Posts Tagged ‘Mississippi Family Lawyer’

Medical Decision Making for a Terminally Ill Child

Sunday, April 24th, 2016

RE:  Doe

Supreme Court of Georgia, 1992

262 Ga. 389, 418 S.E. 2d 3.

Clarke, Justice

In this appeal from a final order in a declaratory judgment action, we face several difficult issues relating to medical decision-making for a terminally ill child.  Jane Doe, a 13-year-old child, had experienced medical problems since birth.  In May, 1991, she was admitted to Scottish Rite Hospital following a mild choking episode.  Initially her attending physicians expected she would recover.  Over the next weeks, however, her condition degenerated and she became limp and unresponsive.  The doctors described her condition as “stuporous” or varying between stupor and coma states, and noted her brain stem was shrinking or degenerating.  She also suffered from various systemic illnesses.  The doctors agreed that she suffered from a degenerative neurological disease, but none could make a certain diagnosis.

In late May her doctors placed Jane on a respirator.  By mid-July she had suffered recurrent infections and mental decline.  At that time the doctors decided it was necessary to insert tracheostomy and gastronomy (feeding and breathing) tubes surgically.  They discussed the possibility of a “Do Not Resuscitate” (DNR) order with her parents in case Jane suffered cardiac arrest during the procedure.  Jane’s mother, Susan Doe, agreed to a DNR order; her father, John Doe, did not.  In August, Jane Doe’s condition continued to decline.  The doctors began to discuss whether de-escalation of life support1 and a DNR order might be appropriate.  In early September, Susan Doe supported de-escalation of life support and a DNR order.  John Doe did not.  At Susan Doe’s request, Jane’s medical situation was presented to Scottish Rite’s Bioethics Committee.  The Committee considered and evaluated Jane’s condition and recommended the hospital back Jane’s mother’s desire to enter a DNR order and deescalate medical treatment.

At the time of the hearing, she favored a DNR order, but not de-escalation of treatment.  After an evidentiary hearing, the trial judge entered an order enjoining the hospital from deescalating treatment or from enforcing a DNR order unless both parents agreed to such a course of treatment.  The state filed this appeal2.

1.  We find no merit to the state’s contention that the hospital had no standing to bring this declaratory judgment action.  We must construe the declaratory judgment statute liberally.  The statute is available in situations presenting an “’actual controversy’ . . . where interested parties are asserting adverse claims upon a state of facts wherein a legal judgment is sought that would control or direct future action.” Darnell v. Tate, 206 Ga. 576, 580, 58 S.E.2d 160 (1950).

Here, the hospital was charged with a duty of care to an incompetent patient whose parents disagreed as to the appropriate course of medical treatment.  Neither precedent nor statute provided a clear answer to the hospital’s dilemma.  Meanwhile, Jane Doe’s condition continued to deteriorate and the likelihood that she would experience cardiac arrest increased daily.  Without guidance as to which parent’s instructions to follow, the hospital could not determine its legal obligation to its patient.  On these facts, we conclude that the hospital adequately demonstrated a need for a legal judgment that would control is future action.  A declaratory judgment action was appropriate3.

2.  The state next contends the trial court erred in considering the hospital’s petition because Jane Doe did not meet the criteria for withdrawal of life support established in In re: L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984).  In In re: L.H.R. we held that, in the absence of any conflicting state interest, a patient has a right to refuse medical treatment which right is not lost because of the youth or incompetence of the patient.  We went on to say: We conclude that the right to refuse treatment may be exercised by the parents or legal guardian of the infant after diagnosis that the infant is terminally ill with no hope of recovery and that the infant exists in a chronic vegetative state with no reasonable possibility of attaining cognitive function.  The above diagnosis must be made by the attending physician.  Two physicians with no interest in the outcome of the case must concur in the diagnosis and prognosis.  Although prior judicial approval is not required, the courts remain available in the event of disagreement between the parties, any case of suspected abuse, or other appropriate instances.  In this case the state emphasizes Jane Doe’s doctors could not diagnose with certainty the disease causing her neurological degeneration.  The state also points out Jane Doe was not in a chronic vegetative state and death was not imminent4.  Therefore, the state asserts, the hospital could not raise the issue of de-escalation of medical treatment and the trial court should have dismissed the case.

(a) First, we reject the state’s argument that the trial court should have dismissed this case because Jane Doe did not meet the criteria expressed in In re L.H.R. In In re L.H.R. we addressed a specific set of circumstances and decided that the parents and physicians caring for the infant could decide whether to proceed with de-escalation of medical treatment without seeking judicial approval.  The opinion set up guidelines to protect the rights of incompetent patients without involving the court in the medical decision-making process for every incompetent patient.  The opinion did not preclude considering the propriety of de-escalation under other circumstances.  During the years since we considered In re L.H.R., the legislature has enacted or amended several statutes governing the legal propriety of proxy health care decisions.  See, OCGA § 31-32-1, et seq. (Living Wills); OCGA § 31-36-1, et seq. (Durable Power of Attorney for Health Care); and OCGA § 31-39-1, et seq. (Cardiopulmonary Resuscitation).  Also, other courts have recognized that incompetent patients have the right to refuse life sustaining treatment even though they are not in a chronic vegetative state5.  Thus, while medical technology and society’s understanding of death and dying continue to evolve and change, we cannot mandate a single, static formula for deciding when de-escalation of medical treatment may be appropriate.  Rather, we endorse the view that medical decision-making for incompetent patients is most often best left to the patient’s family (or other designated proxy) and the medical community, . . . and the courts remain available to decide controversial cases.

(b) We further reject the state’s argument that Jane Doe’s parents could not legally have decided to deescalate her medical treatment.  The medical staff attending to Jane Doe agreed that she was in the final stages of some degenerative neurological disease, and that she vacillated between coma and stupor, responding only to deep pain stimulus.  She required artificial means to support all her bodily functions.  The doctors agreed she lacked the ability for any cognitive function or interactive activity, and did not have any reasonable hope for her recovery.  They also agreed there was no known medical treatment that could improve her condition or halt the neurological deterioration.  It was apparent that the life support system was prolonging her death, rather than her life.  There was no state interest in maintaining life support systems.  Thus, we conclude that those legally responsible for Jane Doe could have refused treatment on her behalf without seeking prior judicial approval.

(c) A corollary to the above statement is that Jane Doe’s parents also could have consented to treatment on her behalf.  See OCGA § 31-9-2 (Persons authorized to consent to medical or surgical treatment).  At the time of the hearing, both parents opposed de-escalation of treatment.  No party in this case argues that the parents’ mutual decision to continue life support measures should have been overridden under the facts of this case6.  This appeal does not present and we do not reach any issue regarding “medical abuse.”  Therefore, the trial court correctly enjoined the hospital from deescalating treatment over both parents’’ objection7.

3.  The state next asserts the trial court erred in holding that a DNR order requires the concurrence of both parents of the child.  The statute requires the agreement of both parents, if both parents are present and actively participating in the medical decision-making process for the child.  OCGA § 31-36-1 allows “any parent”8 to consent to a DNR order for a minor child.  OCGA § 31-36-6 allows “any parent” to revoke consent to an order not to resuscitate.  The result is as follows:  One parent may consent.  If there is no second parent, if the other parent is not present, or if the other parent simply prefers not to participate in the decision, the consent of one parent to a DNR order is legally sufficient under that statute.  However, if there is a second custodial parent who disagrees with the decision to forego cardiopulmonary resuscitation, the second parent may revoke consent under the terms of OCGA § 31-39-6(b).  We reject the argument that only the parent who has given consent may effectively revoke consent.  Where two parents have legal custody of a child, each parent shares equal decision-making responsibility for that child.  If consent to a DNR order is revoked under the provisions of OCGA §31-39-6(b), the hospital must follow the statutory presumption that every patient is presumed to consent to resuscitation9.  See OCGA §31-39-3(a).  Thus because the father revoked consent, the trial court correctly determined the hospital could not enter a DNR order.


1.   De-escalation is the discontinuation of medical measures, such as a ventilator.  A DNR order means that extreme lifesaving procedures like counter-shock, chest compression and administration of medication to support heart rate and blood pressure will not be instituted in the event of cardiac or respiratory failure.

2.   Although Jane Doe died several weeks after the final order was entered in the declaratory judgment action below, this appeal is not moot because it is among those cases which are “capable of repetition yet evading review.”  In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) (quoting Gerstein v. Pugh 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).

3.   Contrary to the state’s suggestion, this action does not fall within the exclusive jurisdiction of Juvenile Court.  See OCGA § 15-11-5.  The action did not seek to terminate the legal parent-child relationship or to wrest custody or control from Jane Doe’s parents.  Further, Jane Doe was not a “deprived child,” because both parents actively sought the best available care and treatment for her.

4.   Imminence of death is not a criterion for de-escalation of medical treatment under In re L.H.R. or under the current provisions of the Living Will statute.  See OCGA § 31-32-1 (1992).  See also State v. McAfee, 259 Ga. 579, 385 S.E.2d 651 (1989).  This court and the Georgia legislature have recognized, as have numerous other courts, scholars, and ethicists, that medical technology can extend the dying process almost indefinitely, so that technical death might not occur for many years if artificial support systems are continued.

5.   See, e.g., Superintendent of Belchertown State Sch. V. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (chemotherapy treatment could be withheld from a profoundly retarded and disoriented man suffering from leukemia, where the chemotherapy would not cure his disease but merely prolong his suffering); In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980) (life-prolonging but non-curative hemodialysis treatment could be withheld from conscious but profoundly senile patient suffering from kidney disease); In re Hier, 18 Mass.App. 200, 464 N.E.2d 959 (1984) (surgery necessary for insertion of a stomach feeding tube could be withheld from incompetent person suffering from delusions and severe mental illness); In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) (right to terminate life-sustaining treatment could be exercised on behalf of an incompetent person with serious and permanent mental and physical impairments and a life expectancy less than 1 year); Foody v. Manchester Mem. Hosp., 40 Conn.Sup. 127, 482 A.2d 713 (1984) (life sustaining treatment could be withheld from semi-comatose patient described as “awake but unaware”).

6.   The law recognizes that parents “possess what a child lacks in maturity, experience and capacity for judgment required for making life’s difficult decisions.  More importantly, . . . natural bonds of affection lead parents to act in the best interests of their children.” In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) (quoting Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979)).  Therefore, the law presumes that the parents are the appropriate parties to make their children’s medical decisions.  For this reason in In re L.H.R., supra, we held that, under certain circumstances, the parents of an incompetent child may exercise the child’s right to refuse medical treatment without prior judicial approval.  We have never held, however, that parents have an absolute right to make medical decisions for their children.  See. E.g., Jefferson. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457 (1981); In the Interest of C.R., 160 Ga.App. 873, 288 S.E.2d 589 (1982).  The United States Supreme Court similarly does not recognize an absolute right of a parent to make medical decision for a child.  See Parham v. J.R., supra.

7.   This appeal does not present any issue regarding what should have been done if Jane Doe’s parents had disagreed at trial or thereafter about the propriety of deescalating treatment.

8.   Note that the statute defines “parent” as a parent who has custody of a minor.  OCGA § 31-39-2(10).

9.   The statutory presumption governs only consent to emergency cardio-pulmonary resuscitation.  No statutory or other presumption governs the issue of consent to other, non-emergency medical procedures.

Mississippi Family Lawyer Discusses Child Custody Contempt Orders

Wednesday, September 30th, 2015

When you enter into a child custody agreement as part of an uncontested divorce or a judge drafts a custody order during a contested divorce proceeding, that child custody agreement becomes legally binding. Not only can your former spouse report you to the court if you violate it, but the court may find you in contempt. There are two types of contempt: civil contempt and criminal contempt. Civil contempt requires you to pay money, such as past due child support. Criminal contempt places you in county jail as a punishment for violating a custody order.

Common reasons for criminal contempt orders in child custody cases include:

  • One parent repeatedly failing to appear or appearing late for custody exchanges
  • One parent extending the visitation without notice to or consent from the other parent
  • One parent leaving the jurisdiction with the child without notice to or consent from the other parent
  • Neglecting or abusing the child
  • Picking up the child from school when the day is assigned to the other parent

While biological parents do have rights, think of parenting as a privilege, not a right. A privilege is something that can be taken away if you do not follow certain rules. Your right to custody of your child can be taken away if you violate the custody order.

If the other parent is egregiously violating the custody order, you should first attempt to resolve things with that parent. Remind them of their obligations and agreements under the custody order and respectfully request that they fix the issue. If this does not work, consult with a child custody lawyer like Matthew S. Poole. Matthew S. Poole can advise you on your options and next steps. One potential next step is to file a motion for contempt.

A motion for contempt alleges that the other parent is in violation of the custody agreement. If the custody agreement is not already part of the record, attach a copy with your order. The motion will state which provisions in the agreement have been violated and how. You may also request a remedy. Remedies can be as light as warnings and as severe as jail time. If your former spouse has committed serious violations, you may be able to seek temporary legal and physical custody.

As an example, one Mississippi couple entered into a custody agreement that stated that the mother and father shared joint legal and physical custody of their daughter. The custody agreement also laid forth an education plan for the child, including which school she was to attend. One day, when it was the father’s day to pick up the child from school at the beginning of the school year, he was unable to find her. He spoke with the principal of the school, who told him that the mother had not registered the child for school that year. He immediately called the mother to find out where his daughter was, and the mother stated that she was getting on a plane to Africa, where she would be moving permanently to live in a Zionist colony and homeschool the daughter.

The father filed a motion for contempt, arguing that the mother violated his visitation rights granted by virtue of joint custody. In addition, the mother violated the education plan set forth in the agreement. The U.S. Department of State assisted the father by locating the mother in Africa and conducting a welfare check on the child. The Department of State determined that the child was in danger for her health and safety and was not receiving adequate food, water, and shelter. The mother and daughter finally return to Mississippi after almost two years. Upon attending the motions hearing, the mother was found in criminal contempt and ordered to serve seven days in county jail. The father was awarded sole legal and physical custody.

If you are frustrated with your former spouse for violating the child custody agreement, contact Mississippi Family Lawyer Matthew S. Poole now to schedule a free, no hassle case evaluation at (601) 573-7429.

Mississippi Family Lawyer Discusses the State of Mississippi’s Foster Care System

Friday, August 28th, 2015

Mississippi’s foster care system is in drastic need of reform. For seven years, there has been a court order in place which requires sweeping changes to many aspects of the foster care system in Mississippi. For seven years, the Mississippi foster care system has not made the changes that are needed to meet the needs of the growing number of children who are in state custody.

The Mississippi foster care system has been under scrutiny for some time now, and there is a great deal of documentation of how the system is failing to meet the needs of the thousands of children that it is supposed to serve. The problems with Mississippi’s foster care system are numerous and varied. Allegations of abuse are not being investigated promptly. Case workers have such high caseloads that they cannot check up on kids in their foster care placements often enough or do other things that they need to do in order to do their jobs properly. Children are being placed in foster care placements that are unlicensed, or that are otherwise not appropriate for their needs. Adoptions are being delayed. Children are going without health screenings and medical care in some situations. These and other issues are the reasons why a group of consultants will spend four months assessing the state’s foster care system before offering its recommendations to the state.

Additionally, the foster care system will soon be undergoing some changes in its leadership. These new leaders, which will likely include a new executive director and a new senior management team, will be responsible for implementing the recommendations of the consultants. In the event that the state is unwilling or unable to agree to implement the recommendations of the consultants, the attorneys who represent the interests of the children in the state’s foster care system have a backup plan. If necessary, they plan to ask the court to place the Mississippi foster care system in receivership. If the foster care system goes into receivership, the state government will no longer have the authority to run it, and it will be run by a party appointed by the federal court. Receivership is a rare and serious situation which has only occurred with one other foster care system, in Washington, D.C..

The Mississippi foster care system is in need of changes that will benefit both the children in it and the present and future parents and families of those children. If your child custody case involves the Mississippi foster care system, a Mississippi Family Lawyer can help you to understand that system and your child custody case. Your attorney can provide you with the legal support and information that you need in order to make informed decisions about how to proceed with your child custody case. Mississippi Family Law Attorney Matthew S. Poole has helped many parents navigate Mississippi child custody cases, and he may be able to help you, too. Please call our office today, at (601) 573-7429, to schedule a free, initial consultation.