McConnell v. Beverly Enterprises-Connecticut, Inc.

Arthur H. Healey, J.,

concurring. Although I agree with the ultimate result of no error, I am unable to agree with the analysis of the majority in reaching that result. It seems to me that crucial to the majority is the distinction advanced between “artificial technology to assist nutrition and hydration, and normal procedures to assist in feeding,” and its characterization of a gastrostomy tube as a “life support system.” This so-called “middle ground” construction of the statutory scheme “that is consistent with the plaintiffs’ affirmative claims for relief,” while so consistent, involves a flawed process of statutory construction.

As I read the opinion, it recognizes that a gastrostomy tube is “beneficial medical treatment” because that term, by definition in General Statutes *712§ 19a-570 (2), includes “artificial technology to sustain life.” It further recognizes that a gastrostomy tube qualifies as a “life support system,” as that term is defined in § 19a-570 (1), in that the majority states that Mrs. McConnell, in exercising her right of self-determination, “merely seeks to be free of extraordinary mechanical devices and to allow nature to take its course.” (Emphasis added.) In my view, the majority decides that a gastrostomy tube, despite the exclusion of nutrition and hydration from the definition of “life support system” in the statutory scheme, and despite the majority’s apparently conclusory position that such a tube is a “mechanical device” under the statute, nevertheless, does come within the purview of the statutory scheme. This statutory analysis I cannot accept.

I believe that a gastrostomy tube cannot, explicitly or implicitly, be regarded as a “life support system” under the statutory scheme. Rather, the use of a gastrostomy tube must be, and can be, decided in this case under the common law because its use does not fall within the statutory scheme.

The majority acknowledges a common law right of self-determination. It also suggests, without finding the necessity to decide, that, after the present statutory scheme was enacted, common law rights may be “residual . . . if any such rights remain.” Elsewhere, it suggests that the statutory scheme “may implement” an individual’s common law rights as well as their constitutional rights. I believe that such a common law right of self-determination exists. I agree with the majority to the extent that it acknowledges the existence of such a common law right. See, e.g., Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734 (1891); Schmeltz v. Tracy, 119 Conn. 492, 495, 177 A. 520 (1935).

*713In arguing that the result reached by the majority in this case on statutory grounds should rather be reached under the common law, I believe that the statutory scheme did not entirely displace the common law. “ ‘It is an established rule of statutory construction that statutes are not readily interpreted as abrogating common-law rights.’ State v. Assuntino, 173 Conn. 104, 106, 376 A.2d 1091 (1977). It is also a rule of statutory construction that statutes in derogation of the common law are to be strictly construed. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981); Blue Cross & Blue Shield of Connecticut, Inc. v. Mike, 184 Conn. 352, 361, 439 A.2d 1026 (1981); State v. Beauton, 170 Conn. 234, 241, 365 A.2d 1105 (1976). ‘ “No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 [1880].’ Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).” State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986).

The exclusion of “the provision of nutrition and hydration” from the definition of “life support system” strongly suggests a legislative intent to address only the withdrawal of “any mechanical or electronic device” from a terminal patient. The exclusion does not suggest an intent to displace the common law right to self-determination of one’s bodily integrity as it pertains to the withdrawal of other medical treatment, including extraordinary means of nutrition and hydration. See, e.g., Union Pacific Railway Co. v. Botsford, supra; Schmeltz v. Tracy, supra. The language in § 19a-570 (1), “excluding the provision of nutrition and hydration,” is not language that clearly evinces a legislative intent to displace the common law right of self-determination as it applies to types of medical treatment other than “life support system[s].” In addition, *714it is a reasonable inference that the legislature did not intend wholly to displace the common law when one examines the last sentence of General Statutes § 19a-571 in the light of the entire statutory scheme. That sentence requires the provision of “beneficial medical treatment and nutrition and hydration” where the attending physician “does not deem the patient to be in a terminal condition . . . . ” A reasonable inference from that sentence is that where the patient is in a terminal condition, as is McConnell, then beneficial medical treatment and nutrition and hydration need not be provided.1

I agree with the majority that the gastrostomy tube constitutes beneficial medical treatment. I say this having already noted the distinction that the majority makes between “artificial technology” and “normal procedures” to assist the process of nutrition and hydration. I disagree, however, with the majority’s reasoning where it maintains that “artificial technology to assist nutrition and hydration,” i.e., beneficial medical treatment, is “a fortiori included within the definition of a ‘life support system.’. . .’’It seems to me that while a “life support system” is necessarily “beneficial medical treatment,” it does not follow that all “beneficial medical treatment” constitutes a “life support system” in this statutory scheme. Certain medical treatment may be “artificial technology to sustain life,” and thus be “beneficial medical treatment” under the statute, without qualifying as a “life support system” under the statute, which necessarily must be a “mechanical or electronic device.” In contrast, “any mechanical or electronic device” used to “assist or sup*715plement” bodily functions which “prolongs the dying process” must be considered “artificial technology to sustain life.” The majority never explains how a gastrostomy tube qualifies as a “mechanical or electronic device” and thus never explains how the gastrostomy tube can be considered a “life support system” in the statutory scheme.

I conclude that a gastrostomy tube cannot be characterized as a “mechanical or electronic device.” “The G-tube is a pliable silicone tube, about one and one-half feet in length with two openings at the top. Food enters the larger opening of the G-tube via plastic tubing, some two and one-half feet long, which in turn is connected to a plastic bag which hangs above the level of the patient (allowing the liquid food to flow from the bag by means of gravity into the G-tube).” Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 425-26, 497 N.E.2d 626 (1986). The gastrostomy tube, then, is not “of, relating to, or concerned with machinery”; N. Webster, Third International Dictionary; but merely is a system that operates by natural force—gravity. It cannot, therefore be considered a “life support system” under the statute because it is not a mechanical device.

Even assuming that there is no practical distinction between the removal of a respirator, a typical “life support system,” and a gastrostomy tube, which is implicit in the majority’s holding, the statute clearly recognizes a distinction for purposes of delineating the statute’s scope. For the reasons given above, the legislative intent was not wholly to displace the common law, but to preserve it by limiting the purview of the statute to the removal of “mechanical and electronic devices” from terminal patients.

Under the common law, McConnell has a right to refuse medical care in the form of extraordinary nutrition and hydration, here a gastrostomy tube. I agree *716that it has been established by clear and convincing evidence that McConnell’s expressed desires, when she was competent to exercise that common law right, were to refuse such extraordinary medical care under her current condition. In my view, therefore, the only remaining question is whether there is some compelling state interest which overrides her right to self-determination concerning her own body. I recognize that the common law right to refuse medical treatment is not absolute, and, in some cases, may yield to a compelling state interest. In doing so, I believe that each case is unique, as is each life, and must be determined upon the circumstances special to each case. In short, I see no rule capable of general application in such terminal cases.

Four compelling state interests appear to have been commonly identified by courts and commentators in such decisions: (1) the preservation of life; (2) the prevention of suicide; (3) the protection of innocent third parties; and (4) the maintenance of the ethical integrity of the medical profession. See, e.g., Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981); note, “In re Storar: The Right to Die and Incompetent Patients,” 43 U. Pitt. L. Rev. 1087, 1092 (1982). This, then, involves the duty of a court to balance McConnell’s right to refuse the use of the gastrostomy tube against these four state interests.

Some courts have considered the state’s interest in preserving life to be the most significant of these interests. See, e.g., Brophy v. New England Sinai Hospital, Inc., supra, 432; Matter of Conroy, supra, 349. Initially, it seems that with McConnell in an irreversible persistent vegetative state with no prospect of improvement, this interest of the state is, on balance, greatly diminished. Thus, the “life” she did not wish to live flickers on without the health or hope that the *717state properly seeks to guard. In this case, given her unchallenged wishes and her current circumstances, the state’s interest in protecting her life is not, I believe, weighty in the total mix of the state’s interests.

The state also has a special interest in preventing suicide. Suicide requires a specific intent to die which courts have found absent in persons who have refused extraordinary methods of medical care. See, e.g., Matter of Conroy, supra, 350-51; Matter of Eichner, 73 App. Div. 2d 431, 466-67, 426 N.Y.S.2d 517 (1980), modified in part, Matter of Storar, supra. Certainly, receiving nutrition and hydration by a gastrostomy tube is nutrition and hydration by extraordinary means. Rather than intending suicide, McConnell’s desire simply is not to receive nutrition and hydration in an extraordinary manner. Her death, when it occurs, therefore, will not be the result of suicide, i.e., self-inflicted, but will be the final result of her inability to receive nutrition and hydration by other than extraordinary means. See Delio v. Westchester County Medical Center, 129 App. Div. 2d 1, 24, 516 N.Y.S.2d 677 (1987); see also Matter of Peter by Johanning, 108 N. J. 365, 382, 529 A.2d 419 (1987); In re Requena, 213 N. J. Super. 475, 478-79, 517 A.2d 886, aff’d, 213 N.J. Super. 443, 517 A.2d 867 (1986) (decision to refuse extraordinary feeding is not “positive act to terminate life” but is only “acquiescence in the natural shutting down of a critical bodily function” and thus is not suicide).

The third state interest, protecting innocent third parties, is not present in this case. McConnell’s husband and children (all of whom are adults) obviously love, cherish and care for her. This wrenching tragedy has resulted in the awesome decision in which they have all joined. I do not consider this element of the state’s interest in overriding McConnell’s wishes any makeweight under all of the circumstances.

*718Finally, there is the state’s interest in maintaining the ethical integrity of the medical profession. One court has noted that “[t]his interest has largely been overcome or at least lessened by the prevailing medical ethical standards which do not require medical intervention at all costs.” Delio v. Westchester County Medical Center, supra, 25; see generally Brophy v. New England Sinai Hospital, Inc., supra, 439 n.38; Matter of Conroy, supra, 351. The medical evidence in this case is clearly on the side of careful, informed and ethically oriented judgment of McConnell’s condition and prognosis. In this case, I have difficulty believing that this state interest, singly or collectively, with my views of those interests in this case, serves to override McConnell’s wishes.

On balance, McConnell’s common law right to self-determination of her bodily integrity, as exercised through her clearly expressed desire not to have her terminal condition extended by extraordinary means, is wholly disproportionate and overbearing in comparison to any interests that the state may seek to further by prohibiting the withdrawal of her gastrostomy tube. In this case, such a prohibition would be unduly burdensome, particularly in light of the uncontroverted prognosis that McConnell has no hope of recovery to a cognitive and sapient life.

In summary, the removal of McConnell’s gastrostomy tube, in my opinion, cannot be governed by General Statutes §§ 19a-570 to 19a-575. The gastrostomy tube cannot be considered a “life support system” and therefore the provisions of the statutory scheme that address liability for the removal of “life support systems” are inapplicable. Rather, this case is governed by the common law right to self-determination of one’s bodily integrity. There being clear and convincing evidence that it is McConnell’s wish never to have her body and dignity invaded in order to provide extraordinary treatment that would *719maintain her in this tragic and terminal condition, and there being no state interests that outweigh the exercise of this right, McConnell’s gastrostomy tube must be removed.

Therefore, I concur in the result.

The legislative history, particularly the view expressed by two legislators that “in all cases hydration and nutrition shall be provided” is hardly sufficient to indicate the legislative intent to displace the common law, especially in view of the express language of the statute. See majority opinion, n. 11.