¶ 52. {concurring). The medical determination of the existence of a persistent vegetative state is, literally, one of life or death. It is important the doctors get it right. It is equally important that we get the law right.
*584¶ 53. The majority and the concurring opinions, and this writer, agree that if a person is not in a persistent vegetative state, medical treatment cannot be withdrawn.
¶ 54. We further agree that if Ms. F. is diagnosed again and the doctors determine that she meets the current medical definition of persistent vegetative state, medical treatment may be withdrawn even if her physical condition has not changed from the time of the diagnosis rendered in this case.
¶ 55. But then we part company.
¶ 56. Regrettably, the majority and the concurring opinions fail to establish a significant safeguard designed to ensure the accuracy of that determination. They would allow any person with a medical degree to make the critical diagnosis that drives the ultimate decision to withdraw or continue life sustaining medical treatment. Furthermore, they insist on the presence of three doctors only when the decision is to withdraw life sustaining medical support. Respectfully, I cannot join such a decision
¶ 57. I would direct as a matter of law. that anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state in order to ascertain whether life sustaining medical treatment can be withdrawn, three conditions must be met. First, the diagnosis must be made by the attending physician and two independent doctors. Second, at least one of the independent doctors must be a specialist in the medical field relevant to the patient's condition.1 Third, I join with the concurring *585opinion that the doctors must rely on current medical authority generally accepted in that specialty. Inasmuch as Alzheimer's is a neurological disease, I would direct that in the case of Ms. F. one of the independent doctors be a neurologist relying on current medical authority accepted in the field of neurological medicine.
HH
¶ 58. The majority and concurring opinions fail to require that one of the attending physicians be a specialist in the medical field relevant to the patient's condition.
¶ 59. This case amply demonstrates the need for such protection. Neither of the two physicians who examined Ms. F. were neurologists. The only doctor who was asked his opinion on whether Ms. F. was in a persistent vegetative testified she was not. However, he testified that his diagnosis was based on a January 1989 article in the medical journal, Neurology. The authority he relied on was arguably outdated.
¶ 60. The entire 1989 Statement upon which the doctor relied covered two pages in that journal. In 1991, the Multi-Society Task Force on Persistent Vege*586tative State was created.2 The Task Force's 1994 Statement, a far more exhaustive treatment of persistent vegetative state, summarizes current knowledge of the medical aspects of persistent vegetative state.3 The 1994 Statement explains, refines and substantially augments the 1989 definition of persistent vegetative state applied by Ms. F.'s doctor in his diagnosis.
¶ 61. As more fully discussed below, the 1994 Statement appears to call into serious question the accuracy of the diagnosis made by Dr. Erickson.
¶ 62. Unless this court directs that at least one of the doctors be a specialist current in his or her field, there is nothing to stop this from happening again. The potential for serious error, as possibly occurred here where Ms. F. was diagnosed as not being in a persistent vegetative state, is patent. The potential for serious *587error in cases involving a patient diagnosed as being in a persistent vegetative is equally apparent.
¶ 63. In retrospect, L.W. should have insisted upon, rather than recommended, a specialist in the field. It did not, and the majority and concurring opinions continue in that error. In a justifiable desire to leave these decisions as much as reasonably possible to family members and their physicians and not the courts, the majority and concurring opinions abdicate too much. They are willing to allow any person with a medical degree to diagnose the presence or absence of a persistent vegetative state.
¶ 64. I am not.
¶ 65. A diagnosis of the presence or absence of a persistent vegetative state drives the ultimate decision to withdraw or continue life sustaining medical treatment. It is far too important and critical a decision to leave in the hands of anybody with a medical degree. A level of expertise beyond a medical degree should be demanded.
¶ 66. Other states and commentators have recognized this problem. One legal scholar cites the risk of an erroneous medical diagnosis as one of the three major factors that contribute to the risk of an improper decision to continue or to withhold life sustaining medical treatment. Linda C. Fentiman, Privacy and Personhood Revisited: A New Framework for Substitute Decision Making for the Incompetent, Incurably Ill Adult, 57 Geo. Wash. L. Rev. 801, 808 (March 1989). Professor Fentiman notes that a number of courts have implicitly recognized this possibility of a mistaken diagnosis. Id. at 809.
¶ 67. The New Jersey Supreme Court, which set the stage for decision making analysis in these cases with the Quinlan decision, expressly recognized the *588risk of an erroneous diagnosis. In re Jobes, 529 A.2d 434, 447-448 (N.J. 1987). To guard against the risk of such an error and to ensure the preservation of medical ethics, the surrogate decision maker must secure statements from "at least two independent physicians knowledgeable in neurology that the patient is in a persistent vegetative state." Id. at 448.
¶ 68. Acknowledging that the prognosis determination is a medical one, the Washington Supreme Court held that even this prong of the life-sustaining medical treatment decision making process must incorporate safeguards to protect patients from an inaccurate diagnosis. In re Colyer, 660 P.2d 738, 749 (1983) (requiring confirmation of the attending physician's diagnosis by a prognosis board consisting of "no fewer than two physicians with qualifications relevant to the patient's condition"). Accord In re Moorhouse, 593 A.2d 1256 (N.J. App. 1991) (requiring that the attending physician's diagnosis be confirmed by the hospital's prognosis committee and at least two independent physicians knowledgeable in neurology); John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921, 926 (Fla. 1984) (requiring certification that patient is in a permanent vegetative state by the primary treating physician and concurrence in the certification by "at least two other physicians with specialties relevant to the patient's condition.").
¶ 69. The concurring opinion recognizes to some extent these problems by stating that "It is similarly important that physicians who are called upon to make the apparently difficult diagnosis of a persistent vegetative state be expert in this area of medicine." Concurrence at 581.
¶ 70. It is more than "important." It is critical. I would not recommend, I would direct. The absence of *589this safeguard in the majority and concurring opinions charts a perilous course.
¶ 71. Dr. Erickson, who is not a neurologist, relying on arguably outdated medical authority, diagnosed Ms. F. and testified that she approximates but does not meet the strict definition of persistent vegetative state. If he was in error, important constitutional rights were denied Ms. F. This record raises serious concern in my mind that he may have been in error. At the very least, his testimony did not indicate a knowledge of the 1994 Statement. A neurologist might well have been aware. It might have changed the diagnosis.
¶ 72. Nevertheless, if there was an error made in the diagnosis of Ms. F., or others like her, it was an error made on the side of life. It can be corrected. Not so in the case of a diagnosis of a persistent vegetative state of a person who is in fact not in a persistent vegetative state. Once medical treatment is withdrawn, life will cease: misdiagnosis in that event cannot be corrected. Surely some minimum safeguards speaking to the expertise and knowledge of the doctors should be present. The majority requires nothing other than a medical degree.
¶ 73. I would require more.
HH J — 4
¶ 74. Unfortunately, the majority and concurring opinions require three doctors only when life sustaining support is to be withdrawn. They are silent as to the threshold stage in any case involving these issues: the decision of the guardian to seek a diagnosis.
¶ 75. I would require three doctors anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state. The importance of that requirement is *590demonstrated by this case. Once the attending physician determined that Ms. F. was close but not actually in a persistent vegetative state, the inquiry was ended. But if Ms. F. was incorrectly diagnosed, as I believe is suggested in this record, important constitutional rights were denied her.
¶ 76. We require three doctors when the decision to withdraw life support is made. Is it not equally important to require the same number of doctors at the threshold inquiry which, in a case like this, is determinative of constitutional rights?
¶ 77. I would require that once the guardian determines that the question of withdrawal of life sustaining medical support is presented, the attending physician and two independent doctors must be consulted.
h — I HH hH
¶ 78. Fortunately, the concurring opinion recognizes the importance of using current medical authority, and directs that it be used. Concurrence at 580-81 ("If the guardian chooses to seek further diagnoses and if the doctors, applying current medical knowledge, determine that Ms. F. is at the time of the examination in a persistent vegetative state, the guardian may consent to withdrawal of nutrition or the guardian may decide not to withdraw nutrition."(Emphasis added.)) Id. at 581 ("Qualified physicians make the diagnosis of a persistent vegetative state or its absence, using scientifically current information and information and standards." (Emphasis added.)) I join that part of the concurring opinion. Accordingly, that requirement has the support of a majority of this court.
*591¶ 79. The importance of using current medical authority is amply demonstrated in this record. Dr. Erickson, relying on a January, 1989, journal of neurology, testified that the standards expressed therein required "that there be no behavioral response whatsoever over an extended period of time." (Emphasis added.) Further, he testified that those 1989 standards required there be "no voluntary action or behavior of any kind [present]." (Emphasis added.) Because there was "some minimal response to stimulation from her surroundings" the doctor concluded Ms. F. "approximates but does not entirely meet that definition of the persistent vegetative state."
¶ 80. This testimony was crucial. No one disputed the doctor's finding that Ms. F. was not in a persistent vegetative state. The circuit court had no choice but to agree. But current medical authority, the 1994 Statement, contradicts or at the very least calls into serious question Dr. Erickson's conclusion. It does not require "no behavioral response whatsoever" for the presence of a persistent vegetative state; rather, it requires no evidence of "sustained" behavior of that kind.
¶ 81. In order to more fully understand why the 1994 Statement seriously undercuts the doctor's conclusion, it is necessary to first understand more completely the condition of Ms. F. with respect to her response to stimulation.4
*592¶ 82. Although she appears to respond to voices or noises in her room, she makes no meaningful response to questions or commands. R:19 at 24-25.5 Several medical professionals who had regular contact with Ms. F. described her condition. Licensed practical nurse, Patricia Rohmeyer (Rohmeyer), has had regular contact with Ms. F. since 1986. R:19 at 6. Rohmeyer testified that she "[d]oes not respond most of the time when you speak to her, either by blinking her eyes or opening her eyes." R:19 at 7. Edna F. does not respond when Rohmeyer places a finger in her hand and asks her to squeeze the finger. R:19 at 8. When asked whether Ms. F. looked toward a person who called her name, Rohmeyer responded that "[s]he wasn't able to today." R:19 at 8. She described Ms. F.'s condition as "progressive through the years." R:19 at 8.
¶ 83. Spahn described her sister's condition to the circuit court: "Sometimes I can get her to look at me... .Sometimes I can get her to look. Not very often. The last couple times I have been in I've gotten — I did get her to open her eyes, but not to look at me." R:19 at 75-76.
¶ 84. Even more telling was the testimony of Dr. Erickson. He described Ms. F.'s condition on December 19,1994:
She did respond to voice by opening her eyes, but did not respond to command. . . .She opened her eyes and looked, but not in any meaningful way at me. She simply appeared to respond to a voice or to a noise in the room. I discussed with the nursing staff at that time, although I did not notice that she would occasionally track movement in the room. The level of alertness that I found at that time in *593discussion with the nursing staff was consistent with what they had observed on a day to day basis. . . .Periodically she would follow movement in the room, or she may respond to tactile stimulation or voice by opening her eyes. But there was no meaningful response to command or attempts at communication.
R:19 at 24-25.
¶ 85. The record, reveals that upon application of mildly noxious stimuli, Ms. F. might open her eyes or grimace but, her doctors say, she fails to make a consistent effort to withdraw from or to remove the stimulation. R: 19 at 26, 65.
¶ 86. Dr. Przyblinski described Ms. F.'s response to mildly noxious stimuli: "When I gave her tactile stimulation which I considered mildly noxious, either pinching her for arm [sic] or her leg or rubbing her sternum, she grimaced and she did make a moaning sound. She did not make any attempt to push my hand away or pull her arm or leg away, so I didn't see anything that I would see as purposeful movement with that kind of stimulation." R:19 at 63. He further states that she is no longer aware of, nor can she interact in any purposeful manner, with her surroundings, or the people who are attending to her. R:19 at 64-65 (emphasis added).
¶ 87. Dr. Erickson has never observed a consistent effort by Ms. F. to withdraw from noxious stimuli. R:19 at 25. When he touches her face, or presses gently on her sternum, she might make a minimal response, i.e., a movement or facial expression, acknowledging the stimulation, but he has observed no consistent effort to withdraw or to remove the stimuli. R:19 at 26. When doctors subject her to noxious stimuli, Ms. F.'s vital signs remain stable. R:19 at 34.
*594¶ 88. The 1994 Statement lists the following criteria according to which the vegetative state can be diagnosed:
(1) no evidence of awareness of self or environment and an inability to interact with others; (2) no evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli; (3) no evidence of language comprehension or expression; (4) intermittent wakefulness manifested by the presence of sleep-wake cycles; (5) sufficiently preserved hypothalamic and brain-stem autonomic functions to permit survival with medical and nursing care; (6) bowel and bladder incontinence; and (7) variably preserved cranial-nerve reflexes (pupillary, oculocephalic, corneal, vestibulo-ocular, and gag) and spinal reflexes.
¶ 89. Dr. Erickson testified that a persistent vegetative state required "no behavioral response whatsoever." As seen from the above 1994 Statement, that appears to be an incorrect conclusion: "no evidence of sustained, reproducible, or voluntary behavioral responses to. . .stimuli." (Emphasis added.) The 1994 Statement further cautions that motor or eye movements and facial expressions in response to various stimuli also occur in persons in an irreversible vegetative state. These movements and expressions occur in stereotyped patterns that indicate reflexive responses integrated at deep subcortical levels, and are not indicative of learned voluntary acts. The presence of these responses is consistent with complete unawareness. The 1989 Statement does not discuss the subtle distinctions between the visual pursuit of a person who is aware of the surroundings and a person in a persistent vegetative state.
*595¶ 90. Given that Dr. Erickson believed the existence of a persistent vegetative state required no behavioral response whatsoever, given that he testified Ms. F.'s responses were "minimal," and given the above quoted texts from the 1994 Statement, I conclude a serious question exists as to the accuracy of his diagnosis. If so, important constitutional rights have been denied Ms. F. The use of current medical authority might well have changed his diagnosis. Fortunately, that is now the mandate of this court.
¶ 91. In summation, I would hold that anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state to ascertain whether life sustaining medical treatment may be withdrawn, three conditions must be met: 1) the diagnosis must be made by the attending physician together with two independent doctors; 2) at least one of the independent doctors must be a specialist in the medical field relevant to the patient's condition; and, 3) the diagnosis must rely on current medical authority generally accepted in that specialty.
¶ 92. If indeed Ms. F.'s original diagnosis was incorrect, needless suffering has been endured by her family and loved ones as they have been forced to sit helplessly by watching this woman they love continue an emptiness that only the most literal would call life. Had the procedures I recommend been utilized, this might have been avoided. Fortunately, if error has been made it can be corrected. All members of this court agree that she can be re-diagnosed. If her attending physician and two independent doctors agree that she meets the current medical definition of persistent vegetative state, and no one objects, medical treatment may be withdrawn without further recourse to the *596courts. This is so even if her physical condition has not changed from the time of the original diagnosis rendered in this case.
¶ 93. Others may not be as fortunate.
¶ 94. For the above stated reasons, I respectfully concur.6
Although these two issues were neither briefed nor argued by the parties, the posture in which this case comes to us does raise them. It is obvious from this record that all parties agreed to a trial and appellate strategy of attempting to extend L. W.. *585Thus, none of the original parties were adversarial to each other, and none of them briefed nor argued these issues. From their perspective, it was unnecessary. Nonetheless, I would reach and decide them. We have on occasion in the past ordered the parties to brief issues not presented in the briefs or arguments. We have, as we did in this very case, appointed counsel to advance opposing positions. I would support similar action in this case. The nature of these issues make it highly unlikely that this court will see them again for years, if ever.
The 1994 Statement, Medical Aspects of the Persistent Vegetative State, Parts I and II, 330 N.Engl. J. Med. (May 26, 1994), was approved by the executive committee of each of the following medical societies: the American Academy of Neurology, the Child Neurology Society, the American Neurological Association, the American Association of Neurological Surgeons, and the American Academy of Pediatrics. Two representatives from each of these societies were appointed to the Task Force, and an advisory panel of consultants was selected from the related fields of medicine, ethics, and law.
The 1994 Statement speaks to the "vegetative state," distinguishing between a "persistent vegetative state" and a "permanent vegetative state." It refers to the persistent vegetative state as a diagnosis, the permanent vegetative state as a prognosis, i.e., an irreversible persistent vegetative state. L.W. used the term persistent vegetative state to refer to an irreversible condition. Because the majority and concurring opinions continue to use the term "persistent" to categorize the irreversible condition, I do likewise.
I agree with the concurring opinion that the majority opinion does not convey an accurate picture of Ms. F.'s condition. The facts recited in the concurring opinion together with the facts stated herein convey an accurate portrayal. In addition, I note that Ms. F. has been in this condition since 1993, and her doctors testify she will not improve, she will only get worse.
References are to pages and documents in the record.
I also agree with the concurring opinion with respect to its discussion of what L. W. does and does not stand for, specifically that the provision of nutrition and hydration by artificial means are forms of medical treatment in Wisconsin, and that the substituted judgment test has not been rejected in Wisconsin in all circumstances.