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12/31/97 FETUS BROWN (THE PEOPLE STATE ILLINOIS v.

December 31, 1997

IN RE FETUS BROWN (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
DARLENE BROWN, RESPONDENT-APPELLANT, AND THE PUBLIC GUARDIAN OF COOK COUNTY, RESPONDENT-APPELLANT/CROSS-APPELLEE).



Appeal from the Circuit Court of Cook County. No. 96-JA-03312. Honorable William F. Ward, Jr., Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court. Greiman and Zwick, JJ., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

The issue before this court is whether a competent, pregnant woman's right to refuse medical treatment, which, in this case involves religiously offensive blood transfusions, may be overridden by the State's substantial interest in the welfare of the viable fetus.

The tensions present in this issue are palpable. Questions of morality and legality converge, requiring consideration of the obligations of a pregnant woman and of the State. As a court, we are asked to determine the proper balance of the mother's common law and constitutional interests in bodily self-determination as against the State's recognized interest in protecting the viable fetus. The facts of this difficult case are as follows.

On June 26, 1996, Darlene Brown, then 26 years old, was 34-3/7 weeks pregnant. After consulting with her treating physician, Dr. Robert Walsh, Brown was admitted into Ingalls Memorial Hospital in Harvey, Illinois, to have a cystoscopy and then to remove a urethral mass. Brown was anticipated to lose 100 cubic centimeters of blood due to the procedure. Before the surgery, Brown did not discuss with Dr. Walsh that she was a Jehovah's Witness.

During the surgery, Brown lost more blood than anticipated. After Brown lost approximately 700 cubic centimeters of blood, Dr. Walsh ordered three units of blood for transfusion. Once the blood arrived in the operating room, Brown, who was fully conscious and alert during the procedure, refused the blood, explaining that she was a Jehovah's Witness. The doctors believed Brown was competent to refuse the blood and they completed the surgery using other techniques to control her bleeding. By the end of the surgery, Brown had lost almost 1,500 cubic centimeters of blood.

After the surgery, Brown had a hemoglobin level of 4.4 grams per deciliter. A hemoglobin level of 9 to 11 or 12 grams per deciliter would be normal for a woman at this stage of pregnancy. Brown's hemoglobin level continued to drop. The morning of the court hearing, Brown's hemoglobin level was 3.4. Dr. Walsh explained that Brown's low hemoglobin level and the abrupt change in that level posed a significant, life-threatening risk both to Brown and to the fetus. After consulting with Brown and her husband, Lester Brown, as well as physicians at other hospitals, Dr. Walsh attempted to use alternative medical procedures, compatible with the beliefs of Jehovah's Witnesses, to raise Brown's hemoglobin level. Unfortunately, Brown's hemoglobin level continued to drop. Dr. Walsh spoke with numerous hematologists and oncologists. Dr. Walsh also spoke with a renowned researcher about other possible treatments. At the time of the hearing, it was Dr. Walsh's medical opinion that if Darlene Brown did not have a blood transfusion, her chances of survival, as well as those of the fetus, were only 5%.

On June 28, 1996, the State filed a petition for adjudication of wardship and a motion for temporary custody of Baby Doe, a fetus. Both were filed pursuant to the Illinois Juvenile Court Act of 1987. 705 ILCS 405/1-1 et seq. (West 1996). A hearing was held the same day. Although Brown contends that she was never served, the Browns were represented by counsel at the hearing and Lester Brown was present. The court began by appointing the public guardian of Cook County, over his objection, to represent the fetus (Fetus Brown). Next, uncertain as to jurisdiction under the Juvenile Court Act, the court found it inappropriate to proceed under the State's petition for adjudication of wardship. Thus, invoking the court's equitable powers, the State filed a "Petition for Hearing on Whether a Temporary Custodian can be Appointed to Consent to a Medical Procedure: To Wit Blood Transfusion."

At the hearing, the State called Dr. Robert Walsh, Darlene's treating physician, and Kurt Johnson, the hospital administrator. Dr. Walsh testified to the facts of Darlene Brown's condition as indicated above. Dr. Walsh also stated that, from the blood transfusion, Darlene Brown had a 1 in 1,000 risk of contracting hepatitis and a 1 in 5,000 or 10,000 risk of contracting HIV. Dr. Walsh explained that the blood transfusion was necessary, not to get blood to the fetus, but rather to get oxygen to the placenta via the mother's blood. Dr. Walsh explained that, while there were other methods of oxygenation, the problem was that the maternal blood was the only medium for transporting the oxygen to the placenta.

The State then called Kurt Johnson, the senior vice-president and chief operating officer of Ingalls Memorial Hospital. Johnson testified that he was aware of the situation and of Dr. Walsh's medical opinion. Johnson also testified that he was prepared to accept temporary custody of the fetus in order to consent to the blood transfusion.

The parties stipulated that, if called to testify, Lester Brown would confirm that Darlene Brown understood the risks to herself and the fetus if she did not accept the blood transfusion. The parties further stipulated that Lester Brown supported Darlene Brown's decision not to accept the blood transfusion. At the time of the hearing, the Browns had been married for two years and both worked to take care of Darlene's eight-year-old and three-year-old daughters. The parties also stipulated that, if anything happened to Darlene Brown, Lester would continue to take care of the two surviving children and both Darlene's and Lester's parents would be available for care and support of the children. The Browns then rested.

The trial court granted the State's petition and appointed the hospital administrator as "temporary custodian of Fetus Brown, with the right to consent to one or more blood transfusions for Darlene Brown, when advised of such necessity by any attending physician." In so holding, the trial court relied on the Illinois appellate decision in In re Baby Boy Doe, 260 Ill. App. 3d 392, 398, 632 N.E.2d 326, 330, 198 Ill. Dec. 267 (1994), as well as the Illinois Supreme Court decision in Stallman v. Youngquist, 125 Ill. 2d 267, 531 N.E.2d 355, 126 Ill. Dec. 60 (1988). The court granted the State's petition and appointed the hospital administrator as temporary custodian of Fetus Brown, with the right to consent to any and all blood transfusions for Darlene Brown when advised of such necessity by any attending physician. As alleged in the Browns' later pleadings, Darlene Brown was transfused with six units of packed red blood cells beginning on the night of June 28 and continuing to approximately noon on June 29. Further, Darlene Brown tried to resist the transfusion and the doctors "yelled at and forcibly restrained, overpowered and sedated" her.

On July 8, 1996, the court held a status hearing and found that Darlene Brown had delivered a healthy baby (Baby Doe Brown) on July 1, 1996, and that both baby and mother had been discharged from the hospital. The court then vacated the temporary custody order, dismissed the State's petition, and closed the case.

Appellant, Darlene Brown, filed a notice of appeal on July 25, 1996, pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301), appealing from the circuit court's order appointing a temporary custodian for the fetus with the ability to consent, on Darlene Brown's behalf, to a blood transfusion for the viable fetus. Appellant, Patrick T. Murphy, the public guardian of Cook County, Illinois, filed a separate notice of appeal on July 8, 1996, pursuant to Supreme Court Rule 303 (155 Ill. 2d R. 303), appealing from the circuit court's later order vacating temporary custody and dismissing the State's petition. The public guardian challenges the trial court's order appointing the public guardian to represent the interests of the viable fetus. As appellee, the State only challenges the issues raised on appeal by Darlene Brown. For the following reasons, we find that the trial court erred in appointing a temporary custodian for Fetus Brown with the ability to consent on behalf of Darlene Brown to a blood transfusion for the viable fetus.

We note that the factual controversy has been resolved. Darlene Brown received the blood transfusions on June 28-29, 1996, and delivered a healthy baby on July 1, 1996. While the factual issues are moot, the remaining legal issue satisfies the public policy exception to the Illinois mootness doctrine. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622, 104 N.E.2d 769, 772 (1952). The issue is a public one requiring authoritative determination for the future guidance of public officials, especially given the emergency and expedited nature of such proceedings. Labrenz, 411 Ill. at 622, 104 N.E.2d at 772. The Illinois Supreme Court has issued opinions in three blood transfusion cases despite potential mootness considerations. In re E.G., 133 Ill. 2d 98, 549 N.E.2d 322, 139 Ill. Dec. 810 (1989); In re Estate of Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622, 104 N.E.2d 769, 772 (1952).

Additionally, the trial court properly invoked jurisdiction under its equitable powers as a court of general jurisdiction. The same avenue was taken by the trial court in In re Baby Boy Doe. In re Baby Boy Doe, 260 Ill. App. 3d 392, 397, 632 N.E.2d 326, 329, 198 Ill. Dec. 267 (1994), appeal denied, No. 76560. Pursuant to the Illinois Constitution, the circuit court has subject matter jurisdiction extending to all justiciable matters, with certain limited exceptions, as invoked by the filing of a complaint or petition. Ill. Const. 1970, art. VI, ยง 9; City of Chicago v. Chicago Board of Education, 277 Ill. App. 3d 250, 261, 660 N.E.2d 74, 81, 213 Ill. Dec. 817 (1995). We find that the circuit court had jurisdiction to hear this cause.

Turning to the merits, on appeal, Darlene Brown challenges the propriety of the trial court's order appointing a temporary custodian to consent, on her behalf, to blood transfusions for the benefit of her viable fetus, Fetus Brown. Darlene Brown contends that, under federal and Illinois law, as a competent adult, she has an absolute right to refuse medical advice and treatment. In contrast, the State urges that its substantial interest in the viable fetus outweighs the minimal invasion presented by the blood transfusion. The public guardian also appeals, seeking guidance regarding its role as ...


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