Family Law Keyed to Weisbergback
Brief Fact Summary. A.C. was diagnosed with inoperable cancer while pregnant. Her condition worsened until she was unable to adequately communicate, and a hearing was held to determine if a caesarean section should be performed, during which there was conflicting testimony as to if A.C. would have consented to the operation.
Synopsis of Rule of Law. The procedure of substituted judgment must be used to ascertain the wishes of an incompetent patient to submit to treatment unless there are truly extraordinary or compelling reasons for overriding the patient’s wishes.
Facts. A.C. was diagnosed with cancer at the age of thirteen. She married and became pregnant during a period of remission at twenty-seven. At approximately twenty-five weeks into the pregnancy, she was diagnosed with an inoperable tumor. She was asked if she really wanted to have her baby, and said that she did. Shortly thereafter her condition was deemed terminal, and she agreed to palliative treatment intended to extend her life to at least twenty-eight weeks of pregnancy to increase the potential outcome for the fetus if intervention was necessary. The treatment presented increased risk for the fetus, but was intended to prolong her life and maintain her comfort. She said at this point that she thought she still wanted to have the baby. Her condition quickly deteriorated and she was unable to communicate. A hearing was held to determine if a caesarean section should be performed. Testimony established that the fetus had a fifty to sixty percent chance of surviving a caes
arean section at twenty-six weeks. There was considerable debate as to whether A.C. would have consented to the caesarean at twenty-six weeks. The trial court found that A.C. would probably die within a day or two, that the caesarean would probably hasten the death of A.C., but would increase the chance of survival for the fetus. The court also found that it did not clearly know A.C.’s current views, but that the state had a legitimate interest in protecting the viable fetus. The caesarean was performed, but the baby died after a few hours and A.C. died of cancer two days later.
Issue. Who has the right to decide the course of medical treatment for a patient near death and pregnant with a viable fetus?
If the patient cannot make the decision for herself, how should the decision be made?
Held. The trial court erred by proceeding to a balancing analysis between the rights of A.C. versus the state without first finding a competent refusal by A.C. to go forward with surgery or without finding through substituted judgment that she would not have consented to surgery.
Any competent person has the right to accept or forego medical treatment. Likewise, the courts do not force a person to permit a significant intrusion upon their body for the benefit of another’s health.
First a court must determine if a patient is competent to make her own medical decisions, attempting to speak to the patient to ascertain her witnesses directly whenever feasible.
If the patient is incompetent to make a determination, the court must use the substituted judgment procedure, placing itself in the position of the incompetent and acting upon the same considerations and motives that would have moved her. Generally due process would suggest that an attorney or guardian ad litem should be appointed for the patient in this scenario. Greatest weight should be given to the previously expressed wishes of the patient, while a probing of the patient’s value system and determining what most persons would likely do also aiding the court.
Dissent. Substantial weight should be given to the rights of the viable unborn child. If the court determines that the patient would probably opt against a caesarean section, the court should vary the weight given this factor in proportion to the confidence the court has in the accuracy of its conclusion. The child’s interest in being born with the least degree of impairment should also be considered.
Discussion. The majority notes that family will often be the best source to determine the patient’s value system, but expresses concern that sometimes family members may rely on their own judgments or predilections rather than those of the patient.