U.S. High Court Will Be Asked to Bar Pulling Plug on Man in Coma

The U.S. Supreme Court will be asked to bar the removal of life-support systems from an accident victim who has been in a coma for five years with no hope of recovery, the comatose man’s attorney said Friday.

An appeal will challenge an unprecedented “right-to-die” ruling by a state appellate panel authorizing a relative to order disconnection of the nasal feeding tube that has sustained William Drabick III of San Jose since February, 1983.

While other decisions have permitted patients themselves to refuse treatment, the appeal court ruling was the first in California to allow a family member or conservator to act for a patient without prior written consent.

“The state is allowing the taking of life in a case in which his interests were not represented and on evidence insufficient to overcome his fundamental constitutional rights,” said state Deputy Public Defender Michael Pescetta, the court-appointed lawyer for Drabick.

Support System

An attorney for the victim’s brother and conservator, David Drabick of Crofton, Md., said he would oppose the appeal and that he expected the support system to be removed as soon as the final legal issues are resolved.

“We’re not trying to rush anything,” said the lawyer, Michael Gilfix of Palo Alto. “Mr. (David) Drabick sees the public defender as doing his job, but he’s still a little frustrated. Through all these months, there were several times this case seemed to be over--but it was not.”

The appeal will follow Thursday’s refusal by the state Supreme Court to review the appellate ruling. Only Justice Allen E. Broussard voted to hear the case. Votes from four of the seven justices are required for review.

The U.S. Supreme Court has yet to formally rule in a “right-to-die” dispute. Twelve years ago, review was sought of a landmark ruling granting the parents of Karen Ann Quinlan permission to turn off a respirator that aided her in a lengthy coma. But the justices declined to hear that case or any similar dispute arising since.

Meanwhile, under varying circumstances, courts in at least 12 states have approved removal of life-support systems from permanently comatose patients.

Head Injuries

William Drabick, 44, suffered severe head injuries in a car accident that occurred as he was returning from a race track with winnings of $9,000. Since then, he has remained in a nursing home under constant care.

Doctors say he is not “brain dead” and can breathe without a respirator. Nonetheless, a physician recently concluded there was “no realistic hope” that he would recover.

Drabick’s brother filed suit in 1986, seeking court permission to remove the artificial life-support system so that Drabick could die a natural death.

The suit acknowledged that Drabick had not filed a “living will” or a power of attorney, either of which under state law could have authorized removal of life-support systems in such circumstances.

However, his four brothers testified they believed that Drabick would not want to live in a comatose state. In addition, Jeannine Gonzalez, a woman who had lived with Drabick for 12 years before the accident, said Drabick had said repeatedly he would not want to be kept alive by artificial means.

A Santa Clara County public defender was named to represent Drabick but after investigating the case, agreed with family members that Drabick would have refused life-sustaining treatment.

A Superior Court judge refused to allow the removal of the life-support system. But last April, a state Court of Appeal in San Jose ruled 3 to 0 that Drabick could be allowed to die.

Family Member

The panel found that state statutes did not bar a conservator or family member from taking such action in behalf of a comatose patient--even one who had not authorized such steps in advance. In such circumstances, the courts should not intervene, the panel said.

” . . . Faced with a persistently vegetative patient and a diagnosis establishing that further treatment offers no reasonable hope of returning the patient to cognitive life, the decision whether to continue non-curative treatment is an ethical one for physicians and family members or other persons who are making health-care decisions for the patient,” Appellate Justice Nat A. Agliano wrote for the court.

In an appeal to the state Supreme Court, Pescetta contended that the appellate ruling was so broad that it could risk the lives of thousands of comatose patients, amounting to “a license for the disposition of lives which are considered by others to be useless and costly.”

Gilfix, urging the court to leave the ruling intact, said that no one was “choosing death” for Drabick, but that the comatose man had “a right to have appropriate medical decisions made for him--decisions that take into account his own personal values and verbal statements.”

On Friday, Pescetta said his appeal to the U.S. Supreme Court would be based on a claim that Drabick had been denied his federal right to due process of law. Meanwhile, Pescetta said he would seek an order from the state appeal court, postponing the effect of its decision while review is sought before the federal high court. Action on a petition for review would be expected by this fall.