IN THE MATTER OF THE APPOINTMENT OF A SPECIAL MEDICAL GUARDIAN FOR G.S

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4907-09T2

IN THE MATTER OF THE

APPOINTMENT OF A

SPECIAL MEDICAL GUARDIAN

FOR G.S.

_________________________________

Argued April 11, 2011 Decided May 25, 2011

 

Before Judges Sabatino, Alvarez, and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Camden County, Docket No. C-117-09.

 

Lorraine Gormley-Devine, Assistant Deputy Public Defender, argued the cause for appellant G.S. (Yvonne Smith Segars, Public Defender, attorney; Ms. Gormley-Devine, on the brief).

 

Joseph J. Bennie argued the cause for respondents R.S. and C.S. (Bennie & Bennie, P.C., attorneys; Thomas J. LaMaina and Mr. Bennie, on the brief).

PER CURIAM

Following an evidentiary hearing at which several medical experts testified, the trial court issued an order on June 11, 2010 designating the parents of G.S., a developmentally-disabled minor who was then fifteen years old, as her special medical guardians for the specific purpose of authorizing a laparoscopic hysterectomy for their daughter for reasons of medical necessity. In particular, the parents sought the appointment based upon the advice of their daughter's physicians, as a means to alleviate her suffering from repeated seizures that occurred during her menstrual cycle. Thereafter, intervenor, the Division of Mental Health and Guardianship Advocacy ("the Division"), sought emergent appellate relief to stay the parents' appointment and the surgical procedure, pending appeal. The emergent applications were denied, first, by a panel of this court, and ultimately, by an order of the Supreme Court on July 8, 2010. The hysterectomy was subsequently performed, which reportedly improved G.S.'s symptoms.

Despite the fact that the surgery has been performed and the need for a special medical guardian for that purpose has lapsed, the Division continues to pursue the present appeal. It advocates, among other things, that this court should repudiate the procedures that the trial court followed in this case and prospectively fashion more stringent procedures and standards for the appointment of special medical guardians in comparable circumstances. Regardless of the potential wisdom of such proposed measures, we dismiss this appeal as moot, and instead leave the Division's policy recommendations to be considered in either the legislative or rule-making arenas.

Because the appeal is moot, we need not describe the facts and procedural history at length. We only recite a few of the most salient events and circumstances.

G.S. was born in 1995. It is undisputed that she has had severe developmental limitations her entire life. She cannot talk, walk, or feed herself. As diagnosed by her treating neurologist,1 G.S. has "refractory mixed epilepsy, severe mental retardation, motor handicapped, with a static motor deficit[.]" These multiple deficits, according to the neurologist, stem from the fact that G.S.'s brain did not form properly, leading to what he termed as "cerebral dysgenesis." The neurologist estimated that although G.S. was chronologically the age of fifteen, her development was "no greater than [that of] an approximately two or two and a half year old at the most."

G.S. attends a school for children with disabilities and, according to her mother, needs to be watched at all waking moments. The mother also testified that, despite G.S.'s limitations, she is capable of expressing, and does express, pain, in non-specific ways such as crying, screaming, pinching or pulling the hair of others, and banging her head against a wall. As part of her underlying condition, G.S. has suffered from seizures from an early age.

The medical issues leading to this proceeding arose when G.S. began menstruating at age eleven, causing the child great discomfort on a monthly basis. Approximately one year later, G.S.'s neurologist referred the family to an adolescent specialist to discuss different possible treatment options, given G.S.'s unique circumstances. The adolescent specialist initially prescribed the contraceptive injection Depo-Provera, however, the initial effect of the drug appeared negligible, as G.S.'s periods "just got worse and worse and worse, because she ha[d] a lot a lot of pain with her period. She [wa]s very uncomfortable. She [wa]s irritable."

Shortly thereafter, while the family was on a vacation in Florida, the adolescent specialist received an urgent call from G.S.'s mother stating that the child "ha[d] been bleeding for [twenty-one] days straight[.]" The adolescent specialist immediately prescribed birth control pills, which "did help for the [remainder] of the trip." Upon returning to New Jersey, the family again met with the adolescent specialist who referred them at that point to an OB/GYN specialist. Meanwhile, G.S.'s seizures generally worsened and increased in frequency.

At their initial visit, the OB/GYN specialist met with G.S. and her parents and reviewed the child's medical file. He concluded that, "in a nutshell, [G.S.'s] problem was bleeding that had to be controlled that seemed to be manifesting with increased irritability . . . . the assumption is that there is menses and a change in behavior [and] some component of pain." The OB/GYN specialist administered a third scheduled Depo-Provera injection and kept the child on birth control pills. Even with two forms of birth control, however, G.S. still experienced irregular bleeding. The injections were discontinued in favor of continuous birth control pills, which reduced but did not eliminate her "break-through bleeding," but also appeared to increase the frequency of G.S.'s "absence seizures."

G.S.'s menses-related seizures continued, despite the use of three prescribed anti-seizure medications. In an attempt to control the seizures, she was placed on a special diet and, on November 2, 2006, a Vagal Nerve Stimulator ["VNS"] was implanted into her chest and neck.2 As reflected in the office reports of G.S.'s neurologist, the child's seizures continued to "cluster" around the time of her menstruation. Addressing her reproductive health was thus seen as the "last hurdle" to further reducing the amount of seizures.

The OB/GYN found that G.S.'s "risk for aspiration and pneumonia" was of "grave concern" and therefore a hysterectomy presented a

minimalist way to have a long-term solution to the problem. [Otherwise] it's medical management forever back and forth, try adjusting. . . . [B]irth control pills [also] affect seizure meds. So the other dilemma . . . with taking birth control pills is that you're always adjusting your meds. You have to take levels, draw blood, you know, check where you are[.] . . . [T]he only long-term solution I could come up with for complete amenorrhea so [she would be] off the medication completely is to do a supracervical hysterectomy.

 

The OB/GYN specialist proposed removing the fundus of the uterus, while leaving the cervix and ovaries intact.

In August 2008, the OB/GYN specialist brought the family before the hospital's Bioethics Committee to seek its formal approval for the procedure. In addition to the regular committee members, G.S.'s case was also heard by an independent OB/GYN, two developmental psychologists, and the hospital's Senior Vice President and counsel. The meeting consisted of "a discussion about [G.S.'s] medical condition and her case and what were the options and what [were] the alternatives." In finding the proposal ethically sound, the committee concluded that:

[The OB/GYN specialist's] recommendation is a laparoscopic hysterectomy to remove [the] uterus and leave the ovaries intact. It was noted removing the uterus will control bleeding but will not decrease seizures unless they are pain related. Risks of the procedure were discussed, including anesthesia and aspiration. [The OB/GYN specialist] would discuss [these] with [the pediatric anesthesiologist] prior to procedure. [The OB/GYN specialist] has discussed pain control with the [Pediatric Intensive Care Unit] team and is satisfied they have experience to handle. Her only previous surgery has been the VNS placement.

 

Optional therapies were discussed including:

Time - her menses may adjust

IUD - still bleeding issues

Lupron - short term (6-12 months) solution - risks of estrogen would need to be considered

Implanon - new and cannot predict

Thermal ablation of the uterus - will be a difficult procedure for her

 

The parents' greatest concern is [that] the current medical approach is impacting seizure control. The hysterectomy is not for the purpose of sterilization or hygienic purposes. If a medical approach controlled her pain and didn't interfere with seizure control they would not consider the surgical option.

 

The representatives from the [State] Division of Developmental Disabilities had no questions or concerns with the proposed surgery. They indicated there was no action required on their department's part.

 

Members present did not believe there were any ethical issues raised. The procedure is for medical purposes. As the patient is not capable of consenting, it appears the best interests and safety of the patient are being considered.

 

Determination of whether a court order is required will be made after discussion with Hospital Counsel. The parents were advised to seek legal advice as well even if Hospital Counsel believes a court order is not required. The Hospital['s] position will be communicated to the parents within the next few days.

 

Ultimately, the hospital requested that the parents obtain a court order authorizing the hysterectomy. Consequently, G.S.'s parents filed a complaint in the Chancery Division seeking to be appointed G.S.'s special medical guardians and to secure the court's consent to the proposed treatment.

On August 19, 2009, the court appointed a Guardian Ad Litem ("GAL") for G.S. On October 11, the GAL provided an interim report for the court's review, in which he related that he had observed G.S. and that he had met with the family in their home on September 16. The GAL concluded that the child "appeared well taken care of by her parents." Additionally, the GAL discerned

a very loving relationship. Even while we were talking, [the mother] was watching [G.S.] with her therapist. [G.S.] is never left unattended and has no ability to care for herself. It is clear to me that[,] after a long discussion on all the issues, [the parents] are not making this request for their own convenience. They are doing all they can for their child and they want to end her pain. Since all other alternatives have either failed or have caused more severe problems, this last drastic measure is the only way they know to help [G.S.]

 

The GAL indicated that he also spoke with the OB/GYN specialist and the neurologist, both of whom reviewed G.S.'s medical history and the rationale behind the proposed procedure. After these discussions and a review of their certifications, the GAL agreed that "the performance of the surgery requested upon [G.S.] would be in her best interest." He therefore concluded that G.S.'s parents should be appointed the child's special medical guardians.

On October 21, 2009, the GAL wrote to the Department of the Public Advocate, noticing it of the underlying litigation "to allow . . . an opportunity to intervene if necessary." He also included a copy of G.S.'s medical file. Ibid. The Division responded in November 2009 with a letter brief. It indicated the Division would seek to formally intervene in the matter, but that, "in the interest of judicial economy, we thought it prudent to alert the [c]ourt prior to that date of certain procedural safeguards that must be in place by the time of the hearing." Initially, the Division also sought to have G.S. provided a court-appointed attorney "distinct from the [GAL]" pursuant to Rule 4:86-4(d), which provides that "a [GAL] may, in addition to counsel, be appointed to evaluate the best interests of the alleged incapacitated person[.]" Additionally, the Division sought to have independent medical experts appointed to evaluate the child.

At some point in December 2009, the Division's request for independent counsel was granted and the matter was then assigned to an attorney from the Division. The Division's application for court-appointed independent experts, however, was denied.

The trial began on May 18, 2010. G.S.'s mother, the neurologist, and the OB/GYN specialist all testified and explained, essentially for the reasons that we have already canvassed, why the sterilization procedure was being sought and why it was in G.S.'s best interest.

In opposition, the Division presented expert testimony from a clinical associate professor of gynecology. The Division's expert opined that the hysterectomy was not yet necessary because, in her view, there had been insufficient attempts to abate G.S.'s seizures and symptoms through non-surgical means. However, on cross-examination, the Division's expert acknowledged that neither thermal ablation, i.e., burning away the uterine lining by laser, nor insertion of an intrauterine device ("IUD") would necessarily alleviate G.S.'s pain. She conceded that a hysterectomy might reduce the child's pain, but she maintained that new sources of pain might arise if the procedure caused her to develop "pelvic and abdominal adhesions." The Division's expert also conceded that the birth control pill could impact the effectiveness of one of G.S.'s seizure medications, however, she suggested that the better approach was to continue to adjust the seizure medication rather than to perform a hysterectomy.

After considering these proofs and summations from counsel, the Chancery judge, Mary Colalillo, concluded that G.S.'s parents had "clearly and convincingly sustained their burden of proof that [G.S.] is incapacitated and will be so for the remainder of her life, and that they should be appointed her Special Medical Guardians to authorize the requested surgery, as it is in her best interest." In the course of her detailed analysis, Judge Colalillo applied, by analogy, several of the factors expressed by the Supreme Court in In re Grady, 85 N.J. 235 (1981), a case involving the requested sterilization of a developmentally-disabled teenager for purposes of preventing her from becoming pregnant rather than, as here, a claim of medical necessity unrelated to a goal of sterilization. Among other things, Judge Colalillo noted that the medical necessity of the hysterectomy had been proven "clearly and convincingly" as "birth control pills have proven to be ineffective in controlling her problems and they also interfere with the effectiveness of her seizure medicines. Nothing other than the minimally invasive laparoscopic hysterectomy will provide [G.S.] with a permanent solution." The court found that the parents had not taken the decision lightly and that they had "conferred with doctors who have treated [G.S.] since infancy. They have participated in the Ethics Committee [hearing]. They have tried different drugs [and] a vagus nerve stimulator." The court noted that "[G.S.] should not have to continue to suffer for decades to come."

On June 11, 2010, a confirming order was entered. On June 14, the Division filed a notice of appeal. On June 15, it filed an emergent application for a stay of the trial court's order pending appeal. This court generally denied the request on June 18, but granted an interim stay until June 28, solely to enable the Division to take its application to the Supreme Court. See generally R. 2:9-8 (governing temporary relief in emergent matters by both the Appellate Division and Supreme Court). On June 23, the Supreme Court granted a temporary stay; however, the Court ultimately declined to grant the Division injunctive relief pending appeal and lifted the temporary stay on July 12.

Ten days later, on July 22, counsel for the parents wrote to the Division informing them that, in light of the Supreme Court's action, G.S.'s surgery had been scheduled. The parents' brief on appeal represents that the procedure was successful and the child is doing "absolutely wonderfully," with "greatly improved" symptomology.

This appeal ensued. The Division acknowledges that, with respect to the circumstances that led to the appointment of G.S.'s parents as special medical guardians, the present case is moot and devoid of ongoing controversy specific to this family. However, the Division nonetheless invites this court to consider this record in retrospect and then formulate, prospectively, enhanced procedures and standards to govern when special medical guardians should be court-ordered in future instances of claimed medical necessity for a hysterectomy. In particular, the Division raises the following points in its brief:

POINT I

 

SINCE THE COURT ORDERED HYSTERECTOMY OF A DEVELOPMENTALLY DISABLED ADOLESCENT IMPINGES FUNDAMENTAL CONSTITUTIONAL RIGHTS THE COURT MUST ADHERE TO STRICT PROCEDURAL PROTECTIONS AND NARROWLY DRAWN SUBSTANTIVE STANDARDS.

 

A. Hysterectomy Or Other Sterilization Procedure Forever Deprives A Child of Fundamental Reproductive Rights.

 

B. Sterilization of Developmentally Disabled Individuals Has a History of Overuse And Abuse.

 

C. A Hysterectomy Or Other Sterilization Of a Minor Child Does Not Fall Within Traditional Parental Authority and Requires Judicial Authorization.

 

 

POINT II

 

THE COURT BELOW MADE SEVERAL SIGNIFICANT PROCEDURAL ERRORS THAT DEPRIVED APPELLANT OF A FULL AND FAIR HEARING OF THE ISSUES PRESENTED IN THIS SPECIAL MEDICAL GUARDIANSHIP MATTER.

 

A. THE COURT BELOW FAILED TO APPOINT COUNSEL FOR THE ALLEGED INCOMPETENT AT THE OUTSET AS REQUIRED BY NEW JERSEY COURT RULES AND CONSIDERATIONS OF DUE PROCESS.

 

B. THE COURT ERRED BY FAILING TO APPOINT AN INDEPENDENT MEDICAL EXPERT TO ADVISE THE COURT.

 

C. THE GUARDIAN AD LITEM FAILED TO CONSIDER THE FULL RECORD IN RENDERING HIS REPORT.

 

D. THE COURT'S FAILURE TO MAINTAIN SEPARATE AND DISTINCT RECORDS IN TWO CASES HEARD RESULTED IN CONFUSION OF THE FACTS AND UNDUE PREJUDICE.

 

POINT III

 

THE COURT ERRED IN APPLICATION OF A HYBRID "BEST INTEREST" TEST.

 

A. Rule 4:86-12 Only Authorizes Appointment of A Special Medical Guardian Where The Prompt Rendering of Medical Treatment is Necessary to Deal With a Substantial Threat To The Patient's Life or Health.

 

B. Medical Necessity Must Be Established By Clear and Convincing Evidence.

 

C. The Best Interest Standard Articulated in In re Grady for Sterilization of A Developmentally Disabled Adult is Not Applicable Here Where Parents Seek Authorization To Perform A Hysterectomy Due To Medical Necessity.

 

D. The Present Record Fails to Clearly And Convincingly Establish That the Prompt Performance Execution Hysterectomy Was Necessary to Deal With A Substantial Threat To The Patient's Life Or Health.

 

POINT IV.

 

PETITIONERS ARE REQUIRED TO AND FAILED TO ESTABLISH THAT LESS DRASTIC MEANS OF MEDICAL TREATMENT WERE NOT AVAILABLE PRIOR TO AUTHORIZING A HYSTERECTOMY ON A MINOR DEVELOPMENTALLY DISABLED CHILD.

 

We decline the Division's invitation to address this matter on the merits, and to formulate prospective standards, for several reasons.

"[O]ur courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). An issue has become moot "when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.Y. S. & W. R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985); see also Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (declining to address the merits of a dispute regarding the authorization of medical treatment that had become moot). The doctrine of mootness emanates from the judiciary's unique institutional role as a branch of government that only acts when a genuine dispute is placed before it. We generally do not render advisory decisions retrospectively opining about the legality of matters that have already been resolved, for "[o]rdinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996).

In limited instances, courts will address the merits of appeals that have become moot, electing to do so "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Ibid.; see also Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998); In re Conroy, 98 N.J. 321, 342 (1985). The Division urges us to exercise our discretion and adjudicate this moot appeal on the merits, arguing that the questions before us involve significant matters of public interest and are capable of repetition but evading review.

To be sure, the issues of when and how a hysterectomy for a developmentally-disabled minor can be authorized for reasons of medical necessity raise weighty legal and constitutional questions. However, we are not persuaded that these issues are likely to recur with much frequency and, when they are, that our courts will not be able to render fair and sound decisions in those cases. There are no reported decisions dealing with a special medical guardianship in such a setting in the three decades since the Supreme Court decided In re Grady in 1981. The record indicates that the present case was tried before Judge Colalillo with a companion case involving another young woman whose family sought to have a hysterectomy for medically-indicated reasons. For reasons unknown to us, no appeal was filed in that companion case. Although G.S.'s OB/GYN did indicate that he has been consulted by others about such potential surgeries in the past, the record does not establish that the procedure is often sought.

We also do not presume that, if any such future instances arise, our courts will lack time to render a sound decision before the necessity for the surgery has become moot. Indeed, in this very case, the parties were not only able to have a full-blown hearing in the trial court with multiple experts but also were able to present their arguments on an emergent basis to this court and thereafter to the Supreme Court before the surgery proceeded, as authorized.

There are also sound jurisprudential reasons that militate against adjudicating this appeal on its merits in its moot posture. The parents of G.S. have little incentive to litigate further, having accomplished their goal in having her surgery judicially authorized. At oral argument before us, counsel for G.S.'s parents acknowledged that, if either party was dissatisfied with a disposition by this court, they would be financially or otherwise unlikely to remain active in the litigation if, for instance, certification were granted. The GAL did not participate in the present appeal. Moreover, unlike in Grady, the Attorney General has not participated in the litigation at all, either as an amicus or as counsel to the Division of Developmental Disabilities in the Department of Human Services, which according to the hospital Ethics Committee's report, "had no questions or concerns with the proposed surgery." Consequently, if either the present appellant or respondent were dissatisfied with our disposition of the issues, it is likely that the Supreme Court would be deprived of full and vigorous advocacy of all parties if it were to review our decision on the merits.

The issues raised by the Division are largely issues that concern the design of optimal procedures and standards to address future instances where a special medical guardian is sought for a developmentally-disabled woman who is in alleged medical need of a hysterectomy. The issues are the kind that ideally should be pondered and debated, essentially in a quasi-legislative manner, by physicians, hospital administrators, ethicists, civil rights advocates, women's groups, disability advocates, legal scholars, and others in the public arena. They are not the sort of problems that should be addressed in a vacuum by a panel of judges sitting on an intermediate appellate court, while one of the two principal adversaries is on the verge of withdrawing from participation for lack of money and incentive to litigate.

In Betancourt, supra, 415 N.J. Super. at 313-16, we declined to adjudicate moot issues in a case that similarly raised important public issues concerning medical treatment there involving whether a do-not-resuscitate order should have been issued for a patient in a persistent vegetative state who died three months after a trial on the matter. We noted that, despite the profound importance of the issues presented, the limited case-specific record was ill-suited to resolve them. Id. at 318. The issues instead "warrant[ed] thoughtful study and debate not in the context of overheated rhetoric in the battlefield of active litigation . . . but in thoughtful consideration by the Legislature as well as Executive agencies and Commissions charged with developing the policies that impact the lives of all." Id. at 318-19. Here, as in Betancourt, we likewise commend the issues raised by the Division in this matter to such thoughtful consideration by legislative and/or executive bodies, or, alternatively, by the Supreme Court in its capacity to fashion rules of Court prospectively. See R. 4:86-12 (regarding special medical guardianships).

For these reasons, the appeal is dismissed as moot, without prejudice to the Division presenting its concerns and policy recommendations in a more appropriate forum.

 

 

 

1 Because we are not reaching the merits of this moot case, and in an effort to further protect the privacy of G.S. and her family, we omit the names of G.S.'s physicians and the expert witnesses who testified.

2 The device sends a regular current through G.S.'s vagal nerves "to the brain stem and from there, throughout the brain."