In re A.C.

• Author: Bourke, Leon H.
• Position: Substituted judgment for incompetent pregnant patient

HELD: If a pregnant patient is incompetent or otherwise unable

to give an informed consent to medical treatment, then her

decision must be ascertained through substituted judgment. The

patient's wishes, once they are ascertained, must be followed in

"virtually all cases," unless there are "truly extraordinary or

compelling reasons to override them."

A.C. was first diagnosed with cancer at thirteen years of age and underwent various treatments in the ensuing years. In re A.C., 573 A.2d 1235, 1238 (D.C. 1990). A.C., during a period of remission, married at twenty-seven and soon after became pregnant. Id. at 1238. Because of her medical histroy, in the fifteenth week of pregnancy she was referred to the high-risk pregnancy clinic at George Washington University Hospital. Id.

On June 9, 1987, when A.C. was about twenty-five weeks pregnant, she went to the hospital for a regular checkup. Since she was experiencing back pain and shortness of breath, an X ray was taken. Id. The X ray revealed an inoperable tumor, and on June 11, 1987, she was admitted to the hospital. Id. The next day her condition seemed to have improved, and she was asked if she wanted the baby, to which she responded positively. Id.

Her condition deteriorated rapidly, and on June 15, she was informed by her physicians that her illness was terminal. Id. She agreed to palliative treatment designed to extend her life until at least the twenty-eighth week, giving the baby a better chance to survive. Id. When she was asked again if she still wanted to have the baby, A.C. was somewhat equivocal, saying "something to the effect of: |I don't know, I think so.'" Id. at 1239.

The next morning the trial court convened a hearing at the hospital in response to the hospital's request for a declaratory judgment. The court heard testimony indicating that at twenty-six and a half weeks the fetus was viable, i.e., capable of sustained life outside the mother. Id. Various doctors familiar with A.C.'s condition gave conflicting testimony concerning the advisability of a caesarean section.

The trial court made the following findings of fact: (1) A.C. would probably die, according to uncontroverted medical testimony, "within the next twenty-four to forty-eight hours"; (2) A.C. was "pregnant with a twenty-six and a half week viable fetus, who, based upon uncontroverted medical testimony, has approximately a fifty to sixty percent chance to survive if a caesarean section is performed as soon as possible"; (3) because the fetus was viable, "the state has [an] important and legitimate interest in protecting the potentiality of human life"; and (4) there had been some testimony that the operation "may very well hasten the death of [A.C.]," but that there has also been testimony that delay would greatly increase the risk to the fetus and that "the prognosis is not great for the fetus to be delivered post-mortem. . . ." Id. at 1240. Most significantly, the court found that "it does not clearly know what [A.C.'s] present views are with respect to the issue of whether or not the child should live or die." Id.

Having made these findings of fact and expressly relying on In re Maydun, 114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct. 1986), the...