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December 13, 1996


Appeal from the Circuit Court of Cook County. Honorable Patrick E. McMann, Judge Presiding.

Released for Publication January 29, 1997.

The Honorable Justice Greiman delivered the opinion of the court: Gallagher, J., concurs. *fn2 Cerda, J., concurs in part and dissents in part.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

This case presents the questions of whether, to what extent and to whom a hospital and physician may be liable for alleged violations of the Illinois Health Care Surrogate Act (the Act) (755 ILCS 40/1 et seq. (West 1992)). The Act authorizes a surrogate to decide, subject to certain conditions, whether to discontinue life-sustaining medical treatment when the patient is found to lack decisional capacity.

On December 9, 1993, plaintiffs, Darlene, Thomas and Michael Ficke, filed a four-count complaint against Evangelical Health Systems (the Hospital) and Dr. Jose Aruguete (Aruguete), seeking damages for injuries sustained by plaintiffs' decedent, Dorothy Ficke (Ficke). Plaintiffs maintained, in count I of their second amended complaint, that the Hospital was liable to decedent's estate for its failure to comply with certain provisions of the Act. Count III claims that the Hospital is similarly liable to Ms. Ficke's children for such violations. Count IV seeks damages pursuant to the Act for physical and mental injuries incurred by plaintiffs as a result of Aruguete's negligent treatment of Ficke and misapprehension of the Act. Count II of the amended complaint, brought by the estate against Aruguete, was dismissed with leave to refile and is not before this court on appeal.

In a memorandum opinion and order entered on December 21, 1995, the trial court dismissed with prejudice counts I, III and IV of plaintiffs' second amended complaint. On January 11, 1996, plaintiffs timely filed their notice of appeal from the trial court's order of dismissal. For the reasons that follow, we affirm.

The following facts are adduced from plaintiffs' second amended complaint. Ficke was admitted to the Hospital, under the care of Dr. Aruguete, on March 8, 1993, with the diagnosis of a CVA (stroke). Ficke was 81 years old with a recent history of diabetes, arthritis, gout, hypertension, congestive heart failure, respiratory disease and depression. A "do not recessitate" (DNR) order was entered in Ficke's chart on March 17, 1993.

Plaintiffs' complaint alleges that on or shortly after her admission to the Hospital, Ficke lacked decisional capacity and suffered from a "qualifying condition" as to the operation of the Act because she lacked the ability to communicate meaningful thought, was unable to socially interact and lacked awareness of self and her environment. During Ficke's stay at the Hospital, Aruguete continued to prescribe treatment, including surgery, which the Hospital provided. These acts of rendering life-sustaining or life-prolonging intervention were contrary to the plaintiffs' expressed wishes. Moreover, the failure of the Hospital and Aruguete to inform plaintiffs of their rights under the Act, in addition to their own, independent, noncompliance with the Act's terms, violated the Act and caused plaintiffs' injuries.

As a general principle of Illinois law, competent adults have the right to refuse any type of medical care, including life-sustaining treatment. The right to refuse medical care has been recognized under constitutional right-to-privacy principles and is deeply ingrained in common law principles of individual autonomy, self-determination, and informed consent. See generally Fatum, Kane, & LeBlang, A Review of the Illinois Health Care Surrogate Act, 80 Ill. Bar. J. 124 (1992); see also Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891) ("No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law").

Although the right is recognized, implementation of that right, traditionally through judicial intervention, has been cumbersome and often untimely, in many instances resulting in the very manner of death sought to be avoided by patients prior to legal vindication of their right to forgo treatment. See, e.g., In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209, 1217 (1985); Bartling v. Superior Court, 163 Cal. App. 3d 186, 190, 209 Cal. Rptr. 220, 221 (1984); John F. Kennedy Memorial Hospital v. Bludworth, 452 So. 2d 921, 923 (Fla. 1984); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980); Corbett v. D'Alessandro, 487 So. 2d 368, 369 (Fla. App. 1986); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984); In re Spring, 380 Mass. 629, 631, 405 N.E.2d 115, 117-118 (1980); In re Storar, 52 N.Y.2d 363, 369, 420 N.E.2d 64, 66, 438 N.Y.S.2d 266, 268 (1984); In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984).

In Illinois, legislative response in this area first took the form of the Illinois Living Will Act (Will Act) (755 ILCS 35/1 et seq. (West 1992)). The Will Act recognized that individuals "have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have death delaying procedures withheld or withdrawn in instances of a terminal condition." 755 ILCS 35/1 (West 1992). Under the Will Act, individuals can document their wishes concerning life-sustaining treatment before they develop a terminal condition and lack the capacity to make such a decision. 755 ILCS 35/3 (West 1992). However, living wills soon proved too inflexible to adequately address the needs of individuals wishing to make advance health care decisions. They were applicable only in cases of terminal illness, which requires that death be imminent. Moreover, they would not permit health care providers to withhold or withdraw artificial nutrition or hydration when such action would be the sole cause of death. See 80 Ill. Bar. J. at 125.

Subsequently, the Illinois legislature passed article IV of the Powers of Attorney for Health Care Law (powers of Attorney Law) (755 ILCS 45/4-1 (West 1992)), which permits an individual to delegate, "without limitation, all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual and all powers a parent may have to control or consent to health care for a minor child." 755 ILCS 45/4-3 (West 1992). Thus, absent the limitations present in the Will Act, the Powers of Attorney Law provides a more comprehensive and effective means of delegating health-care decisions. Yet, under either statutory scheme, no provision is made for individuals who lack decision-making capacity and who have not executed a living will or a power of attorney for health care.

Two supreme court decisions addressed this "gap" and found a right to refuse life-sustaining treatment in our state's common law and in the provisions of the probate Act of 1975 (755 ILCS 5 et seq., (West 1992)). In re Estate of Longeway, 133 Ill. 2d 33, 139 Ill. Dec. 780, 549 N.E.2d 292 (1989); In re Estate of Greenspan, 137 Ill. 2d 1, 146 Ill. Dec. 860, 558 N.E.2d 1194 (1990). The court held that a surrogate can exercise the right for an individual lacking decisional capacity only if: (1) the individual is terminally ill as defined in section 2(h) of the Will Act; (2) the individual has been diagnosed as irreversibly comatose or in a persistently vegetative state; (3) the individual's attending physician and at least two other consulting physicians have concurred in the diagnosis; (4) the individual's right outweighs any interests of the State; (5) what the individual would have decided is ...

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