Pettis v. Smith and Braddock in the Louisiana Court of Appeal.

• Author: Bostrom, Barry A.
• Position: Convincing evidence for intention to decline tube feeding

HOLDING: Tube feeding may be withheld or withdrawn from a person in a persistent semi-conscious state even though her living will did not explicitly decline tube feeding, and there is no clear and convincing evidence of her intention to decline tube feeding.

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Mrs. Smith was an 89-year-old resident of Chatham, Louisiana. An active, outgoing and religious person, Mrs. Smith suffered a debilitating stroke in March 2004. Although she survived, she no longer had any significant brain function. Her treating physician testified that she suffered from global aphasia, meaning she could neither understand nor speak. Although she was no longer in a coma, he described her as in a "semi-coma," having reached a "flat line," and that any further improvement in her condition would require a "miracle."

A second physician, examined Mrs. Smith in late May and assessed her condition as a "vegetative state," with no chance of improvement. Mrs. Smith was unable to feed herself or eat, and was receiving nourishment through a gastric tube. Both doctors testified that she could be kept alive for a year or two, or even longer; however, if the feeding tube were withdrawn, she would live only "a few days, to a week."

On May 26, 2004, after consideration of their mother's condition, Steve Smith and Dianne Braddock completed a form requesting the hospital to withhold tube feeding. Her doctors signed the form, attesting that Mrs. Smith would die whether or not life-sustaining procedures are utilized, and that the application of such procedures would serve only to prolong the dying process.

Mrs. Pettis, sister to Smith and Braddock, opposed the withdrawal of nutrition, and on June 7 filed a petition for an injunction. The Fourth Judicial District Court for the Parish of Ouachita, Louisiana, denied the request for injunction, and the Court of Appeals, Second Circuit, took the matter on an expedited basis and denied review with an opinion, finding no error in the denial of injunction.

At the hearing, the living will declarations were admitted into evidence with testimony. On March 24, 2001, Mrs. Smith executed two essentially identical documents entitled "Power of Mandatary to Make Health Care Decisions." Mrs. Smith executed these in the presence of her two children, Steve Smith and Dianne S. Braddock, Dianne's husband Alton Braddock, Raymond Spires, and Rich Waldrop. Mrs. Pettis was not present.

The living wills declared in pertinent part:

If at any time I should...