December 18, 1985. Dr. Wolfson agreed that Clark is not competent to make decisions on his own behalf or to care for himself. Dr. Wolfson stated that although Clark frequently closed his eyes and was lethargic during the doctor's examination, he was able to respond when spoken to. Clark could whisper "yes" and "no" appropriately at times, and could follow instructions to use other means of communicating, such as nodding or shaking his head, or blinking his eyes. Dr. Wolfson requested that Clark write, and although Clark was not physically able to write (his hand went off the page), he was able to attempt a purposeful response to Dr. Wolfson's request that he write. He was able to respond to one-step commands, and to make simple arithmetic calculations by showing numbers with his fingers. However, this activity was not consistent or sustained. At times, Clark appeared confused and could not

follow Dr. Wolfson's instructions. In response to Dr. Wolfson's question of whether he was happy, Clark nodded "yes." He was aware that he was in a hospital, although he did not know which hospital he was in. Dr. Wolfson diagnosed the patient as having limited intellect, being somewhat immature, and using passive-aggressive methods of behavior. In Dr. Wolfson's medical opinion, a greater effort should be made to feed George Clark by mouth. Finally, Dr. Wolfson testified that, in his opinion, Clark is not competent to consent to the medical procedure. When asked if he wanted surgery, Clark said "no," but Dr. Wolfson stated that it is unclear whether Clark understood the implications of foregoing the procedure.

Based on the testimony of Drs. McMahon and Wolfson, I find that Clark, although able to interact somewhat with his environment, is not competent to give informed consent to the proposed medical treatment or to govern his affairs in general. He is not competent to comprehend his medical condition, or to understand the nature and effect of the proposed enterostomy, nor the attendant risks of pursuing or not pursuing the treatment. I further find that the testimony is clear and convincing that Clark will not regain the capability of making the decision for himself. In re Grady, 85 N.J. 235, 265 (1981). It is therefore appropriate that a temporary guardian for the purpose of consenting to any medically necessary procedures be appointed by this court.

The second issue before the court is whether an enterostomy should be performed. Since November 25, 1985, Clark has been nourished by means of central intravenous lines which have a useful life of approximately one week. Dr. McMahon suggested the treatment plan for Clark, which includes performing an enterostomy: placing a permanent feeding tube into the stomach or jejunum. It is Dr. McMahon's opinion that, with the enterostomy, Clark could live for a long period, but without it he will probably die in a short time. Clark's family refused to consent to this operation.

The procedure for determining whether life sustaining treatment should be provided to or withheld from incompetent patients was discussed in In re Quinlan, 70 N.J. 10 (1976) and In re Conroy, 98 N.J. 321 (1985). In Quinlan, the patient was a 21-year-old woman who was in a persistent vegetative state. Her father sought to be appointed guardian and sought the power of authorizing the discontinuance of extraordinary life support mechanisms. In Conroy, the patient was an 84-year-old nursing home patient who suffered from serious irreversible physical and mental impairments. Her nephew and guardian sought permission to remove a nasogastric feeding tube, which was the primary means of nourishing Claire Conroy.

There are a number of similarities in the patients' situations, but Clark's condition does not place him squarely within either the Quinlan or the Conroy categories. Unlike either Ms. Quinlan or Ms. Conroy, Clark is not in a coma nor in a vegetative state. Unlike Karen Quinlan, who had no physical problems other than her comatose condition, Clark has medical problems unrelated to his stroke, including gastric problems, high blood pressure, partial paralysis and incontinency. But his medical condition is not quite as severe as that of Ms. Conroy, which was described by the Supreme Court:

At the time of trial, Ms. Conroy was no longer ambulatory and was confined to bed, unable to move from a semi-fetal position. She suffered from arteriosclerotic heart disease, hypertension, and diabetes mellitus; her left leg was gangrenous to her knee; she had several necrotic decubitus ulcers (bed sores) on her left foot, leg and hip; an eye problem required irrigation; she had a urinary catheter in place and could not control her bowels; she could not speak; and her ability to swallow was very limited. On the other hand, she interacted with her environment in some limited ways: she could move her head, neck, hands and arms to a minor extent; she was able to scratch herself, and had pulled at her bandages, tube, and catheter; she moaned occasionally when moved or fed through the tube, or when her bandages were changed; her eyes sometimes followed individuals in the room; her facial expressions were different when she was awake from when she was asleep; and she smiled on occasion when her hair was combed, or when she received a comforting rub. [ Conroy, supra, 98 N.J. at 337.]

Despite some differences in the patients' conditions, the standards for substitute decision-making articulated in Quinlan

and Conroy are applicable in this case. Clark, like Quinlan and Conroy, is not competent to make treatment decisions on his own behalf. In Quinlan, the Supreme Court specifically stated that:

[t]he declaratory relief we here award is not intended to imply that the principles enunciated in this case might not be applicable in divers other types of terminal medical situations . . . not necessarily involving the hopeless loss of cognitive or sapient life.

Quinlan, supra, 70 N.J. at 54, n. 10.

In Conroy, the Court stated that it had not attempted to set forth guidelines for decision-making with respect to life-sustaining treatment in a variety of other situations not before the Court. The Court cited as examples of such other situations "That of the severely deformed newborn, of the never-competent adult suffering from a painful and debilitating illness, and of the mentally alert quadriplegic who has given up on life." Conroy, supra, 98 N.J. at 387. These other situations differ significantly from that of Claire Conroy: deformed newborns and never-competent adults have never expressed their subjective attitudes towards medical treatment, while mentally alert quadriplegics could probably make informed decisions concerning medical treatment. On the other hand, Clark's situation is comparable to that of Claire Conroy. It is therefore appropriate to decide this case under the Quinlan and Conroy standards.

In both Quinlan and Conroy, the New Jersey Supreme Court stated that, if competent to make medical decisions on her or his own behalf, a patient could choose to refuse the proposed treatment. In Quinlan, the Court stated:

We have no doubt . . . that if Karen were herself miraculously lucid for an interval (not altering the existing prognosis of the condition to which she would soon return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life-support apparatus, even if it meant the prospect of natural death.

Quinlan, supra, 70 N.J. at 39. Similarly, in Conroy, the Court reviewed the case law and concluded: "[W]e have no doubt that Ms. Conroy, if competent to ...

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