Some Legal Problems in Medical Treatment and Research, Lifesaving Treatment for Unwilling Patients
Some Legal Problems in Medical Treatment and Research, Lifesaving Treatment for Unwilling Patients
David J. Sharpe 0
Robert F. Hargest 0
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Recommended Citation David J. Sharpe and Robert F. Hargest, III, Some Legal Problems in Medical Treatment and Research, Lifesaving Treatment for Unwilling Patients, 36 Fordham L. Rev. 695 (1968). Available at: http://ir.lawnet.fordham.edu/flr/vol36/iss4/4
DAVID J. SHARPE* & ROBERT F. HARGEST, III**
D OES anyone have the power to compel a hospital patient to have his
life saved? If so, who? These distressing questions arise when a
hospital patient, usually at the brink of death and unable to be removed
from the hospital, refuses to authorize the attending physician to
administer lifesaving treatment. Most frequently the refused treatment is the
transfusion of whole blood, either because the need exists from
hemorrhage or because it may arise in connection with major surgery. The
patient's refusal is often based on the doctrine of Jehovah's Witnesses
that the Bible forbids a Witness to give or receive whole blood.'
Regardless of scriptural interpretation, it is widely and deeply felt by
many persons-medical, religious, legal and lay of all sorts- that a
person has "the right to die." This phrase requires much qualification before
it becomes an accurate statement of any professional group's doctrine,
but it reflects the general view that since everyone dies sometime, exactly
when a person dies (apart from suicide) is essentially in the hands of his
Creator. Then if anyone is to interfere with the natural processes of
disease and death, the person himself is the first, the most important, and
perhaps the only party in interest. In the United States, where a person's
first duty is not to serve the State, all persons having an interest in saving
the hospitalized Jehovah's Witness's life stand well below the Witness
himself; they are not so much primary parties in interest as
quasi-intervenors in the Witness's arrangements with his God, seeking to create a
dispute and then to draw it into litigation in a secular forum.
"Quasi" means "as if;" an as-if intervenor fictionalizes intervention to
serve a purpose of justice which intervention literally does not fulfill.
Quasi-intervenors properly bear a considerable burden in being permitted
to enter a Witness's intrapersonal dispute, and, most awkward for all
* Professor of Law, George Washington University. A.B., University of North Carolina;
LL.B., Harvard University.
** Member of the Virginia Bar. A.B., University of Maryland; LL.B., George Washington
University. The views of Mr. Hargest are his own and do not reflect those of the Huyck
1. [Albstain ... from blood ...." Acts 15:29. Other similar passages appear at Genesis
9:3-4, Leviticus 17:10-14, Deuteronomy 12:15-16, and elsewhere. See In re Estate of Brooks,
32 Mli. 2d 361, 362, 205 N.E.2d 435, 436-37 (1965), for a summary of Jehovah's Witness
doctrine and authorities. See also Comment, Unauthorized Rendition of Lifesaving Medical
Treatment, 53 Calif. L. Rev. 860 (1965); 77 Harv. L. Rev. 153
concerned, the quasi-intervenor must urge his standing without the
benefit of leisurely judicial reflection. The quasi-intervenor must demand a
quick decision on both his standing and the merits of compelling medical
treatment, for whether the quasi-intervenor is the spouse of the patient,
the attending physician and the hospital or some public guardian, the
patient's life hangs in the balance, and procedural delay is apt to moot
the compulsion issue by the patient's death-thereby raising potent, if
secular issues, of liability and damages.
While the general issues of compulsory medical treatment are easily
available for vigorous and circular discussion in the abstract surroundings
of classroom, convention or cocktail party, it is difficult to arrange the
issues in such an order that one can dispose of one issue before moving
to the next-and to keep the dispositions stable in the light of later issues.
Practical men of affairs like physicians, hospital administrators, and the
legal and spiritual advisors of hospitals need to have a systematic means
of deciding individual cases of refused lifesaving treatment. If the patient
appears to be mentally competent to decide on transfusion or other
treatment, then his refusal must be found disproportionately dangerous to the
treatment and the hospital must decide that lifesaving treatment should
be compelled; and only then are the hospital, the next of kin, and the
State tested for the role of quasi-intervenor in the patient's case.
II. THE PATIENT'S COMPETENCE
A threshold issue must be settled before entering the discussion of
quasi-intervention: the patient's mental competence to refuse treatment.
The possibility of incompetency was carefully planted in Judge Wright's
opinion in the most celebrated transfusion case, Application of the
President and Directorsof GeorgetownCollege, Inc.2 In this case, Judge Wright
ordered transfusion after a bedside confrontation of the ulcer patient, her
husband and the hospital personnel, but he did not explicitly rely on the
fact of incompetency.3 If the patient is not mentally competent, whether
because he is semi-conscious,4 psychotic, a minor, or under a
MEDICAL TREATMENT AND
created guardianship, 6 the established machinery will be set in motion
for appointing some competent person to decide the treatment question
in spite of the patient's apparent objections.' The refusal of routine
lifesaving treatment should not be taken as per se evidence of mental
incompetency,' though it may be difficult to decide competency in a given
case, and any person (except a judge) who decides both wrongly and
negligently that the patient is not competent may be liable for provable
Something like incompetency per se would explain the intervention
which has been permitted to the State where a competent adult's
death from refused treatment would leave his or her children pro tanto
unsupported. The dying spouses had minor children in two cases9
and the child was still in utero in another,' ° but the children were
grown and gone in two others." Surely the State has a duty to
save the life or health of a child who is threatened by parental
neglect," but whether this duty extends so far as saving the parent's
life against his will is a matching of policies which has never been
squarely decided, though it has been mentioned as something more
than a makeweight where the children were minors. At best the State's
interest in preserving two spouses to care for their children instead of one
seems attenuated; one wonders if it would be a stronger interest if a sole
surviving parent's life were at stake, so that public guardianship of the
minors became an imminent reality.
III. JUsTIcIABILITY AND STANDING IN GENERAL
Assuming the mental competency of the refusing patient, any person
who goes into court to compel the patient to accept treatment faces
serious difficulties in legal concepts. The quasi-intervenor has problems
both in the "justiciability" of the issue of compulsory treatment and in
his "standing" to ask to represent the patient and probably consent to
treatment for him. Standing and justiciability are often used
interchangeably, and the terms need not always be differentiated.' 3 But the terms can
be distinguished when the occasion demands, and the compelled blood
transfusion cases demand the distinction: whether intervention will be
allowed or not is a justiciability question, as two judges of the District of
Columbia Circuit thought.' 4 However, whether a particular
quasi-intervenor has the necessary interest is a standing question, and this is a
In determining whether a party has standing to sue, the court asks this
question: Does the party have a direct and perceptible interest which he
is entitled to require the court to enforce?a In cases and controversies
brought in federal courts, standing to sue is closely related to the
justiciability of issues, but in state courts, where justiciability may receive
broader treatment, such statements as that "every action shall be
prosecuted in the name of the real party in interest"' 0 put more stress on
standing. In a state court of general jurisdiction, a thoroughly justiciable
issue can go unadjudicated, if the real parties in interest decline to try it
and no would-be intervenor has the requisite standing. This idea,
moreover, can be applied to the patient who refuses medical treatment.
Non-justiciability is easier to describe than justiciability: a dispute
may be too abstract, premature or moot,'7 or the parties may not be truly
adverse, or a judicial order in the cause may not be enforceable."8 The
inward dispute of a Jehovah's Witness does not fit conveniently into any
of these categories, and while for later argument one must assume that
the dispute is justiciable, indeed it may not be. Between a dying patient
and his conscience, the blood-transfusion issue is neither abstract nor
premature, though to the patient the issue is properly justiciable in a
forum spiritual rather than temporal. The patient sees no adverseness
between his position and his scriptural interpretations; and while a
judicial order to transfuse the patient will be enforced, its enforceability
subsumes the preceding defects of justiciability in a most circular manner.
Here the connection between justiciability and standing must be
acknowledged again; for practical purposes of litigation, no issue of
justiciability can come before the court unless some party has standing to raise
it. Nevertheless, may it not be usefully determined in the abstract that
some disputes are not justiciable no matter who brings them up? In the
blood transfusion situation, an abstract determination of non-justiciability
would thus cause immediate dismissal of any application by a
quasiintervenor, or at least of some classes of applications. Such a rule would
dispose of enough difficult cases, chiefly those of dying but competent
adults, to be worth having. Only Illinois has so ruled to date. 9
Assuming, however, that it is impracticable or unwise to dispose of the
standing question in the abstract, by saying that no person can be a
quasi-intervenor in the non-justiciable question of the competent adult's
right to refuse medical treatment, it becomes necessary to define and
classify the possible quasi-intervenors and to arrange the classes in an
order to suggested eligibility, before advancing an opinion on whether any
quasi-intervenor's interests merit giving him standing.
IV. THE STANDING OF HOSPITALS
The person or institution having physical custody of the non-ambulatory
patient feels acutely the embarrassment of his refusing lifesaving
treatment. If the custodian is a spouse or relative, either he is sympathetic to
the patient's wishes and leaves the patient alone, raising no question of
competency or lifesaving treatment, or he is unsympathetic or frightened
and usually feels impelled to have the patient placed in the custody of a
hospital. While physicians make the medical judgments, it is the hospital
that houses the patient; the hospital must bear the consequences of action
or inaction. °
19. In re Estate of Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965) (mootness through
recovering health held to be no impediment to decision).
20. Hospitals are usually the moving parties in judicial proceedings, either as business
organizations, Georgetown Hospital Case, 331 F.2d 1000 (D.C. Cir.), rehearing denied, 331 F.2d
1010 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964); Raleigh Fitkin-Paul Morgan Memorial
There is much to be said for giving the hospital as custodian a free
hand to save its patients' lives when the staff physicians think that
lifesaving is possible. The physicians' rule, primum non nocere, first do no
harm, will of course mean that by soliciting hospitalization the patient
implicitly gives up his choice between ordinary means of lifesaving
treatment and probable death or his power to tell the physician to employ a
procedure that is unnecessarily dangerous-as by consenting to stomach
or heart surgery but refusing standby blood transfusion." The hospital's
lifesaving power need not unduly shrink the patient's power to premise
ordinary treatment and surgery upon his consent.22 Nor will hospitals
understand that they have the power of unlimited lifesaving of human
vegetables; extraordinary care of indefinite duration for terminal patients
is a commitment of hospital and medical resources not likely to be made
over the patient's objection. The line that separates ordinary lifesaving
treatment for patients who will get well from extraordinary life-extending
treatment for patients who will not get well may shift with medical
experience. Nevertheless, drawing the line is a commonplace decision for
medical staffs, and the cases in which hospitals are eager to compel
medical treatment, on good medical advice, are likely to remain the easy
cases in the technology of saving useful lives.
So far the hospital has been regarded as an actor in medicine, rather
than being a participant in legal proceedings. Need the hospital's role of
quasi-intervenor receive judicial approval?
In the Georgetown Hospital case2 3 a Judge of the United States Court
of Appeals ordered a blood transfusion, which was administered by the
hospital staff with lifesaving results, but the entire court en banc agreed
only to decline to rehear the case. Two judges thought that since no
complaint had been filed, no appealable issue was before the court. Five
judges thought that since the patient had recovered her health, the issue
was moot. And two judges thought that there was no justiciable case or
controversy. The result is a series of separate opinions on a non-case
Hosp. v. Anderson, 43 N.J. 421, 201 A.2d 537 (1964); In re Clark, 90 Ohio L. Abs. 21, 185
8 (Lucas County C.P. 1962
), by their administrators, State v. Perricone, 37 N.J. 463,
181 A.2d 751 (1962) (sup't of hospital); Collins v. Davis, 44 Misc. 2d 622, 254 N.Y.S.2d
666 (Sup. Ct. 1964) (sup't of county hospital); Erickson v. Dilgard, 44 Misc. 2d 27, 252
5 (Sup. Ct. 1962
) (sup't of county hospital), or by another representative of
the hospital, United States v. George, 239 F. Supp. 752 (D. Conn. 1965) (United States
Attorney on behalf of a Veterans Administration hospital).
21. See State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962); Erickson v. Dilgard, 44
Misc. 2d 27, 252 N.Y.S.2d 70
5 (Sup. Ct. 1962
22. See Comment, Unauthorized Rendition of Lifesaving Medical Treatment, 53 Calif. L.
Rev. 860, 862-65 (1965).
23. 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964).
having no authoritative force approving or disapproving hospital-sought
compelled transfusions in the District of Columbia. Another case of
compelled transfusion 24 concerned a pregnant woman; it invoked the power
of the State of New Jersey on behalf of the incompetent and unborn
infant to preserve its life by saving its mother's. Beyond that, while the
law declared clearly favored an injunction to transfuse if the medical
need arose, the issue was mooted by the mother's leaving the hospital. In
two other cases hospitals sought and secured court orders compelling
blood transfusions, the transfusions were administered, and the opinions
have not been undercut. In one case the patient was in a Veterans
Administration hospital, and so the hospital used a United States Attorney to
apply for the temporary restraining order under which the patient was
transfused; 25 in the other case the patient was in a private hospital, which
was joined by the plaintiff husband as a nominal defendant.20 In summary,
whether a hospital really needs judicial approval for compulsory
transfusions or not, four cases say that it can get it.
Even though the discussion here is concerned primarily with legal
duties, liabilities, and procedures, it would be unrealistic to overlook the
ethical and institutional concerns of the hospital in wanting to administer
ordinary lifesaving treatment to all its patients. A hospital is not the
patient's servant, subject to his orders. The hospital shares the
physician's independence of judgment and responsibility for action, and to let
a patient die runs counter to the reason for the hospital's existence.'
Furthermore, Georgetown Hospital is a religious institution, and the
Ethical and Religious Directives for Catholic Hospitals' provide explicitly
that "the failure to supply the ordinary means of preserving life is
equivalent to euthanasia, 9 and "[e]uthanasia [mercy killing] in all its forms
is forbidden."30 Hence, to withhold blood transfusions is a moral wrong
on the part of the decision-makers in a Catholic hospital, regardless of
what the patient wants done. And a non-religious hospital breaches its
ethical commitment to lifesaving in letting a patient die when he could
easily be saved. Hospitals simply do not lend their facilities to this kind
of behavior, quite apart from whether the criminal law might regard the
patient's conduct as suicide.
Whether the hospital's inner compulsion toward lifesaving is ethical or
religious in the senses used here, hospitals' announced concern is likely
to be legal liability-not because a hospital stands to lose liberty or
property in saving a patient's life against his will, as long as it does not
bungle the job, but because hospitals usually are not articulate in ethics
and religion, and because raising the threat of being sued unifies a
constellation of vague laymen's fears about The Law into a widely
appreciated specter. Hence the lawyers and the judges get the unwanted job of
deciding whether to transfuse or not. As one trial judge commented
despairingly, after ordering a transfusion: "How legalistic minded our
society has become ... 1"1'
V. THE STANDING OF THE NEXT OF KIN
A hospital receives little of legal value when either a competent patient
or his next of kin signs a paper purporting to relieve the hospital of
liability for not administering refused treatment.32 The patient himself, in
waiving liability of the hospital and its attending physicians by signing
a paper so stating, cannot "release" a claim, such as an action for
negligence, because such a release-in-advance would be unenforceable, " and
because no claim has yet arisen. The waiver is not "consent" to treatment,
either. Quite the contrary, it evidences lack of consent to the treatment
proposed. As a non-consent, then, waiver must operate legally very much
like an express assumption of risk, and it would presumably be regarded
judicially much like a contract not to sue in consideration of the promise
not to transfuse.
If the patient waives his anticipated lawsuit in return for an
unencumbered conscience, what is the function of having the next of kin sign
also? The next of kin, whether spouse, parent, child or some more remote
relative, is not ipso facto the patient's legal guardian.3 4 This rule of law
impairs the capacity of the next of kin to do acts which legally bind the
presumably competent patient, and even a legal guardian cannot
automatically elect medical treatment in the best interest of the ward patient
over the patient's previously competent and express refusal to treatment.
Apparently the signing of the waiver by the next of kin has only
evidentiary value in case of a lawsuit based upon non-waiver by the patient. The
signed form3 5 enables the hospital first to argue that the patient's refusal
of treatment was competent, but second, if that fails, the hospital can
argue that the next of kin knew the patient's wish for non-treatment
while he was competent. In either defense the next of kin would be
witnesses to what was on the patient's mind, and the hospital hopes that the
next of kin would neither sign a waiver lightly nor repudiate it easily.
Oftentimes the next of kin do not want lifesaving treatment if the patient
refuses it. Husbands and wives often share the same views, and neither
the husband in the Georgetown Hospital case3" nor the wives in United
States v. George37 and Collins v. Davis8" would authorize lifesaving
treatment as next of kin. And so in all three cases the
treatment-transfusion in the first two, surgery in the third-was administered under court
orders obtained by hospitals; the courts evidently prefer lifesaving
intervention by hospitals to the life-risking wishes of patients and their next
of kin. But husbands and wives also disagree sometimes, and in one case
te husband sued his wife and her hospital in order to force a blood
transfusion; the judge obliged the husband.3 9 One wonders what shred of
legal value attaches to waivers when the next of kin disagree among
themselves. Such an intra-familial quarrel, as much as doubts of the wisdom
of surgery, apparently moved a New York trial judge to throw a dispute
among three sons over amputating their mother's ankle out of his
courtand back to the hospital, of course. 0
(infant) ; In re Nemser, 51 Misc. 2d 616, 273 N.Y.S.2d 624 (Sup. Ct. 1966) (S0-year-old in
diabetic confusion). See 43 N.C.L. Rev. 450, 453-55 (1965).
35. The American Medical Association's booklet, Medicolegal Forms (1961), suggests this
text: "Refusal to Permit Blood Transfusion": "I (We) request that no blood or blood
derivatives be administered to [name] during this hospitalization, notwithstanding that such
treatment may be deemed necessary in the opinion of the attending physician or his assistants
to preserve life or promote recovery. I (We) release the attending physician, his assistants,
the hospital and its personnel from any responsibility whatever for any untoward results
due to my (our) refusal to permit the use of blood or its derivatives." Id. at Form 36.
36. 331 F.2d 1000, 1006-07 (D.C. Cir.), rehearing denied, 331 Fid 1010 (D.C. Cir.),
cert. denied, 377 U.S. 978 (1964).
37. 239 F. Supp. 752, 75
3 (D. Conn. 1965
38. 44 Misc. 2d 622, 254 N.Y.S.2d 666 (Sup. Ct. 1964).
39. Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.YS.2d
50 (Sup. Ct. 1965
40. In re Nemser, 51 Misc. 2d 616, 273 N.Y.S.2d 624 (Sup. Ct. 1966). See also United
VI. THE STANDING OF THE STATE
Does the State-a city, county, or state government, or the United
States in some circumstances-presently have such an interest in
preserving the lives of its citizens as to stop their dying prematurely? The
State's intervention as parens patriae of incompetents still lies outside
the discussion.4 1 Here the question is whether, as in In re Estate of
Brooks,42 State power operating through a public or an ad hoc guardian
should be invoked in order to transfuse the competent patient against his
will; Illinois stands thus far alone in saying No.
Ultimately the question of State power is one of professional judgment
in the exercise of political authority. Just as a lawyer knows how to tie up
a testator's property for about a hundred years but often decides not to
do so, and a surgeon knows how to improve the function of an arthritic
hip joint but thinks on balance that the patient will get along as well
without surgery, the State probably has the parental power to compel the
ordinary means of lifesaving medical treatment to be administered, but
the State may be better advised not to use the power, at least for the time
being. Labor is not in such short supply, the problem is not of such
common occurrence, and the American citizen's duty is not so singly to serve
his State, that individual decisions to decline lifesaving medical treatment
need to be overruled. It is possible if strained43 to frame this attitude in
terms of the patient's free exercise of religion, but free exercise is usually
understood to permit thought and expression rather than antisocial
actions. One doubts that free exercise is constitutionally protected as being
more in the mind than in the musculature when the consequence of belief
in declining blood transfusion is as surely death as the prohibited action
of slashing an artery. And even if free exercise is a satisfactory ground,
it is too narrow to allow non-religious persons who simply hate medicines
and hospitals to fend off the State, though it works as an explanation for
all the cases raised to date.44
States v. George, 239 F. Supp. 752, 75
3 (D. Conn. 1965
), where the husband-patient and
his wife, both Jehovah's Witnesses, refused transfusion, but the husband's mother, who was
not a Witness, favored transfusion.
41. See the cases cited in Judge Wright's opinion in the Georgetown Hospital Case, 331
F.2d 1000, 1007 (D.C. Cir.), rehearing denied, 331 F.2d 1010 (D.C. Cir.), cert. denied, 377
U.S. 978 (1964). As to infants, see In re Clark, 90 Ohio L. Abs. 21, 185 N.E.2d 12
County C.P. 1962
). See also 14 Syracuse L. Rev. 84 (1962); 10 Villanova L. Rev. 140
42. 32 Ill. 2d 361, 205 N.E.2d 435 (1965).
43. Id. at 370-73, 205 N.E.2d at 440-42; see the exhaustive Note, 42 Indiana L.J. 386
44. Sep 77 Harv. L. Rev. 1539, 154
It is doubly a pity that the courts have become involved in the deciding
of compelled lifesaving medical treatment, firstly because quick decisions
on hard questions are not delivered very adeptly by the judicial process,
and secondly because the quasi-intervenors, whoever they are, ask the
courts for legal relief which they cannot really have-the immunity from
Here the last of the commonplace reasons for courts to decline cases
for non-justiciability comes into operation, the unenforceability of
whatever relief the court adjudges to the plaintiff. When a Jehovah's Witness
declares that it is no sin for him meekly to accept a blood transfusion
ordered by a court of competent jurisdiction, 5 it is not for any court to
declare that the Witness is immune from the damnation he feared before
the order was made. When a hospital transfuses a patient under a court
order, how much more than an advisory opinion can the order ever be?
If the patient sues for battery, does the clerk of court refuse to accept
the complaint? Of course not; the hospital and its staff have no immunity
to suit, even though the judge may summarily find for defendants as soon
as they produce the court order to transfuse. And if the court-ordered
procedure is bungled or if some unordered and unconsented-to procedure
is employed, what then of the order? It is revealed as a declaratory
judgment of scope limited to matters not in suit, offering the defendant
hospital and staff no defense, let alone immunity to suit.
This is not as bad as it may sound to the hospital and staff.
Administrators and physicians will simply have to live without the hope of legal
immunity; they can go on getting intelligent consent to treatment from
the great majority of patients, listening to refusals of treatment from a
very few, making up their minds to treat or not to treat as a
technicalethical question, letting the lawyers worry about the legal consequences
of their actions after they act.
The quarrel of Jehovah's Witnesses seems to be with the courts as
representatives of government power, not with the hospitals as payers
of damage judgments. While the medical emergencies producing
courtordered transfusions have been genuine, the legal proceedings have been
test cases having for their ultimate destination the Supreme Court of the
United States. The Supreme Court, however, has thus far declined to
review any such case,"8 and no damage suit for negligence or battery has
been brought by a transfused Jehovah's Witness, probably because of the
difficulty of framing the desired constitutional issues by that means. 7
This difficulty should continue to protect hospitals from suit.
Assuming, however, that an ex-patient can find a basis for asserting
hospital liability, the damages potentially recoverable for non-transfusion
are much greater than for transfusion done with the requisite care. It is
hard to visualize a jury awarding more than nominal damages for
battery4" to a live Jehovah's Witness, but not at all difficult to imagine a
wrongful death award for negligently failing to employ the usual means
of lifesaving care if a hospital guessed wrong about competency to refuse
treatment. As for criminal sanctions, such as assault and battery for
transfusing without consent, these seem unlikely to attract the notice of
prosecuting attorneys, let alone juries, though they are theoretically
possible; and most hospital staff members would probably prefer this trifling
risk to that of refusing transfusion and thereby becoming accessory to
suicide,4 9 whether that is a crime or not."0
The social institutions which provide hospitals-medicine, religion and
government-all protect the physician and hospital from legal harm in
saving useful lives easily within the reach of medical technology. Hospital
medical staffs and administrators should realize this and take courage to
act accordingly in favor of life; and persons who from religious beliefs or
dislike of hospitals seek to tie the lifesavers' hands should stay out of
hospitals when their time has come. But there is no immunity from the
test cases that Jehovah's Witnesses will go on raising, cases in which the
patients, the hospitals and the courts are the victims, and only the law
reviews find earthly reward.
2. 331 F. 2d 1000 (D.C. Cir .), rehearing denied, 331 F. 2d 1010 (D.C. Cir .), cert. denied, 377 U.S. 978 ( 1964 ) [hereinafter cited as Georgetown Hospital Case] . See also Annot. , 9 A.L.R. 3d 1391 ( 1966 ).
3. 331 F.2d at 1008. See also United States v . George , 239 F. Supp . 752 , 753 (D. Conn . 1965 ).
4. Collins v. Davis, 44 Misc. 2d 622 , 254 N.Y.S.2d 666 (Sup . Ct. 1964 ) (surgery not specified ).
5. In re Clark, 90 Ohio L. Abs. 21 , 185 N.E.2d 128 ( Lucas County C.P . 1962 ); Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 , 201 A.2d 537 ( 1964 ), cert. denied, 377 U.S. 985 ( 1964 ) (unborn child).
6. In re Nemser, 51 Misc. 2d 616 , 273 N.Y.S.2d 624 (Sup . Ct. 1966 ) (even for the special and limited purpose of determining mental competency to consent to an amputation) .
7. It would seem exceedingly remote that such a representative would decide against treatment, but this happened in In re Nemser , Id.
8. The patient was explicitly found competent in Erickson v . Dilgard, 44 Iisc. 2d 27 , 252 N.Y.S.2d 705 (Sup . Ct. 1962 ).
9. Georgetown Hospital Case, 331 F.2d 1000 , 1006 (D.C. Cir . 1964 ) (one seven-months infant) ; United States v . George , 239 F. Supp . 752 ( D. Conn . 1965 ) (four children) ; treatment was compelled in both cases . See 41 Wash. L. Rev. 124 ( 1966 ).
10. Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 , 201 A.2d 537 ( 1964 ).
11. In re Estate of Brooks, 32 Ill. 2d 361 , 205 N.E.2d 435 ' (196S) ; In re Ncmser , S1 Misc. 2d 616 , 273 N.Y.S.2d 624 (Sup . Ct. 1966 ) (orders to compel treatment were denied in the latter case and held erroneous in the former ).
12. See the discussion and cases cited in the Georgetown Hospital Case , 331 F.2d 1000 , 1007 -08 (D.C. Cir . 1964 ).
13. "The requirement of standing is often used to describe the constitutional limitation on the jurisdiction of this Court to 'cases' and 'controversies.'" Barrows v . Jackson , 346 U.S. 249 , 255 ( 1953 ).
14. Georgetown Hospital Case, 331 F.2d 1010 , 1015 (D.C. Cir . 1964 ) (dissenting opinion).
15. Massachusetts v. Mellon , 262 U.S. 447 ( 1923 ).
16. Fed . R. Civ . P. 17 ( a ).
17. In spite of the patient's recovering his health as mooting a transfusion order, Illinois has ruled that these cases are non-justiciable, chiefly for reasons of free exercise of religion . In re Estate of Brooks, 32 Ill2.d 361 , 205 N.E.2d 435 ( 1965 ). See also People ex rel . Wallace v. Labrenz , 411 Ill6 . 18 , 104 N.E. 2d 769, cert . denied, 344 U.S. 824 ( 1952 ) (infant). New Jersey has ruled that mootness is no bar to finding judicial power to order transfusion of a mother to save a child in utero , Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 , 201 A.2d 537 ( 1964 ), cert. denied, 377 U.S. 985 ( 1962 ) (the mother left the hospital by the time the case was argued), or to preserve the life of a child with congenital heart malformation, State v . Perricone , 37 N.J. 463 , 181 A.2d 751 ( 1962 ), cert. denied, 371 U.S. 890 ( 1964 ) (the child had died before argument). The District of Columbia Circuit is split on whether the patient's 'ecovery moots the issue or not . Georgetown Hospital Case , 331 F. 2d 1000 (D.C. Cir .), rehearing denied, 331 F. 2d 1010 (D.C. Cir .), cert. denied, 377 U.S. 978 ( 1964 ). See 39 N.Y.U.L. Rev. 706 ( 1964 ).
18. See the summary in Mr.Justice Douglas' separate opinion in Public Affairs Associates, Inc . v.Rickover, 369 U.S. 111 , 114 ( 1962 ).
24. Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 , 201 A2d 537 ( 1964 ) ; 33 Fordham L . Rev . 80 ( 1964 ).
25. United States v. George , 239 F. Supp . 752 ( D. Conn . 1965 ).
26. Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215 , 267 N. YS . 2d 450 (Sup . Ct. 1965 ).
27. This argument impressed the District Judge in United States v . George , 239 F. Supp . 752 , 754 (D. Conn . 1965 ), but not Circuit Judge Burger in the Georgetown Hospital Case, 331 F.2d 1010 , 1015 -18 (D.C. Cir . 1964 ).
28. Published by the Catholic Hospital Ass'n of the United States and Canada (2d ed. 1955 ).
29. Id . at 5, Rule 22.
30. Id . at 5, Rule 21.
31. Markowitz , J., in Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215 , 216 , 267 N.Y.S.2d 450 , 452 (Sup. Ct. 1965 ). See also his extended remarks on the same subject, though declining to order an amputation , in In re Nemser, 51 Misc. 2d 616 , 620 - 25 , 273 N.Y.S.2d 624 , 628 - 32 (Sup. Ct. 1966 ).
32. Such papers were mentioned in the Georgetown Hospital Case , 331 F.2d 1010 , 1015 -16 (D.C. Cir .), rehearing denied, 331 F. 2d 1010 (D.C. Cir .), cert. denied, 377 U.S. 978 ( 1964 ) ("waiver" proposed by patient and husband but not signed); United States v . George , 239 F. Supp . 752 , 753 (D. Conn . 1965 ) ("release" signed) ; In re Estate of Brooks, 32 111.2d 361 , 362 , 205 N.E.2d 435 , 437 ( 1965 ) ("release" signed).
33. See Tunkl v. Regents of the Univ. of Calif., 32 Cal. Rptr . 33 , 383 P.2d 441 ( 1963 ).
34. When time permits, the usual procedure is for the next of kin to ask the court to appoint a guardian ad litem, as was done in People ex rel . Wallace v. Labrenz , 411 II1 . 618 , 104 N.E.2d 769 ( 1952 ) (infant); State v . Perricone , 37 N.J. 463 , 181 A.2d 751 ( 1962 )
45. See United States v. George , 239 F. Supp . 752 , 753 (D. Conn . 1965 ).
46. Certiorari has been denied in Raleigh Fitkin-Paul Morgan Memorial Hosp . v. Anderson , 377 U.S. 985 ( 1964 ) ; Georgetown Hospital Case, 377 US . 978 ( 1964 ) ; State v . Perricone , 371 U.S. 890 ( 1962 ); People ex rel Wallace v . Labrenz , 344 US. 824 ( 1952 ).
47. See the speculation in 77 Harv . L. Rev. 1539 , 1541 n. 7 ( 1964 ).
48. In a battery action the justification of emergency would be a defense for the hospital, though it does not seem to have been employed in these circumstances . See 45 B.U.L. Rev . 125 , 127 n. 13 ( 1965 ).
49. There is much doubt that a declaratory judgment could impede criminal prosecution in any case . See 77 Harv. L. Rev . 1539 , 1543 ( 1964 ).
50. See 33 Fordham L. Rev . 513 ( 1965 ).