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In the Matter of the Appointment of A Special Medical Guardian

May 25, 2011

IN THE MATTER OF THE APPOINTMENT OF A SPECIAL MEDICAL GUARDIAN FOR G.S.


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Camden County, Docket No. C-117-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 11, 2011

Before Judges Sabatino, Alvarez, and Ostrer.

Following an evidentiary hearing at which several medical experts testified, the trial court issued an order on June 11, 2010 designating the parents of G.S., a developmentally-disabled minor who was then fifteen years old, as her special medical guardians for the specific purpose of authorizing a laparoscopic hysterectomy for their daughter for reasons of medical necessity. In particular, the parents sought the appointment based upon the advice of their daughter's physicians, as a means to alleviate her suffering from repeated seizures that occurred during her menstrual cycle. Thereafter, intervenor, the Division of Mental Health and Guardianship Advocacy ("the Division"), sought emergent appellate relief to stay the parents' appointment and the surgical procedure, pending appeal. The emergent applications were denied, first, by a panel of this court, and ultimately, by an order of the Supreme Court on July 8, 2010. The hysterectomy was subsequently performed, which reportedly improved G.S.'s symptoms.

Despite the fact that the surgery has been performed and the need for a special medical guardian for that purpose has lapsed, the Division continues to pursue the present appeal. It advocates, among other things, that this court should repudiate the procedures that the trial court followed in this case and prospectively fashion more stringent procedures and standards for the appointment of special medical guardians in comparable circumstances. Regardless of the potential wisdom of such proposed measures, we dismiss this appeal as moot, and instead leave the Division's policy recommendations to be considered in either the legislative or rule-making arenas.

Because the appeal is moot, we need not describe the facts and procedural history at length. We only recite a few of the most salient events and circumstances.

G.S. was born in 1995. It is undisputed that she has had severe developmental limitations her entire life. She cannot talk, walk, or feed herself. As diagnosed by her treating neurologist,*fn1 G.S. has "refractory mixed epilepsy, severe mental retardation, motor handicapped, with a static motor deficit[.]" These multiple deficits, according to the neurologist, stem from the fact that G.S.'s brain did not form properly, leading to what he termed as "cerebral dysgenesis." The neurologist estimated that although G.S. was chronologically the age of fifteen, her development was "no greater than [that of] an approximately two or two and a half year old at the most."

G.S. attends a school for children with disabilities and, according to her mother, needs to be watched at all waking moments. The mother also testified that, despite G.S.'s limitations, she is capable of expressing, and does express, pain, in non-specific ways such as crying, screaming, pinching or pulling the hair of others, and banging her head against a wall. As part of her underlying condition, G.S. has suffered from seizures from an early age.

The medical issues leading to this proceeding arose when G.S. began menstruating at age eleven, causing the child great discomfort on a monthly basis. Approximately one year later, G.S.'s neurologist referred the family to an adolescent specialist to discuss different possible treatment options, given G.S.'s unique circumstances. The adolescent specialist initially prescribed the contraceptive injection Depo-Provera, however, the initial effect of the drug appeared negligible, as G.S.'s periods "just got worse and worse and worse, because she ha[d] a lot a lot of pain with her period. She [wa]s very uncomfortable. She [wa]s irritable."

Shortly thereafter, while the family was on a vacation in Florida, the adolescent specialist received an urgent call from G.S.'s mother stating that the child "ha[d] been bleeding for [twenty-one] days straight[.]" The adolescent specialist immediately prescribed birth control pills, which "did help for the [remainder] of the trip." Upon returning to New Jersey, the family again met with the adolescent specialist who referred them at that point to an OB/GYN specialist. Meanwhile, G.S.'s seizures generally worsened and increased in frequency.

At their initial visit, the OB/GYN specialist met with G.S. and her parents and reviewed the child's medical file. He concluded that, "in a nutshell, [G.S.'s] problem was bleeding that had to be controlled that seemed to be manifesting with increased irritability . . . . the assumption is that there is menses and a change in behavior [and] some component of pain." The OB/GYN specialist administered a third scheduled DepoProvera injection and kept the child on birth control pills. Even with two forms of birth control, however, G.S. still experienced irregular bleeding. The injections were discontinued in favor of continuous birth control pills, which reduced -- but did not eliminate -- her "break-through bleeding," but also appeared to increase the frequency of G.S.'s "absence seizures."

G.S.'s menses-related seizures continued, despite the use of three prescribed anti-seizure medications. In an attempt to control the seizures, she was placed on a special diet and, on November 2, 2006, a Vagal Nerve Stimulator ["VNS"] was implanted into her chest and neck.*fn2 As reflected in the office reports of G.S.'s neurologist, the child's seizures continued to "cluster" around the time of her menstruation. Addressing her reproductive health was thus seen as the "last hurdle" to further reducing the amount of seizures.

The OB/GYN found that G.S.'s "risk for aspiration and pneumonia" was of "grave concern" and therefore a hysterectomy presented a minimalist way to have a long-term solution to the problem. [Otherwise] it's medical management forever back and forth, try adjusting. . . . [B]irth control pills [also] affect seizure meds. So the other dilemma . . . with taking birth control pills is that you're always adjusting your meds. You have to take levels, draw blood, you know, check where you are[.] . . .

[T]he only long-term solution I could come up with for complete amenorrhea so [she would be] off the medication completely is to do a supracervical hysterectomy.

The OB/GYN specialist proposed removing the fundus of the uterus, while leaving the cervix and ovaries intact.

In August 2008, the OB/GYN specialist brought the family before the hospital's Bioethics Committee to seek its formal approval for the procedure. In addition to the regular committee members, G.S.'s case was also heard by an independent OB/GYN, two developmental psychologists, and the hospital's Senior Vice President and counsel. The meeting consisted of "a discussion about [G.S.'s] medical condition and her case and what were the ...


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