In the matter of Christine B. Biersack in the Ohio Court of Appeals.

• Author: Bostrom, Barry A.
• Position: Convincing evidence before withdrawal of tube feeding may be permitted

HOLDING: Before withdrawal of tube feeding may be permitted, a guardian must establish, by clear and convincing evidence, the treating and consulting physicians' education, training, and experience; the physician's history and experience with the patient; the fact that the physician personally examined the patient; and the opinions required by statute. Each physician should also testify to his opinion that the other physician in the matter is qualified, by reason of advanced education or training, limited practice, experience, or certification as a specialist, to make the findings and provide the opinions about the patient which are required by the statute. The consulting physician's opinion should be more than a conclusory adoption of the attending physician's opinion. Rather, it should be independently stated and, ideally, should include the reasons upon which it is based.

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On March 3, 1994, Biersack, then forty-three years old, was involved in an automobile accident. As a result of the accident, Biersack's husband and one of her nine children were killed. Biersack suffered injuries that rendered her quadriplegic. She never regained consciousness and was transferred to a nursing home. Following the accident, a feeding tube was inserted to provide nutrition and hydration. She required no other life support devices. Her father and oldest son were appointed co-guardians.

Biersack's condition has not improved since 1994. In 2003, the co-guardians filed a motion to withdraw tube feeding. All of her seven surviving children filed written consents to the withdrawal. No one opposed the motion. The trial court found that Biersack had never expressed her wishes regarding tube feeding. The trial court held that the co-guardians had not established by clear and convincing evidence that the removal of the feeding tube would have been Biersack's choice and denied the motion. The co-guardians appealed.

First, Biersack's co-guardians argued that the trial court erred by holding Biersack's informal verbal declaration of her wishes regarding life sustaining treatment to the strict standard of formal, written living wills. They argued that the it was error for the trial court to require that tube feeding be separately addressed in an informal verbal declaration. Thus, they argued that the evidence of Biersack's wishes regarding life-sustaining treatment necessarily included tube feeding, and that that evidence was clear and convincing.

According...