On March 9, 1995, Hugh Finn was injured in an automobile accident. As a result of the accident, he suffered severe brain damage and required continuous nursing home care, including artificially administered hydration and nutrition through feeding tubes....
In June 1998, Michele P. Finn, Hugh Finn's wife and legal guardian, determined that it would not have been her husband's wish that he be kept alive by artificial means, including the administration of hydration and nutrition, if there were no reasonable possibility of his recovering from a persistent vegetative state. Michele Finn then informed Hugh Finn's immediate family of her decision that pursuant to the provisions of the Virginia Health Care Decisions Act (the Act), Code § 54.1-2981 et seq., she intended to direct the medical staff at Annaburg Manor Nursing Home to withdraw this life-prolonging procedure from her husband.
A series of legal actions between the various members of Hugh Finn's family followed. These legal actions were emotionally difficult for the family, ultimately became the subject of public debate and, indeed, led to the involvement of the Governor of Virginia.
Several members of Hugh Finn's immediate family disagreed with Michele Finn's decision. John Finn, Hugh Finn's brother, filed a chancery suit in the Circuit Court of Prince William County (the trial court) seeking a permanent injunction to prohibit the withdrawal of hydration and nutrition from Hugh Finn and to remove Michele Finn as Hugh Finn's guardian (the John Finn lawsuit). On July 17, 1998, the trial court granted a temporary restraining order prohibiting Michele Finn from taking action to withdraw the life-prolonging procedure being administered to Hugh Finn. On July 29, 1998, the trial court held a hearing to consider John Finn's request for a permanent injunction and to remove Michele Finn as guardian. The trial court received testimony from Hugh Finn's neurologist, his physiatrist and Dr. Robin B. Merlino, his attending physician. The trial court found that the unanimous diagnosis of these three physicians provided "clear and convincing evidence that Hugh Finn has been and remains in a persistent vegetative state as defined in Va.Code § 54.1-2982, that can be characterized as a permanent vegetative state, meaning that, to a reasonable degree of medical probability, it is irreversible." The trial court further found that there was credible testimony from Michele Finn and in the de bene esse deposition of Kenneth L. Sales, Hugh Finn's attorney, that Hugh Finn had on "multiple occasions before his tragic accident" expressed that "he would not wish to have his life artificially prolonged with artificial life sustaining medical treatment, and that he would specifically wish to have [artificially administered] nutrition and hydration withdrawn if he were in a persistent or permanent vegetative state."
Addressing the provisions of the Act found in Code § 54.1-2986, the trial court found that Michele Finn had satisfied the requirement that she make "a good faith effort to ascertain the risks and benefits of and alternatives to the treatment and the religious beliefs and basic values of ... the patient receiving treatment." The trial court further found that it was " impossible to communicate with Hugh Finn as a result of the permanent vegetative state" and, thus, it was appropriate for Michele Finn to "base [ ] her decision on [her husband's] religious beliefs and basic values and [his] preferences previously expressed ... regarding such treatment." Based upon these findings, the trial court determined that "the termination of [Hugh Finn's] medical treatment ... including the withdrawal of [artificially administered] nutrition and hydration, is a medically appropriate, ethical treatment decision that is not inconsistent with Hugh Finn's personal wishes or his personal religious beliefs." Accordingly, the trial court concluded that John Finn had not satisfied his burden of demonstrating the likelihood of ultimately prevailing on the merits of a challenge to either the appropriateness of Michele Finn's decision or to her suitability as Hugh Finn's guardian. In an order dated August 31, 1998, the trial court denied John Finn's request for a permanent injunction, dissolved the temporary injunction issued in the July 17, 1998 order, and dismissed John Finn's petition to remove Michele Finn as Hugh Finn's guardian. Although granting Michele Finn authority to proceed with her decision to direct the withdrawal of Hugh Finn's artificially administered hydration and nutrition, the trial court stayed that authority for 21 days. The trial court further required John Finn to pay one-half of the fees for the guardian ad litem appointed for Hugh Finn, one-half of the fees for the expert witnesses, and one-half of the attorney's fees and costs incurred by Michele Finn in defending the suit.
During the period of the stay imposed on Michele Finn by the trial court, John Finn filed a motion for reconsideration. In that motion, he asserted that new evidence had been acquired to show that his brother was not in a persistent vegetative state. On September 21, 1998, the trial court held a hearing on that motion and reviewed the affidavit of Marie F. Saul, R.N., a utilization review nurse employed by the Commonwealth's Department of Medical Assistance Services. In that affidavit, Saul stated that while reviewing Hugh Finn's medical records, she attempted to communicate with him. After repeatedly saying "Hi" to him, Saul believed she heard him respond in a similar fashion. Saul further stated that she then persisted in attempting to communicate with Hugh Finn for over an hour, but received no further response, although she observed Hugh Finn "[s]moothing" his hair. Saul also testified at the hearing, essentially reiterating the statements in her affidavit. By proffer, the trial court received evidence from Michele Finn that the Commonwealth's Department of Health and Human Resources had conducted its own investigation of Hugh Finn's condition and that the Department's report concurred in the diagnosis of his treating physicians that Hugh Finn was in a persistent vegetative state. Michele Finn further proffered evidence that it was beyond the usual responsibility or training of a utilization review nurse, such as Saul, to make clinical observations or to report on the physical or medical condition of a patient. The evidence further showed that there had been no change in Hugh Finn's condition or in the diagnosis of that condition by his treating physicians since the entry of the August 31, 1998 order. The trial court found that Saul's affidavit and testimony did not constitute new evidence and, moreover, "did not contradict a finding that [Hugh Finn] is [ ] in a persistent vegetative state" as previously determined by that court. Accordingly, the trial court denied the motion for reconsideration. John Finn was ordered to pay the additional fees and costs arising from the hearing on his motion.
At various times following the July 29, 1998 hearing and continuing after the trial court's denial of John Finn's motion for reconsideration, agencies of the Commonwealth, apparently responding to requests from a relative of Hugh Finn and a member of the General Assembly of Virginia, made a series of investigative visits to Annaburg Manor Nursing Home to examine Hugh Finn. These visits were conducted without the knowledge of Michele Finn and contrary to her express instructions that access to her husband be limited to family members and medical staff. On September 20, 1998, twenty members of the General Assembly released an informal declaration "In the Matter of Hugh Finn" in which they asserted that "the provision of comfort care as well as food and water should not be denied patients where such removal will be the underlying cause of death." Under the aegis of the prior action filed by John Finn, Michele Finn filed a motion seeking an order to enjoin the Commonwealth from making further intrusions into her husband's privacy. The trial court conducted a hearing on Michele Finn's motion on September 25, 1998. At that hearing, the evidence showed that three physicians employed by the Commonwealth's Department of Health and Human Resources had examined Hugh Finn and determined that he was in a persistent vegetative state. The physicians had further stated in an interview with David Tucker, Administrator of Annaburg Manor Nursing Home, that removal of Hugh Finn's feeding tubes would have been warranted as much as a year and a half prior to the date of their examination. Additional evidence showed that the Commonwealth's physicians discounted Saul's report that Hugh Finn had actually responded to her efforts to communicate with him. The trial court sustained the Commonwealth's demurrer to Michele Finn's motion on the ground that the Commonwealth was not a party to the John Finn lawsuit. On September 28, 1998, Hugh Finn's family members who had opposed Michele Finn's decision to withdraw the life-prolonging procedure being administered to Hugh Finn agreed not to pursue further legal action. Accordingly, no appeal was taken from the judgment rendered in the John Finn lawsuit.
On September 30, 1998, James S. Gilmore, III, "acting in his official capacity [as Governor of the Commonwealth of Virginia] and in the name of the Commonwealth," filed a bill of complaint against Annaburg Manor Nursing Home, Dr. Merlino, and Michele Finn seeking a temporary restraining order and a permanent injunction to prohibit the respondents from withdrawing the administration of hydration and nutrition from Hugh Finn (the Governor's lawsuit). The Governor asserted in the bill of complaint that the suit was brought pursuant to Code § 2.1-49, which provides, in pertinent part, that "pursuant to his duty to protect or preserve the general welfare of the citizens of the Commonwealth, the Governor may institute any action, suit, motion or other proceeding on behalf of its citizens, in the name of the Commonwealth acting in its capacity as parens patriae, where he shall determine that existing legal procedures fail to adequately protect existing legal rights and interests of such citizens." In addition, it was asserted that the suit was brought pursuant to Code § 54.1-2986(E), which provides that: "On petition of any person to the circuit court of the county or city in which any patient resides or is located for whom treatment will be or is currently being provided, withheld or withdrawn pertinent to this article, the court may enjoin such action upon finding by a preponderance of the evidence that the action is not lawfully authorized by this article or by other state or federal law." (Emphasis added.)
The Governor, as pertinent to the present appeal, contended that Hugh Finn is "dependent upon the artificial administration of nutrition and hydration in order to survive" and that the withdrawal of this procedure "will initiate a process of dying which will cause Hugh Finn to die from starvation and/or dehydration." Accordingly, the Governor further contended that "the Virginia Health Care Decisions Act ... does not authorize the withholding of nutrition and hydration from Hugh Finn" because Code § 54.1-2990 expressly provides that "nothing in [the Act] shall be construed to condone, authorize or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying." The Governor further contended that "[u]pon information and belief, Hugh Finn is not in a persistent vegetative state as defined under Code § 54.1-2982; however, even if Hugh Finn were in a persistent vegetative state, the Respondents would not be authorized under the Act ... to withhold or withdraw the administration of nutrition and/or hydration" from Hugh Finn.
On October 1, 1998, the trial court held a hearing on the Governor's request for a temporary restraining order. At that hearing, the Governor, represented by the Office of the Attorney General, conceded that there was no new evidence to present in support of the contention that Hugh Finn was not in a persistent vegetative state and relied solely on Saul's affidavit. The Governor contended, however, that Hugh Finn's medical condition was not dispositive inasmuch as the principal contention of the bill of complaint was that the withdrawal of hydration and nutrition under the circumstances of the case was prohibited by Code § 54.1-2990. Hugh Finn's guardian ad litem advised the trial court that there was new evidence in the form of a medical report prepared for the Department of Medical Assistance Services by Dr. Naurang S. Gill, which the guardian ad litem had obtained from the Office of the Attorney General. Dr. Gill's report confirmed the previous diagnoses of Hugh Finn's personal physicians and the physicians employed by the Department of Health and Human Resources that Hugh Finn "had been and remained in a persistent vegetative state." Dr. Gill further opined "that [Hugh Finn's] chances of any meaningful recovery ... are practically zero." On the day the hearing was held, the trial court denied the Governor's request for a temporary restraining order. In that order, the trial court reviewed the prior proceedings and its factual findings in the John Finn lawsuit and then reiterated its prior determination that Michele Finn had "full authority under the Act, to withhold and withdraw life-prolonging medical procedures," including the artificial administration of hydration and nutrition. Addressing the argument that Code § 54.1-2990 prohibited the withdrawal of hydration and nutrition, the trial court concluded that "a person in a persistent vegetative state is, as a matter of law, in the natural process of dying within the meaning of [Code § 54.1-2990] and ... the withholding and/or withdrawal of artificial nutrition or hydration from a person in a persistent vegetative state merely permits the natural process of dying and is not mercy killing or euthanasia with[in] the meaning of [Code § 54.1-2990]."
Pursuant to Code § 8.01-626, the Governor filed an emergency petition in this Court for review of the trial court's order. The Governor's sole assignment of error asserted that the denial of the motion for a temporary restraining order "was error, and was based on an erroneous interpretation of Va.Code § 54.1-2990." Without conceding that Hugh Finn was in a persistent vegetative state, the Governor argued for reversal of the trial court's order on the ground that a person in a persistent vegetative state is not in the "natural process of dying," but rather that the withdrawal of hydration and nutrition would "initiate a dying process not previously present." Thus, the Governor contended, as he had in the trial court, that a plain reading of Code § 54.1-2990 would prohibit the withdrawal of hydration and nutrition from a person not otherwise in the process of dying from some other disease or condition. The Governor further contended that even if this Court were unwilling to construe the statute in this manner, the failure to issue the temporary restraining order deprived the parties of the opportunity "to make [a] more deliberate investigation" of Hugh Finn's condition, "whatever that condition may be."
By order entered October 2, 1998, we denied the Governor's emergency petition for review. In that order, we held that the "withholding and/or withdrawal of artificial nutrition and hydration from ... a person in a persistent vegetative state[ ] merely permits the natural process of dying and is not mercy killing or euthanasia within the meaning of Code § 54.1-2990." Gilmore, et al. v. Annaburg Manor Nursing Home, et al., Order Denying Emergency Petition for Review (October 2, 1998). Hugh Finn subsequently died following the withdrawal of the life-prolonging procedure in question.
Gilmore v. Finn, 259 Va. 448, 453-60, 527 S.E.2d 426, 428-32 (2000).