MINOR CHILDREN MATURE MINORS UNBORN CHILDREN ADULT CHILDREN

******************                            ******************

******************

On June 30, 1990, a Jehovah's Witnesses Mother of four children, including the newborn she had just delivered via cesarean section, chose to die rather than consent to a blood transfusion. Tammy Herbolt, age 29, refused the blood transfusion because it was against her WatchTower beliefs. Her Jehovah's Witnesses husband, James Herbolt, agreed with her decision. This tragedy played out at St. Luke Hospital, in Fort Thomas, Kentucky. Doctors and nurses tried to stem the tide of blood coming from the incision and Tammy Herbolt's uterus, but only a blood transfusion would have saved her. Unknown if the grieving husband later filed a malpractice lawsuit.

******************

Yolanda and Ernesto Munoz were baptized as Jehovah's Witnesses over sixteen years ago. They are both members of the Jamaica Plain Kingdom Hall of Jehovah's Witnesses. They attended three religious meetings every week. A principal tenet of the Jehovah's Witnesses religion is a belief, based on interpretations of the Bible, that the act of receiving blood or blood products precluded an individual resurrection and everlasting life after death.

Norwood Hospital had a written policy regarding patients who refuse to consent to the administration of blood or blood products. According to this policy, if the patient arrives at the hospital in need of emergency medical treatment and there is no time to investigate the patient's circumstances or competence to make decisions regarding treatment, the blood transfusion will be performed if necessary to save the patient's life. If the patient, in a nonemergency situation, refuses to consent to a blood transfusion, and the patient is a competent adult, not pregnant, and does not have minor children, the hospital will accede to the patient's refusal. If the patient, in a non- emergency situation, refuses to consent to a blood transfusion, and the patient is a minor, an incompetent adult, pregnant, or a competent adult with minor children, the hospital's policy is to seek judicial determination of the rights and responsibilities of the parties.

Although no longer in an emergency situation once her ulcer stopped bleeding, Yolanda Munoz had a minor son, Ernesto, Jr. Thus, on April 12, the hospital filed a complaint for a declaratory judgment in the Norfolk Division of the Probate and Family Court requesting that Munoz be required to accept blood transfusions, which her attending physician believed to be reasonably necessary to save her life. On that same day, the judge granted a temporary restraining order authorizing the hospital to "administer transfusions of blood or blood products in the event that Yolanda Munoz hemorrhages to the extent that her life is severely threatened by loss of blood in the opinion of her attending physicians." The court also appointed Mr. Jonathan Brant to serve as guardian ad litem for five year old Ernesto, Jr.

On April 13, the judge held a full evidentiary hearing. Dr. Perrotto stated in an unchallenged affidavit that, if Mrs. Munoz were to begin bleeding again, she would have an excellent chance of recovering if she received a blood transfusion. If she started to bleed, however, and did not receive a blood transfusion, she would probably die. In addition, Dr. Perrotto stated that there was no alternative course of medical treatment capable of saving the patient's life. Ernesto Munoz and James Joslin, Mrs. Munoz's brother-in-law, testified at the hearing in favor of allowing Mrs. Munoz to refuse the blood transfusion. The guardian ad litem's report, which recommended that the hospital's request for a declaratory judgment be denied, was admitted in evidence.

On April 14, the judge granted the declaratory judgment authorizing blood transfusions which were "reasonably necessary to save Yolanda Munoz's life." The judgment also absolved the hospital and its agents from any civil or criminal liability, except for negligence or malpractice, which might arise from a blood transfusion. On May 11, 1989, the judge issued a detailed opinion explaining his reasons for granting the declaratory judgment. The judge found the patient competent; she understood the nature of her illness, and the potential serious consequences of her decision, including the risk of imminent death if her bleeding resumed and blood transfusions were not administered. While recognizing that a competent adult may usually refuse medical treatment, the judge stated that the hospital could administer the blood transfusions because, if they did not and Mrs. Munoz subsequently died, Ernesto, Jr., would be "abandoned."

The judge concluded that the State's interest in protecting the well-being of Ernesto, Jr., outweighed Ms. Munoz's right to refuse the medical treatment. Ernesto Munoz worked sixteen hours a day, Monday through Friday, and seven hours on Saturday driving his own commercial truck. Yolanda Munoz worked at a beauty salon from 9 A.M. to 3 P.M., three days a week. Ernesto, Jr., was enrolled in a day-care center Monday through Friday, from 9 A.M. until 4 P.M. The judge found that Yolanda Munoz was the "principal homemaker and principal caretaker of Ernesto, Jr." The judge also found that, while Ernesto's father, who lived in the home, was available to assist in caring for Ernesto, Jr., his assistance would be inadequate because of his advanced age, his inability to speak English, his unemployment, his lack of a driver's license, and because he had not, in the past, played a significant role in caring for his grandson. In addition, the judge found, that while Sonia and James Joslin, Ernesto's sister and brother-in-law, expressed a willingness to help Ernesto take care of the child in the event that Mrs. Munoz died, the family had not formulated a concrete plan for the care and support of Ernesto, Jr. The judge concluded that Mrs. Munoz's death "would be likely to cause an emotional abandonment of Ernesto, Jr., which would more probably than not be detrimental to his best interests." The judge ruled that "the State, as parens patriae, will not allow a parent to abandon a child, and so it should not allow this most ultimate of voluntary abandonments."

Although Munoz's ulcer did not hemorrhage after the entry of the judgment, and she was released from the hospital without receiving a blood transfusion, she appealed (probably on the urging of the WatchTower's Legal Department). Munoz argued that the trial judge erred because she has a right, as a competent adult, to refuse life-saving medical treatment, and the State's interests do not override that right. The Massachusetts Supreme Court agreed, stating in part:

"... This court has recognized the right of a competent individual to refuse medical treatment. We have declared that individuals have a common law right to determine for themselves whether to allow a physical invasion of their bodies. ... We have stated that 'a person has a strong interest in being free from nonconsensual invasion of his bodily integrity.' ... See Roe v. Wade, ... .

"The right to bodily integrity has been developed further through the doctrine of informed consent, ... Under the doctrine, a physician has the duty to disclose to a competent adult 'sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure.' ... It is for the individual to decide whether a particular medical treatment is in the individual's best interests. As a result, 'the law protects [a person's] right to make her own decision to accept or reject treatment, whether that decision is wise or unwise.'

"There is no doubt, therefore, that Ms. Munoz has a right to refuse the blood transfusion. Initially, it is for her to decide, after having been informed by the medical personnel of the risks involved in not accepting the blood transfusion, whether to consent to the medical treatment. The fact that the treatment involves life-saving procedures does not undermine Ms. Munoz's rights to bodily integrity and privacy, except to the extent that the right must then be balanced against the State's interests. ... ...

"Numerous courts have recognized the right of a competent individual to refuse medical treatment even if that decision will hasten death. ...

"Ms. Munoz argues that, in addition to her rights to bodily integrity and privacy, she has a right secured by the free exercise clause of the First Amendment to the United States Constitution to object to the administration of blood or blood products because to consent to the blood transfusions would violate one of the principal tenets of her Jehovah's Witnesses faith. Some courts have recognized a free exercise right on the part of Jehovah's Witnesses to refuse blood transfusions. ... We do not think it is necessary, however, to decide whether Ms. Munoz has a free exercise right to refuse the administration of blood or blood products, since we have already held that she has a common law and constitutional privacy right to refuse a blood transfusion. Also, we need not decide whether a patient's right is strengthened because the objection to the medical treatment is based on religious principles. ...

"The New York Court of Appeals reached a similar conclusion in Fosmire v. Nicoleau, supra. The court refused to consider whether the constitutional rights of a Jehovah's Witness, who refused blood transfusions, were violated when the lower court ordered that the transfusion be administered. The court refused to reach the constitutional issues since it held that the patient had a common law and statutory right to decline the blood transfusion. ... ... ...

"The State's interests. The right to refuse medical treatment in life-threatening situations is not absolute. ... We have recognized four countervailing interests: (1) the preservation of life; (2) the prevention of suicide; (3) the maintenance of the ethical integrity of the medical profession; and (4) the protection of innocent third parties. ...

"The judge determined that the patient did not want to die. Declining potentially life-saving treatment may not be viewed properly as an attempt to commit suicide. ... Therefore, it is clear that the second interest listed above does not apply in this case. ...

"... The State has an interest in preserving life, especially in a case such as the present one where the patient's affliction is curable. ... The State's interest in preserving life has 'two separate but related concerns: an interest in preserving the life of the particular patient, and an interest in preserving the sanctity of all life.' ... As to the former, the State's concern is weakened when the decision maker (the individual who refuses to consent to the treatment) is also the patient 'because the life that the state is seeking to protect in such a situation is the life of the same person who has competently decided to forgo the medical intervention; it is not some other actual or potential life that cannot adequately protect itself.' ... In cases where a competent adult refuses medical treatment for herself, the State's interest in preserving the particular patient's life will not override the individual's decision. ...

"... preservation of life is the more abstract notion of protecting the sanctity of life. In determining whether this concept applies, we must keep in mind that the right to privacy is an 'expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.' ... 'The duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual [herself] would feel that efforts to sustain life demean or degrade [her] humanity.'

"In this case, the patient, a fully competent adult, determined for herself that she could not consent to the administration of blood or blood products because to do so would violate a sacred religious belief. The patient decided that she would rather risk death than accept the blood transfusion. We can assume that, for this patient, death without receiving a blood transfusion is preferable to life after receiving the transfusion. The quality and integrity of this patient's life after a blood transfusion would be diminished in her view. Therefore, we conclude that the State's interest in protecting the sanctity of life must give way to the patient's decision to forgo treatment.

"... The State has an interest in maintaining the ethical integrity of the medical profession by giving hospitals and their staffs a full opportunity to assist those in their care. ... However, we have stated that 'so long as we decline to force the hospital to participate .. there is no violation of the integrity of the medical profession.' ... We have recognized that medical ethics do not require that a patient's life be preserved in all circumstances. ... Last, the ethical integrity of the profession is not threatened by allowing competent patients to decide for themselves whether a particular medical treatment is in their best interests. ... In the circumstances of this case, the State's interest in maintaining the ethical integrity of the profession does not outweigh the patient's right to refuse blood transfusions.

"... The final, and in this case the most compelling, State interest is the protection of the patient's minor child. The State asparens patriae has an interest in protecting the well-being of children. See Prince v. Massachusetts, ... (1944). The issue is whether a competent adult can be prevented from exercising her right to refuse life-saving medical treatment because of the individual's duties to her child.

"The Florida State courts recently have addressed this issue. ... The patient in Wons was a thirty-eight year old woman, mother of two minor children, who suffered from dysfunctional uterine bleeding. The patient's physicians informed her that she required treatment in the form of blood transfusions. The patient, however, refused to consent to the transfusions because of her beliefs as a Jehovah's Witness. It was the physicians' medical opinion that, if the patient did not consent to the blood transfusions, she would probably die. The trial judge granted an order authorizing the transfusion, but a Florida District Court of Appeals reversed, holding that the State's interest in protecting the patient's children did not override the patient's right to refuse the medical treatment because the patient's possible death would not result in the abandonment of her two children. ... As the court pointed out, the testimony showed that the patient came from a tightly knit family, all practicing Jehovah's Witnesses, and all of whom supported her decision to refuse the blood transfusion. ... The court also pointed out that the patient's husband and mother were willing to take care of the children in the event that the patient died. ... The court concluded that 'there is no showing of an abandonment of minor children, and, consequently, [the patient's] constitutional right to refuse a blood transfusion is not overridden under the circumstances of this case.' ...

"In Fosmire v. Nicoleau, ... (1990), the New York Court of Appeals apparently has held that the State's interest in protecting minor children will never be allowed to override the right of a competent individual to refuse medical treatment. The court explained that 'at common law the patient's right to decide the course of his or her own medical treatment was not conditioned on the patient['s] being without minor children or dependents.' ...

"We need only state that we agree with the reasoning of the Florida court, and hold that, in the absence of any compelling evidence that the child will be abandoned, the State's interest in protecting the well-being of children does not outweigh the right of a fully competent adult to refuse medical treatment. Our review of the record in this case reveals no such compelling evidence. ... The evidence shows that Ernesto Munoz supported his wife's decision not to consent to the blood transfusion. There is no evidence in the record that Ernesto was unwilling to take care of the child in the event that Ms. Munoz died. We note that the father has the financial resources to take care of the child and to make sure that the child's material needs are satisfied. We also note that Ernesto's sister and brother-in-law supported Ms. Munoz's decision, and were willing to assist Ernesto in taking care of the child.

"There can also be no doubt that, if Ms. Munoz had died, the entire family, including the young child, would have suffered a great loss. However, the State does not have an interest in maintaining a two-parent household in the absence of compelling evidence that the child will be abandoned if he is left under the care of a one-parent household.

'The parens patriae doctrine invoked herein cannot, we think, measure increments of love; it cannot mandate a two-parent, rather than a one-parent, family; it is solely concerned with seeing that minor children are cared for and are not abandoned.' Wons v. Public Health Trust ... In these circumstances the State's interest in protecting the welfare of the patient's child does not outweigh her right to refuse the blood transfusions.

"... The patient had the right to refuse to consent to the blood transfusion even though she would have in all probability died if she had started to hemorrhage. The State's interests in preserving the patient's life, in maintaining the ethical integrity of the profession, and in protecting the well-being of the patient's child, did not override the patient's right to refuse life-saving medical treatment. Accordingly, the judgment is reversed and a new judgment declaring the rights of the parties, consistent with this opinion, is to be entered in the Probate Court."

The Rights of Privacy and Free Exercise of Religion: "... the Florida Constitution guarantees that "a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one's health." ... In cases like this one, the privacy right overlaps with the right to freely exercise one's religion to protect the right of a person to refuse a blood transfusion because of religious convictions. ... ...

"The state has a duty to assure that a person's wishes regarding medical treatment are respected. That obligation serves to protect the rights of the individual from intrusion by the state unless the state has a compelling interest great enough to override this constitutional right. The means to carry out any such compelling state interest must be narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.

 

"... Among the factors we have identified that could be considered in determining whether to give force to a patient's right to refrain from medical treatment is the protection of innocent third parties ...

"The arguments made in this Court present two basic issues. First, we must determine whether it is appropriate for a hospital to assert the state interests in an attempt to defeat a patient's decision to forgo emergency medical treatment. Second, assuming the state interests were properly presented in this case, we must decide whether Patricia's rejection of a blood transfusion constituted, as the district court found, abandonment of the couple's minor children and amounted to a state interest that was compelling enough to override her constitutional rights of privacy and religious freedom, by the least intrusive means available.

Asserting the State Interests: "Patricia argues that Memorial Hospital should not have intervened in her private decision to refuse a blood transfusion. She claims that the "State" has never been a party in this action, has not asserted any interest, and that the hospital has no authority to assume the State's responsibilities. The hospital argues in its brief that as a public health care facility owned and operated by a special taxing district established under Florida law, it acted as a unit of local government and stood in the shoes of the State for the purposes of asserting the state interests. However, at oral argument, the hospital expressed substantial discomfort in assuming the role of the State in such proceedings. Consequently, both parties agreed that a procedure should be established by which the State can properly intervene if there is reason to do so.

"In most prior Florida decisions where state interests were asserted under analogous medical emergency situations, the State Attorney joined as a party at some point in the proceedings. ... ...One noteworthy exception is Public Health Trust of Dade County v. Wons ... (Fla. 1989), where, as in this case, the state interests were argued by a public health care provider without further intervention of the State. In discussing the need for court proceedings and the requisite burden of proof, we said "it will be necessary for hospitals that wish to contest a patient's refusal of treatment to commence court proceedings and sustain the heavy burden of proof that the state's interest outweighs the patient's constitutional rights." ... We merely assumed, based on the facts in that case, that the health care provider would raise the state interests. Until today, we were not asked to determine whether it is appropriate for a health care provider, as opposed to another party, to assert the state interests in the first instance.

"One noteworthy exception is Public Health Trust of Dade County v. Wons, (Fla. 1989)[A PRIOR CASE INVOLVING ANOTHER JEHOVAH'S WITNESS], where, as in this case, the state interests were argued by a public health care provider without further intervention of the State. In discussing the need for court proceedings and the requisite burden of proof, we said "it will be necessary for hospitals that wish to contest a patient's refusal of treatment to commence court proceedings and sustain the heavy burden of proof that the state's interest outweighs the patient's constitutional rights." ... We merely assumed, based on the facts in that case, that the health care provider would raise the state interests. Until today, we were not asked to determine whether it is appropriate for a health care provider, as opposed to another party, to assert the state interests in the first instance.

 

"We conclude that a health care provider must not be forced into the awkward position of having to argue zealously against the wishes of its own patient, seeking deference to the wishes or interests of nonpatients - in this case Patricia's husband, her brothers, the children, and the State itself. Patients do not lose their right to make decisions affecting their lives simply by entering a health care facility. Despite concededly good intentions, a health care provider's function is to provide medical treatment in accordance with the patient's wishes and best interests, not as a "substitute parent" supervening the wishes of a competent adult. Accordingly, a health care provider must comply with the wishes of a patient to refuse medical treatment unless ordered to do otherwise by a court of competent jurisdiction. A health care provider cannot act on behalf of the State to assert the state interests in these circumstances. This is an appropriate role for the State to play directly, not through the legal artifice of a special taxing district. ... ...

 

"... When a health care provider, acting in good faith, follows the wishes of a competent and informed patient to refuse medical treatment, the health care provider is acting appropriately and cannot be subjected to civil or criminal liability.

"Although this procedure absolves the health care facility of any obligation to go to court, we recognize the need for the State and interested parties to have the opportunity to seek judicial intervention if appropriate. Accordingly, a health care provider wishing to override a patient's decision to refuse medical treatment must immediately provide notice to the State Attorney presiding in the circuit where the controversy arises, and to interested third parties known to the health care provider. The extent to which the State Attorney chooses to engage in a legal action, if any, is discretionary based on the law and facts of each case. This procedure should eliminate needless litigation by health care providers while honoring the patient's wishes and giving other interested parties the right to intervene if there is a good faith reason to do so. ...
 

Protecting Innocent Third Parties: "The state interest raised in this case is the protection of innocent third parties, which the parties and courts in other jurisdictions under similar circumstances have termed the prevention of abandonment of minor children. Until Dubreuil, no other reported Florida appellate decision had found abandonment in this context. The case most closely on point in this Court's jurisprudence is Wons, where abandonment was discussed but not found.

 

"Norma Wons, a 38-year-old woman, had been suffering from dysfunctional uterine bleeding, and physicians said she could die without a blood transfusion. However, she refused based on her religious convictions as a Jehovah's Witness. Norma lived with her husband Henrich and their two minor children, who were twelve and fourteen years of age. Henrich was also a Jehovah's Witness and supported Norma's decision. Henrich worked to support the family, and during Norma's illness the children had been cared for in Henrich's absence by Norma's sixty-two-year-old mother, who was in good health. Testimony established that if Norma were to die, her mother and two brothers, who also were Jehovah's Witnesses, would assist in taking care of the children. The trial court ruled that Norma's refusal would deny the children the intangible right to be reared by two loving parents, and the state interest in protecting the two minor children overrode Norma's right to refuse lifesaving medical treatment. The Third District reversed, finding that there was no showing of an abandonment of the minor children to override Norma's constitutional rights. The district court said that:

'the societal interest in protecting Mrs. Wons' two minor children ... - although a vital and troubling consideration in this case - cannot, in our view, override Mrs. Wons' constitutional right to refuse a blood transfusion under the circumstances of this case. This is so because, simply put, Mrs. Wons' probable, but not certain, demise by refusing the subject blood transfusions will not result in an abandonment of her two minor children. According to the undisputed testimony below, she has a tightly knit family unit, all practicing Jehovah's Witnesses, all of whom fully support her decision to refuse a blood transfusion, all of whom will care for and rear the two minor children in the event she dies. Her husband will, plainly, continue supporting the two children with the aid of her two brothers; her mother, a sixty-two-year-old woman in good health, will also care for the children while her husband is at work. Without dispute, these children will not become wards of the state and will be reared by a loving family. ... .'

"This Court generally approved the district court's rationale and held that the state interest in maintaining a home with two parents for the minor children does not override a patient's constitutional rights of privacy and religion to refuse a potentially lifesaving blood transfusion. ...  

"... there was no abandonment proved in that case, so the protection of innocent third parties could not have been a 'compelling interest sufficient to override the competent patient's right to refuse treatment." ... Because there was no abandonment in Wons, we did not decide in that case 'whether evidence of abandonment alone would be sufficient in itself to override the competent patient's constitutional rights.' ...

 

"The trial court in Dubreuil found abandonment and held it to be an overriding state interest. The court distinguishedWons, noting that Luc no longer lived with Patricia and the children; Luc was not a Jehovah's Witness and consented to the transfusion; and Patricia presented no evidence of how the children would be cared for in the event of her death.

 

"In a split decision, the district court affirmed by reasoning that Wons put the burden on the hospital to prove abandonment, and under the emergency circumstances and limited evidence presented, the hospital carried its burden. The district court focused on the fact that no evidence was presented about Luc, his ability to care for the couple's children, or the ability or willingness of any others to help care for the children in the event of Patricia's death. The court rejected the argument that a presumption against finding abandonment should exist in the absence of firsthand evidence to the contrary, suggesting that if any presumption were to apply, it would be a presumption in favor of finding abandonment given the ages of the children and the preexisting custody conditions.

"The district court concluded that because there was no showing that the children of tender years would be protected in the event of their parent's death, the trial court did not abuse its discretion by concluding that 'there was an overriding interest in the state as parens patriae that outbalances the mother's free exercise and privacy right to reject the transfusion.'

"In dissent, Judge Warner observed that Luc, as the natural father, is the children's legal guardian and is responsible for their care as a matter of Florida law ... Judge Warner relied on our decision in Wons to conclude that because the hospital failed to present compelling evidence that abandonment would result from the rejection of medical treatment, no compelling state interest was established to override Patricia's decision. ...

 

"In her argument to this Court, Patricia urges us to eliminate from this line of cases any consideration given to the state interest in protecting innocent third parties from abandonment, claiming that it is inherently unsound and dangerous and cannot be consistently applied. She argues, for example, that it will lead beyond blood transfusions to major medical procedures ranging from Caesarean sections to heart bypass surgery; or it will allow courts to compel a pregnant Catholic woman who is the single parent of a minor child to have an abortion against her religious beliefs if taking the pregnancy to term would endanger the mother's life. She also argues that the rule eventually will go well beyond the protection of minor children, compelling a single adult, who cares for her dependent elderly parent or grandparent, to receive unwanted medical treatment in order to advance the state interest in protecting the elderly dependent.

"Patricia's argument has some merit. Parenthood, in and of itself, does not deprive one of living in accord with one's own beliefs. Society does not, for example, disparage or preclude one from performing an act of bravery resulting in the loss of that person's life simply because that person has parental responsibilities.

 

"Nonetheless, we decline at this time to rule out the possibility that some case not yet before us may present a compelling interest to prevent abandonment. ... Therefore, we think the better course is the one we took in Wons, where we held that 'these cases demand individual attention' and cannot be covered by a blanket rule. ...

 

"Next, Patricia argues that even if the prevention of abandonment may be a valid state interest, there was no proof in this record that an abandonment would have occurred had Patricia died after refusing medical treatment. We agree.

"Both the circuit and district courts failed to properly consider the father of the four children, Luc Dubreuil. Under Florida law, as Judge Warner's dissent correctly observed, a child with two living natural parents has two natural guardians who share equally the responsibilities of parenting.

 

"'If one parent dies, the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent remarries. If the marriage between the parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded.' ... Thus, Florida law unambiguously presumes that had Patricia died under these circumstances, Luc would have become the sole legal guardian of the couple's four minor children and would have been given full responsibility for their care in the absence of any contravening legal agreement or order. ..

 

"The State could rebut this strong legal presumption only by presenting clear and convincing evidence that Luc would not properly assume responsibility for the children under the circumstances. ... However, there was absolutely no such evidence presented in this case, as the record is silent as to Luc's ability or desire to care for the children. The record shows only that Luc and Patricia were married but separated, their minor children were under Patricia's care, Luc did not accompany his wife to the hospital, he was readily available when called to Patricia's bedside on the morning of April 6, and he was available to 'consent' to an emergency treatment for Patricia.

 

"Likewise, there was no evidence presented as to whether anyone else, including the families of Luc and Patricia, would take responsibility for the children. To the contrary, Patricia said in an affidavit on rehearing that extended family members and friends (Jehovah's Witnesses saying so for purposes of this lawsuit) were willing to assist in raising the children in the event of Patricia's death.

"Moreover, we do not know if Luc or any other interested party was given the opportunity to address these issues. According to the parties' stipulation, neither Luc nor any other family members attended the emergency hearing, and the record contains no evidence that notice of the hearing was provided. ...

 

"We conclude that the district court erred in holding that sufficient evidence was presented to satisfy the heavy burden required to override the patient's constitutional right to refuse medical treatment. The State alone bore that burden, which the hospital, standing in the State's shoes, did not carry.

"Moreover, the district court erred by suggesting that absent firsthand proof, the law should presume abandonment under these circumstances. To the contrary, the law presumes that when one parent is no longer able to care for the couple's children, the other parent will do so. The district court's decision effectively presumed that Luc had abandoned his children when he separated from his wife. That presumption is unacceptable. The state cannot disparage a person's parental rights nor excuse a person's parental responsibilities based on martial status alone. ..

 

"Likewise, although not intended by the district court, its rationale could be read by some to perpetuate the damaging stereotype that a mother's role is one of caregiver, and the father's role is that of an apathetic, irresponsible, or unfit parent. ... The law has evolved to move away from inappropriate gender-based distinctions. ... We do not want the district court's rationale misinterpreted to reinforce these outdated ideas in a manner that effectively denies a woman her constitutional right to refuse medical treatment as guaranteed by ... the Florida Constitution. Such an interpretation would also undermine the principle of shared parental responsibility, to which this state adheres. ...

******************

David Garcia was suffering from excessive blood loss, and would not survive without transfusions before, during, and after all the many surgeries his severe injuries would eventually require. David Garcia's parents and siblings, who were NOT Jehovah's Witnesses, were outraged. They immediately obtained legal counsel and petitioned the local court for guardianship and authorization to consent to all medical care necessary to save David's life. At the hearing, Jane Garcia and regular south Florida JW Attorney, William Hoey, did their best to fight against blood transfusions. David's family testified that David was NOT a Jehovah's Witness, had never joined the Jehovah's Witnesses, and had told them that he only attended WatchTower meetings to keep his recent JW Wife happy. Doing such nearly cost David Garcia his life. The court granted Garcia's Catholic father guardianship -- with power to authorize all necessary medical care. Outcome unknown.Notably, one of the arguments presented to this wise judge was that David Garcia supported an 8 year-old daughter from a prior relationaship.

******************

In June 1995, Bonita Perkins finally got the jury trial that she wanted so badly. Even though this was a heartland jury, and not a left-coast or right-coast jury, it still took the Akron, Ohio jurors 90 minutes for their common sense to kick in and tell Bonita Perkins that she should go home thankful that she was still alive. (Researchers: see list of Sheriff Sales in Summit County, Ohio, ie, 2006 and 2014.)

******************

"I am one of Jehovah's Witnesses. On the basis of my firmly held religious convictions, see Acts 15:28, 29, and on the basis of my desire to avoid the numerous hazards and complications of blood, I absolutely, unequivocally and resolutely refuse homologous blood (another person's blood) and stored autologous blood (my own stored blood) under any and all circumstances, no matter what my medical condition. This means no whole blood, no red cells, no white cells, no platelets, and no blood plasma no matter what the consequences. Even if health-care providers (doctors, nurses, etc.) believe that only blood transfusion therapy will preserve my life or health, I do not want it. Family, relatives or friends may disagree with my religious beliefs and with my wishes expressed herein. However, their disagreement is legally and ethically irrelevant because it is my subjective choice that controls. Any such disagreement should in no way be construed as creating ambiguity or doubt about the strength or substance of my wishes."

"Appellant has raised both constitutional and common law challenges to the court's order. We note that courts should avoid deciding issues on constitutional grounds where the issue may be resolved on non-constitutional grounds. ...

 

"The right to refuse medical treatment is deeply rooted in our common law. ...

 

"The right to control the integrity of one's body spawned the doctrine of informed consent. ... This doctrine demands that if the patient is mentally and physically able to consult about his or her condition, the patient's informed consent is a prerequisite to treatment. ... ...

 

"While this right is fundamental to our concept of personal autonomy, it may be outweighed by any one of four state interests: 1) protection of third parties; 2) protection of the ethical integrity of the medical profession; 3) preservation of life; and 4) prevention of suicide. ...

 

"When evaluating the state's interest in protecting third parties, 'the primary focus is on whether the patient has dependents who would be left emotionally and financially bereft were the patient to refuse medical treatment.' Fiori, ... [No further comment here, but see below.] ... ...

 

"The right of a Jehovah's Witness to refuse a blood transfusion was examined previously in Dorone, ...

 

"The instant case is distinguishable from Dorone. Here, Maria clearly indicated her resolute refusal of blood transfusions. Her DPA was unequivocal in its pointed refusal of a blood transfusion under any circumstance. Her [standardized WatchTower prepared] statement that, 'even if health-care providers ... believe that only blood transfusion therapy will preserve my life or health, I do not want it' indicates her resolve to refuse blood under life threatening conditions. ... Maria also clearly indicated that her refusal of blood was an unwavering religious conviction. The fact that Maria presented the hospital staff with copies of her DPA minutes before her operation demonstrates her continued affirmation to abstain from blood. Maria's appointment of Appellant as her personal health care agent was another clear demonstration that her desire to abstain from blood be given a voice when she could not provide one.

"There is also evidence of Maria's desire to refuse blood, independent of her DPA. The Center had performed liver transplants for Jehovah's Witnesses without the transfusion of blood. Maria specifically chose the Center to perform her operation, as it could accommodate her religious beliefs. Maria also discussed her beliefs with her husband and family prior to the liver transplant operation. Finally, she verbalized her refusal of a transfusion to the hospital staff prior to her operation. Under these facts, Maria clearly expressed her desire not to receive blood transfusion therapy. This refusal of medical treatment is protected by Pennsylvania common law. ...

"Moreover, after a careful review of the record, there is no evidence to suggest that any state interest in this case was compelling enough to override Maria's refusal of blood. ... There is no evidence that the state's interest in protecting third parties is implicated here. [INCREDIBLE???] The transcript of the hearing to appoint Lionel Duran emergency guardian is devoid of testimony regarding the emotional and financial relationship between Maria and her two teenage children. ... Therefore, we will not manufacture evidence and conjecture in a strained attempt to apply this exception to the instant facts." [Therefore, why create "law" in the meantime?] ... ...

"When a patient has executed a DPA and named a personal representative, that choice is given paramount importance. ...

 

"In the instant case, Maria executed a valid DPA contemplating an emergency situation that might require a blood transfusion. After deliberation, Maria recorded her emphatic refusal of blood transfusion therapy under all circumstances. Maria also appointed her own health care agent to ensure that this order was obeyed. ... Therefore, Maria was not in need of a guardian. ... When the very situation contemplated by Maria's DPA arose, the court should have given effect to Maria's unequivocal directions. ... Moreover, no one alleged that Appellant had acted contrary to Maria's wishes or best interest. ... Therefore, the appointment of Lionel Duran as guardian for the express purpose of consenting to a blood transfusion contradicted Maria's clear and unequivocal directions. ... To hold differently would devitalize personal health care directives and devalue the common law right to personal autonomy. Accordingly, we agree with Appellant that the trial court erred when it appointed Lionel Duran as Maria's emergency guardian."

"... Maria's DPA named Appellant as her personal representative for health care. ... Maria informed the doctors and hospital staff of her DPA and provided copies of this document prior to surgery. She also discussed her DPA with family members before her treatment began. During the course of Maria's treatment, doctors and staff at the Center sought Appellant's consent to a kidney dialysis, a biopsy and the second liver transplant. ... When, however, a blood transfusion in contravention of Maria's DPA was required, no one looked to Appellant for consent, or informed him of a hearing to displace his guardianship. Lionel Duran and the hospital staff knew where to find Appellant in an emergency situation, as they had on the three prior emergency consent situations. Thus, it was reasonable under these circumstances to afford Appellant notice of the hearing in question. ... Accordingly, Appellant was entitled to notice of the hearing.

"It is a difficult thing to decline potentially life-saving treatment for a loved one, rendered mute by her condition, on the basis of her devotion to religious beliefs. Nevertheless, absent evidence of overarching state interests, the patient's clear and unequivocal wishes should generally be respected.

"Based upon the foregoing analysis, we conclude that this appeal is cognizable despite its technical mootness. Additionally, we hold that under the circumstances of this case, Maria's self-determination to refuse blood transfusion therapy is protected by Pennsylvania common law. The trial court abrogated Maria's right when it appointed Lionel Duran as emergency guardian, as the evidence was insufficient to implicate state interests. Finally, we conclude that Appellant, as Maria's named guardian, was entitled to notice of the hearing to appoint an emergency guardian. Thus, we reverse the trial court's order."

******************

In December 2006, a Jehovah's Witness Ukrainian immigrant named Lina Borshchov, age 27, of Beacon, New York, was involved in a serious automobile accident in which the other "at-fault" elderly driver was killed. Borshchov's own Audi A4 was mangled, but its airbags deployed, and Lina Borshchov was also wearing her seatbelt. Because Lina Borshchov was six months pregnant, and she was experiencing stomach pains, she was airlifted to Westchester Medical Center in Valhalla, New York. There, doctors performed an emergency cesarean section and successfully delivered her baby daughter. Lina Borshchov was allowed to die from excessive loss of blood shortly after the cesarean delivery. Lina Borshchov's newborn daughter also died about three hours later. It appears that the doctors and administrators at Westchester Medical Center in Valhalla, New York, may have allowed both Lina Borshchov and her newborn daughter to die without attempting court intervention.

Surprisingly, neither the hospital, nor her husband, Aleksey Borshchov, age 27, nor several interviewed JW friends would provide specifics as to why Lina or her newborn baby had died. First responders at the scene of the accident were shocked when they heard of the two deaths. Lina Borshchov had experienced no life-threatening injuries. The released autopsy confirmed suspicions that Lina Borshchov had died from excessive blood loss from the cesarean surgery. Nothing was said as to the cause of death of the three month premature infant, but preemies frequently require blood transfusions for a wide variety of reasons. Lina Borschchov's obvious decision to die, rather than accept a life-saving blood transfusion, also left a 4-year-old son, Nikita Borshchov, motherless.

******************

DARREN HOLSTON v. SHERIEF HOLSTON and ENGLEWOOD HOSPITAL AND MEDICAL CENTER is an excellent "read between the lines" 2008-09 New Jersey case, in which WatchTower attorneys Paul D. Polidoro and Philip Brumley intervened UNSUCCESSFULLY!

Darren Holston's wife, Sherief Holston, was reared as a Jehovah's Witness. On August 5, 2008, the Holston's went to Englewood Hospital and Medical Center in order for Sherief Holston to give birth to her third child. Sherief Holston executed an advance directive that provided that Sherief did not want a blood transfusion under any circumstance, even if a physician determined it would save her life. Sharief gave birth that day without the need for a blood transfusion.

On August 6, 2008, Sherief underwent a post-partum tubal ligation at the Medical Center, following which she suffered severe internal bleeding and had to be placed in a medically-induced coma to help keep her alive.

On August 12, 2008, Darren Holston filed an emergency verified complaint in local court seeking to compel the Medical Center to administer a blood transfusion to Sherief. Following a hearing that same day, Judge Contillo determined that the directive did not apply to Sherief's tubal ligation; appointed Darren as Sherief's special medical guardian; and permitted the special medical guardian to order any medically necessary blood transfusions.

UNIDENTIFIED PARTIES challenged that judge's ruling, and appealed. The NJ appellate court agreed with theUNIDENTIFIED PARTIES, and granted an emergency stay of the original court order. However, later that same evening, theSupreme Court of New Jersey reversed and reinstated the original trial order. Sherief received a blood transfusion; emerged from the coma; and was discharged from the hospital in good health.

The NJ appellate court remanded the matter back to the trial judge, who dismissed the case as now moot. Englewood Hospital and Medical Center wanted the trial court to rule on the original issues, and proceeded to appeal the "mootness" ruling. On appeal, the Hospital was joined by the WatchTower Society in requesting that the original issues be addressed. The NJ appellate court affirmed the trial judge's decision and reasoning.