Looking for traction on the slippery slope: a discussion of the Michael Martin case.

• Author: Hess, John H.
• Position: Michigan

Case History of Michael Martin

The Accident and Michael's Resulting Condition

On Friday, January 16, 1987, at about 5:20 p.m., a car/train accident occurred in the town of Moline, Michigan, south of Grand Rapids. Michael Martin, age thirty-five, sustained a severe brain injury. His daughter Melanie, age seven, was killed. Michael's wife, Mary; his daughter Mindy, age eleven; and his son Matthew, age five, all received injuries from which they have in general recovered.

For the first several months following the accident, Michael showed little awareness of his surroundings; indeed, a treating neurologist diagnosed him as being in a condition of persistent unconsciousness.

Michael's family, however, noticed signs of responsiveness that gradually increased. From 1987 through 1990, Michael was housed first at an acute care facility, then at several rehabilitation facilities, first in the Grand Rapids area and then in the Detroit area.

Early on, Mary was appointed as Michael's guardian. In 1988 one of the nursing homes filed a complaint with the Michigan Adult Protective Services against Mary for attempting to stop routine treatment of Michael for pneumonia. Mary reluctantly agreed to provide the needed antibiotics, but from that time forward she refused to allow Michael's sister, Pat Major, and his mother, Leeta Martin, to have direct access to any information about Michael.

In 1990 Michael was transferred to the Neurologic Center, a rehabilitation facility in Howell, Michigan. He remained at the center for the next two and a half years, except for brief stays at acute care facilities.

In 1990 the Neurologic Center set out to determine Michael's level of cognitive functioning and whether he might be a candidate for an augmentative communication device. He was unable to talk but had some use of his right arm and leg and could pinch the fingers on his right hand upon command. The center retained a neuropsychologist, Dr. Walter Zetusky, who is educated and experienced in cognitive assessment of persons with mental impairments. Dr. Zetusky's 1990 findings concurred with those of an earlier neuropsychological evaluation in 1988: Michael demonstrated good potential for assessing information and thus was a candidate for a communication device. In addition, by performing a series of tests, Dr. Zetusky established that Michael had an IQ of sixty-three, and he opined that because of "scatter" Michael's IQ might be as high as seventy-seven. Michael successfully used the communication device throughout his stay at the Neurologic Center. His access to the device ceased, however, when Mary transferred him to the Glenwood Christian Center in January of 1993, where he presently resides.

For the most part, Michael remains physically dependent. He is able to move his right leg, has pinching ability in his right hand, can lift his right arm, and can move his head. Michael smiles frequently, and he has demonstrated the ability to show pain, frown, and even cry. Michael is cooperative, indicates his desire to participate in therapy, and enjoys participating in various recreational activities.(1) He relies on a feeding tube in his stomach for nutrition and hydration but does not require any other medical treatment or care.

Butterworth Hospital Incident

In january of 1992, without notifying other family members, Mary transferred Michael to Butterworth Hospital in Grand Rapids because he had intestinal blockage. At that time, also without notice to the rest of Michael's family, Mary took steps to have Michael's feeding tube withdrawn.

Two doctors at Butterworth concluded that Michael's cognitive level was only slightly above persistent unconsciousness, since in the hospital he demonstrated nothing more than a few eye blinks and a capacity to turn towards sound. Based on that diagnosis, the hospital's bioethics committee agreed that withdrawal of Michael's feeding tube would be appropriate from a medical-ethical standpoint.

Neither the medical staff nor the bioethics committee consulted with the Neurologic Center staff, which unanimously agreed that, before his hospital admission, Michael was interacting meaningfully with his environment and was responding to questions with appropriate head nods and smiles. Thus no one considered the possibility that Michael's limited responsiveness in the hospital was related to the weakened condition caused by his intestinal blockage or his unfamiliarity with a strange environment.

Mary specifically requested that Butterworth not notify other members of Michael's family of the bioethics committee meeting, thus eliminating another source of complete information regarding Michael's overall condition. Butterworth's attorneys, however, advised Butterworth that, since the hospital was aware of the previous dispute between Mary and Michael's other family members regarding the withholding of antibiotics, Butterworth should require Mary to obtain a court order authorizing her to implement the bioethics committee's nontreatment recommendation.

1992 Ruling of the Trial Court

On March 19, 1992, Mary petitioned the Allegan County Probate Court for the authority to withdraw Michael's feeding tube and other medical treatment presently being provided to him."(2) She asserted that (1) continued existence in a state of total helplessness and medical dependency is contrary to the prior, explicit verbal instructions of the ward";(3) (2) as a guardian empowered under Michigan law to consent to her ward's medical care, she was implicitly empowered to withhold consent;(4) and (3) that court action was necessary because of Butterworth's unwillingness to withdraw Michael's treatment unless "the guardian first obtains a court order permitting implementation of those decisions."(5) Prior to serving a copy of the petition on Pat and Leeta, and pursuant to Mary's suggestion, the probate court appointed a guardian ad litem for Michael, Irving Stahl.(6)

Pat and Leeta opposed the petition and urged the probate court to order the continuation of Michael's care and to remove Mary as his guardian. They acknowledged that Michael did make pre-accident statements to Pat and to two coworkers regarding the conditions under which he would not wish to continue living, but asserted that these statements concerned living in the condition of unconsciousness. They contended that his present interactive condition was not the one envisioned by Michael when he referred to being a "vegetable."(7) They also argued that he presently accepts his care and desires to live.

Moreover, Pat and Leeta argued that Mary should not be allowed to serve as Michael's guardian or be authorized to make medical decisions on his behalf because of her bias. They claimed that her removal is necessary because (1) she admitted that she wants to move on with her life; (2) she has engaged in extramarital relationships continuing through the time of the court proceedings; (3) she has much more to gain financially as a widow than through divorce;(8) and (4) she seems to be biased against persons with disabilities-in particular, she is unable to accept Michael in his postaccident condition.

After hearings taking place in September and October of 1992, Judge George Grieg, Jr., denied Mary's petition. Judge Grieg found that Michael was not competent to make medical decisions and that a nontreatment decision would be consistent with Michael's purported pre-accident wishes. He ruled, however, that Michigan law prevented Mary from effectuating Michael's wishes by removing his life supports because Michael had not put his desires into writing and he was neither terminally ill nor unconscious."(9) At a subsequent stage in the proceedings, Judge Grieg found that Pat and Leeta were not "interested parties" with standing to challenge Mary's nontreatment petition or to petition for her removal.(10) As a consequence, he denied their request for reimbursement from Michael's estate for attorneys' fees. Both sides filed appeals.

1993 Court of Appeals Ruling

In July of 1993 the Michigan Court of Appeals issued its first ruling in the case.(11) According to the appellate court, Pat and Leeta could challenge Mary's nontreatment petition, seek to remove Mary as Michael's guardian, and present impeachment evidence.(12) The court ruled that, while written treatment directives are preferable, oral statements may constitute clear and convincing evidence of a patient's treatment desires.(13) The court also held that Mary did not have to satisfy a condition-based threshold test for removing Michael's treatment. Instead, Michael's nonterminal, conscious condition was only one factor among many to consider.(14)

The appellate court remanded the case for further hearings and directed the probate court to apply a sequential analysis.(15) According to the appellate court, the probate court should evaluate Michael's present capacity to refuse treatment, and if he is found to be incapacitated, then the probate court should determine whether Michael might regain capacity.(16) Importantly, the appellate court framed the test as one determining capacity to refuse treatment.(17) if the court found Michael to be presently and permanently incapacitated, then it must decide whether, prior to the accident, he clearly and convincingly stated his desires regarding his present circumstances.(18)

If clear and convincing evidence of Michael's previous desires is unavailable, then the trial court should determine if the burdens of treatment clearly outweigh its benefits to Michael and whether "some trustworthy evidence" indicates that he would have refused treatment.(19) If the evidence is not trustworthy, then the probate court must determine whether the withdrawal of life support is in Michael's best interests.(20)

The appellate court also held that, although Mary disapproved, Pat and Leeta had a right to recover attorney fees from Michael's estate.(21) The appellate court recognized that their intervention...