In re Guardianship of Browning.

• Author: Bourke, Leon H.
• Position: Whether or not a guardian can terminate life support systems - Florida

HELD: A guardian of a patient who is incompetent but not in a

permanent vegetative state, and who suffers from an incurable

but not necessarily terminal condition, cannot terminate life-sustaining

treatment and feeding by tube.

Eighty-nine year old Estelle Browning suffered a massive stroke on November 9, 1989, causing a large hemorrhage in the left side of her brain. In re Guardianship of Estelle M. Browning, 543 So. 2d 258, 261 (Fla. Dist. Ct. App. 1989). Damage to her brain was major, permanent, and irreversible, making it unclear if she was cognitively aware of physical conditions or pain. Id. at 261-62. A gastrostomy tube was inserted on November 20, 1986; but in May 1988 the tube became dislodged, and a nasogastric tube was inserted as a substitute feeding device. Id. at 261-62.

On September 2, 1988, Mrs. Browning's second cousin and appointed legal guardian, Mrs. Doris Herbert, filed a petition to terminate Mrs. Browning's artificial life support system. Id. at 262. The petition was based primarily on a living will that Mrs. Browning executed in 1985. Id. Relief was requested under the "Life Prolonging Procedures Act of Florida" (sections 765.01 to 765.15, Fla. Stat. (1987)). Id.

The trial court's evidentiary hearing focused on Mrs. Browning's desire to terminate food and fluids and the nature of Mrs. Browning's current medical condition. Id. The guardian argued that Mrs. Browning's desire to terminate food and fluids was evidenced in her executed living will, where she had placed an X in the box next to a testamentary statement indicating that food and fluids were not to be provided. Id. However, because the statement immediately followed and was in the same paragraph as the statutory standard language authorizing withdrawal of life-sustaining procedures when "death is imminent," the trial court concluded that Mrs. Browning's death was not "imminent," measuring imminence under conditions in which sustenance was provided. Id. at 263-64. Given this statutory interpretation and application of the "Life Prolonging Procedures Act of Florida," together with the "limited" evidence concerning Mrs. Browning's medical condition (id. at 262), the guardian's petition was denied without prejudice to a renewed petition should Mrs. Browning's condition change.

The District Court of Appeal upheld the trial court's ruling regarding the application of the life prolonging procedures statute. Browning, 543 So. 2d at 261, 264-65. However, the court expanded the analysis to include whether the requested remedy could be authorized by an alternative statute, common law, or the state constitution. The court concluded that under article I, section 23, of the Florida constitution, a remedy did exist. Id. at 261, 265-67. The court first focused on the Florida statute applied by the trial court. Id. at 264-65. The court recognized that under the statute a right to decline life prolonging procedures did exist, but two major statutory issues prevented the court from allowing the remedy to be applied in this case. The issues were (1) whether a nasogastric tube was a "life prolonging procedure" under the act and (2) whether Mrs. Browning was suffering from a terminal...