In the Supreme Court of Kentucky: Woods v. Commonwealth of Kentucky.

• Author: Bostrom, Barry A.

HELD: Withdrawal of life-support from a patient is prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawing life-support is in the patient's best interest.

**********

This appeal challenged the constitutionality of KRS 311.631, a provision of the Kentucky Living Will Directive Act, insofar as it permitted a judicially-appointed guardian or other surrogate to authorize the withholding or withdrawal of life-support from a patient who is either in a persistent vegetative state or permanently unconscious.

Matthew Woods was born on November 24, 1941; he died during the course of the proceedings on June 2, 1996. His intelligence quotient (I.Q.) was between 70 and 71 and, by judicial appointment, various state agencies had managed his affairs since May 12, 1970. On January 28, 1991, pursuant to a jury's verdict that he was partially disabled, KRS 387.570; KRS 387.580, the Fayette District Court appointed an agent of the Cabinet for Human Resources (CHR) as Woods's limited guardian with authority to make certain decisions for him, including consent to medical procedures. Woods lived in a state-approved group home, attended church, had a girlfriend, participated regularly in day-treatment programs, and was able to travel across town by bus to visit friends.

On April 18, 1995, Woods suffered cardiopulmonary arrest while being transported by a friend to the University of Kentucky Medical Center for treatment of a severe asthma attack. His friend detoured to the nearest hospital, St. Joseph Hospital, where medical personnel resuscitated Woods and connected him to a ventilator. Efforts to further revive him failed and he never regained consciousness. An electroencephalogram (EEG) examination revealed severe global encephalopathy, which his doctors agreed was caused by hypoxia, i.e., oxygen deprivation that occurred between the cardiopulmonary arrest and resuscitation. His treating physician, Dr. Jeremiah Suhl, and a consulting neurologist, Dr. William C. Robertson, agreed that Woods had suffered total and irreversible cessation of all normal brain functions. He responded neither to voice nor pain stimuli. He was unable to breathe or swallow. A tracheostomy was performed to permanently attach a mechanical ventilator that pumped oxygen into his lungs. Food and fluids were initially provided through nasal feeding tubes. Later, a gastrostomy was performed so that food and fluids could be mechanically pumped directly into his small intestine.

Woods was not dead as defined in KRS 446.400 because short bursts of electrical activity still emanated from his brain stem. These impulses caused severe myoclonus, a condition manifested by violent muscle spasms that were controlled only by a paralyzing drug. According to Dr. Robertson, there is no recorded case of a patient with myoclonus regaining consciousness absent some improvement within the first twenty-four to forty-eight hours. Woods's condition did not improve. He remained in a state of permanent unconsciousness, a condition more severe than a persistent vegetative state.

Dr. Suhl estimated that Woods's biological functions could be maintained for one or two years on ventilation, and possibly up to ten years, but that if the ventilator were removed, death would occur in less than forty-eight hours. Drs. Suhl and Robertson both recommended withdrawing artificial ventilation so that the natural process of dying could conclude. They did not recommend withdrawal of tube feeding until after death occurred. After a two-hour meeting with Dr. Suhl and CHR, the eleven members of the St. Joseph Hospital ethics committee unanimously agreed with the recommendation. CHR filed a motion in the Fayette District Court seeking judicial approval of the recommendation. The district court appointed a guardian ad litem for Woods, held a hearing, and accepted briefs on the issue. St. Joseph Hospital filed an amicus brief supporting the motion.

On September 21, 1995, the district court entered an opinion and order holding that KRS 311.631 authorizes a judicially-appointed guardian of an adult patient who lacks decisional capacity and has not made an "advance directive," to make health care decisions on behalf of the patient, including withdrawal of...