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Court of Appeal, Fourth District, Division 3, California.

Barbro WESTHART, Plaintiff and Appellant, v. Joseph MULE et al., Defendants and Respondents.

No. G005933.

Decided: August 24, 1989

Harney, Wolfe, Shaller & Carr, David M. Harney and Carole A. Klove, Los Angeles, for plaintiff and appellant. Bonne, Jones, Bridges, Mueller & O'Keefe and Bradley J. McGirr, Santa Ana, for defendant and respondent Joseph Mule. Morgan, Wenzel & McNicholas, Nancy J. Bennett and David T. McCann, Irvine, for defendant and respondent Dennis S. Riff.


May the wife of an elderly man, incompetent to decide for himself the scope of his medical treatment, state a cause of action for intentional infliction of emotional distress against two physicians who, contrary to her wishes that no heroic measures be taken to prolong her husband's life, surgically inserted a feeding tube?   We conclude in light of the wife's failure to seek removal of the tube, the conduct of which she complains is not, as a matter of law, sufficiently extreme and outrageous to warrant relief.


Barbro Westhart's lawsuit against Joseph Mule, M.D., and Dennis Riff, M.D., was dismissed after the court sustained the defendants' demurrers to her second amended complaint without leave to amend.1  In determining the sufficiency of the complaint as against the demurrers, we accept as true all of its material factual allegations (Strang v. Cabrol (1984) 37 Cal.3d 720, 722, 209 Cal.Rptr. 347, 691 P.2d 1013), without regard to Westhart's “ability to prove [them], or the possible difficulty in making such proof․”  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

The complaint alleges George Martin Westhart was admitted to Anaheim Memorial Hospital 2 in February 1985.   He was suffering from congestive heart failure, pneumonia, chronic organic brain syndrome secondary to previous multiple strokes, and dehydration.   He had been ill for eight years, having endured a debilitating stroke in 1977, and as a result “was unable to walk, speak, make decisions for himself regarding his health care, and unable to communicate his wishes, desires, and consent regarding the course and scope of his medical treatment.”   In light of his deteriorating condition, Barbro Westhart, George's wife of 45 years, “took it upon herself” to make decisions for him.   Thus, acting on her husband's behalf and asserting his legal right, Westhart informed defendants no “extraordinary or heroic measures [were to be] taken to prolong [her husband's] deteriorating condition.” 3  Westhart “stated that she did not want her husband put on a respirator, that she did not want [cardiopulmonary resuscitation], or any heroic measures taken because her husband was basically a ‘vegetable.’ ”   These directives, with which the defendants were “in accord,” were entered on her husband's hospital record.

Early in March, without the consent of Westhart or her husband, defendants performed a surgical procedure involving the insertion of a feeding tube.   Two hospital nurses, acting on defendants' behalf, spoke with Westhart by telephone and attempted to obtain her consent.   During the conversation, according to the complaint, Westhart “was crying hysterically and under the emotional duress of living with the stress and strain of her husband's condition for the previous eight years.”   One of the two nurses claimed Westhart “did give permission for the surgery, but the other nurse claimed she did not feel it was voluntary and would therefore not sign the consent form.”   Nonetheless, defendants thereafter performed the surgery “in direct opposition to plaintiff's [prior] wishes.”   The complaint is silent with respect to any attempt by or on behalf of Westhart to thereafter have the feeding tube removed.4

According to Westhart, defendants knew or should have known the surgery would not result in her husband's recovery but would instead “merely prolong the dying process.”   Further, the insertion of the tube, and its maintenance, “was extreme and outrageous conduct by the defendants in that it resulted in a surgical procedure being done on an elderly, vegetative, and incompetent man of approximately 74 years of age and that it served no medical benefit thereby which would allow [the patient] to recover, be cured, or allow [the patient] to return to a cognitive state․”  Westhart “was in extreme emotional turmoil as a result of her husband's condition as it then existed on March 6, 1985, and had existed for the previous 8 years.”   She first learned in October 1985, one month before her husband's death, that the surgery “was in fact a means of nutrition and hydration which has been determined to be a means of heroic or extraordinary artificial life support.”   Defendants knew or should have known prolonging the dying process and sustaining the deteriorating condition of Westhart's husband would cause Westhart extreme emotional distress.   As a result of defendants' actions, Westhart “suffered humiliation, mental anguish, emotional and physical distress, and has been injured in mind.”

Finally, the complaint acknowledges George Westhart did not execute a directive pursuant to the Natural Death Act (Health & Saf.Code, §§ 7185 et seq.) because the Act was not in effect at the time he suffered his debilitating stroke, was not in a “terminal condition” as that term is defined in the Act,5 and did not execute a living will or a durable power of attorney appointing his wife as decision-maker with regard to his medical treatment.  (Civ.Code, §§ 2430 et seq.)   Nor did Westhart ever initiate proceedings to be appointed guardian, conservator, or attorney-in-fact;  she deemed such action unnecessary because she was already making decisions for him.


 “The elements of a prima facie case for the tort of intentional infliction of emotional distress are:  (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;  (2) the plaintiff's suffering severe or extreme emotional distress;  and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.   [Citations.]”  (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975.)  “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.   [Citations.]”  (Ibid.)

In sustaining the demurrers, the court reasoned the facts of this case “don't make [Westhart] the decision-maker in the court's mind in such a way as to render the doctor's action outrageous.  [¶ ]  Had the doctors followed her wishes, they might thereby be immunized from criminal prosecution or civil action for malpractice, and to that extent they might have been justified for certain purposes in relying upon her request, but I don't think it's unjustifiable outrageous conduct for them to rely instead upon their professional opinion in rendering treatment, and in doing so to place some secondary position on Mr. Westhart's previous preferences.” 6  The court inferred Westhart had no authority to exercise her husband's right to control the course of his medical treatment 7 and thus lacked “standing” to complain.

 Westhart insists she was the logical person to make decisions for her husband.   She maintains her actions were consistent with his wishes disclosed to her during the course of their 45–year marriage, and no formal legal proceedings were required to enable her to carry them out.  (See, e.g., Prob.Code, §§ 1800, 2355;  Civ.Code, §§ 2430 et seq.;  Health & Saf.Code, §§ 7185 et seq.) 8  She relies primarily on Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 9 where formal guardianship proceedings had not been instituted and, according to the court, were not required:  “[I]n the absence of legislative guidance, we find no legal requirement that prior judicial approval is necessary before any decision to withdraw treatment can be made.”  (Id., at p. 1021, 195 Cal.Rptr. 484.)   The Barber court further noted “[u]nder the circumstances of this case, the [patient's] wife was the proper person to act as a surrogate for the patient with the authority to decide issues regarding further treatment, and would have so qualified had judicial approval been sought․”  (Ibid.)

Westhart also cites Brophy v. New England Sinai Hosp., Inc. (1986) 398 Mass. 417 [497 N.E.2d 626], a case in which the Massachusetts Supreme Court “was asked to decide whether the substituted judgment of a person in a persistent vegetative state that the artificial maintenance of his nutrition and hydration be discontinued shall be honored.”  (Id., at p. 627.)   In finding for the patient's family, the court reiterated an earlier opinion in which it “ ‘recognize[d] a general right in all persons to refuse medical treatment in appropriate circumstances.   The recognition of that right must extend to the case of an incompetent as well as a competent patient because the value of human dignity extends to both.’  [Citation.]”  (Id., at p. 634.)   However, the court upheld the hospital's right to refuse to remove the patient's feeding tube and authorized the guardian, i.e., the patient's wife, to transfer the patient to the care of other physicians who would honor the family's wishes.

Nonetheless, whether Westhart was legally authorized to make medical decisions on her husband's behalf is beside the point.   The point is, did Westhart ever ask to have the feeding tube removed?   The answer to that question, as we now explain, is crucial to our decision.

At oral argument, counsel for Dr. Mule cited us to two recent California cases, Conservatorship of Drabick, supra, 200 Cal.App.3d 185, 245 Cal.Rptr. 840 and Conservatorship of Morrison (1988) 206 Cal.App.3d 304, 253 Cal.Rptr. 530, both involving a comatose patient in a persistent vegetative state being maintained with a nasogastric feeding tube.   In Drabick, the patient's brother, as conservator, sought the approval of the superior court for removal of the tube.   His petition was denied, and the appellate court reversed.   The court, emphasizing the fact the conservator was not required under Probate Code section 2355, subdivision (a), to seek judicial approval, noted:  “[I]t appears that every court to have addressed [this] matter has concluded that judicial involvement is necessary in a decision to forego medical treatment for a persistently vegetative patient only if the interested parties disagree.”   (Id., at p. 194, 245 Cal.Rptr. 840.)   In making its decision, the court construed section 2355 as “requir[ing] a conservator to decide (1) based upon medical advice (2) whether treatment is necessary;  section 2355 also requires a decision made (3) in good faith.”  (Id., at p. 216, 245 Cal.Rptr. 840.)

The circumstances in Morrison differed “in a fundamental respect.   The treating physician in Drabick was willing to remove or direct the removal of the nasogastric tube․  [In Morrison ], in contrast, the respondents refused to do so.   They contend that since they did not support [the conservator's] request to remove the tube, her decision was not based on medical advice.”  (Conservatorship of Morrison, supra, 206 Cal.App.3d at p. 309, 253 Cal.Rptr. 530.)   In distinguishing Drabick, the Morrison court explained:  “The requirement of medical advice cannot, however, reasonably be construed as demanding adherence to a physician's opinion on the ultimate decision whether to remove a nasogastric tube.   Otherwise, the conservator's right to refuse medical treatment on behalf of the conservatee would be meaningless.   If a patient has the right to reject a physician's recommendation, so must the patient's conservator under the reasoning of Drabick.”  (Id., at pp. 309–310, 253 Cal.Rptr. 530.)   The court concluded, however, the conservator “cannot require the physicians to remove the tube against their personal moral objections if the patient can be transferred to the care of another physician who will follow the conservator's direction.”  (Id., at p. 307, 253 Cal.Rptr. 530.)

We ascribe to the view expressed in Morrison that “[j]udicial intervention in ‘right to die’ cases should be minimal.  ‘Courts are not the proper place to resolve the agonizing personal problems that underlie these cases.   Our legal system cannot replace the more intimate struggle that must be borne by the patient, those caring for the patient, and those who care about the patient.’  [Citation.]”  (Conservatorship of Morrison, supra, 206 Cal.App.3d at p. 312, 253 Cal.Rptr. 530.)  “[C]ourts should intervene only if there is disagreement among the conservator and other interested parties and they have exhausted all nonjudicial efforts to resolve the dispute.”   (Ibid.)

In Morrison, nonjudicial efforts were not exhausted.   No attempt had been made to transfer the patient to another facility where a willing physician would remove the tube, despite evidence it was highly probable a suitable facility could be found.10  Thus, “the time for judicial intervention ․ [had] not yet arrived.”  (Id., at p. 312, 253 Cal.Rptr. 530.)   In a sense, it has not yet arrived here either.

 As previously indicated, the record reflects Westhart made no effort to have the feeding tube removed.   Nor, assuming she did but the doctors refused, did she seek court intervention.   While no “right to die” issue is presented in our case, Morrison 's rationale is still applicable.   Thus, to the extent a physician cannot be forced, contrary to his or her moral principles, to remove such apparatus when the patient can be transferred to the care of a physician willing to do so, Westhart cannot be heard to complain.   She failed to afford the doctors an opportunity to carry out her wishes and we refuse to speculate as to whether they would have complied or permitted the patient's transfer to a suitable facility.   Nor are we in a position to decide how a court might have handled the matter had Westhart sought its assistance.   In short, Westhart's failure to take action to effect removal of the feeding tube, either directly or via court intervention, essentially forecloses her claim she suffered severe emotional distress as a result of the doctors' extreme and outrageous conduct.

From a procedural standpoint, we also reject Westhart's contention the element of the tort calling for “extreme and outrageous conduct” presents a factual question not susceptible to attack at the demurrer stage.   Citing Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 147 Cal.Rptr. 565, she argues the trial judge, in characterizing defendants' conduct as neither extreme nor outrageous, usurped the function of the jury.   Her reliance on Murphy is misplaced.

The issue in Murphy was whether the statute of limitations had run on a cause of action for intentional infliction of emotional distress.   Noting the conduct complained of and the emotional distress alleged were both “continuing in nature,” the court reversed a summary judgment.   It concluded “the point at which the defendant's conduct has become sufficiently outrageous and the plaintiff's emotional distress sufficiently severe for the plaintiff to state a cause of action will be questions of fact.”  (Id., at p. 51, 147 Cal.Rptr. 565.)

The question here, however, is whether the doctors' conduct was sufficiently extreme and outrageous to warrant relief.   As stated in the Restatement Second of Torts, section 46, comment h:  “It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.   Where reasonable [persons] may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.”

Acknowledging the foregoing principle, the court in Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 reversed a judgment of dismissal after finding “[t]he multitude of cases upholding on various theories complaints alleging similar circumstances strongly indicates at least that plaintiff has pleaded a situation in which reasonable [persons] may differ regarding defendants' liability.”  (Id., at p. 499, 86 Cal.Rptr. 88, 468 P.2d 216, fn. omitted.)   The same cannot be said of our case, however.   The conduct of which Westhart complains is simply not the type which reasonable persons would regard as so extreme as to exceed all bounds usually tolerated in a civilized society.   Dr. Riff, in recommending the insertion of a feeding tube, and Dr. Mule, in performing the surgical procedure, did what any other physicians similarly situated would have done—no more, no less.   In light of Westhart's inaction, this is hardly a case in which “the recitation of the facts to an average member of the community would arouse his [or her] resentment against the actor, and lead him [or her] to exclaim, ‘Outrageous!’ ”  (Rest.2d Torts, § 46, com. d.)   We therefore conclude the demurrers of Dr. Mule and Dr. Riff were properly sustained.11

Judgment affirmed.   Respondents to receive costs on appeal.

I concur.   It is reasonably well-established that resort to the legal system is unnecessary where an incompetent patient's family and physicians concur with respect to the use of heroic medical measures.  (Conservatorship of Morrison (1988) 206 Cal.App.3d 304, 309, 253 Cal.Rptr. 530;  Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 216–217, 245 Cal.Rptr. 840;  In re Jobes (1987) 108 N.J. 394, 415–420, 529 A.2d 434, 444–447;  Pollock, Life and Death Decisions:  Who Makes Them and by What Standards?  (1989) 41 Rutgers L.Rev. 505, 537.)   A logical corollary to this principle, however, is that a physician's obligation to an incompetent individual's guardian or immediate family is not identical to that owed a patient, competent or otherwise.   The physician's duty is to the patient above all else;  and while a competent patient may refuse a proposed treatment (see Cobbs v. Grant (1972) 8 Cal.3d 229, 239–241, 104 Cal.Rptr. 505, 502 P.2d 1;  Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1015, 195 Cal.Rptr. 484), a third party does not enjoy the same absolute power to check the surgeon's hand.

Plaintiff had other remedies, as the lead opinion holds.   But redress is simply not available to surviving relatives via the tort system where doctors act to prolong life, even where they have previously acknowledged the effort will probably be futile and merely draw out the process of dying.   The question of whether to prolong the life of a terminally ill patient falls within one of the gray areas of medical ethics.   Under such circumstances, the law will not require the medical profession to yield to the private demands of surrogate decision-makers.   However well-intentioned they may be, the latter must find other medical care or apply to the courts if they wish to terminate treatment against the wishes of the patient's physician.1


1.   The court inquired of Westhart's lawyer whether a “repleading would be of value at this point.”   Counsel did not respond.Sustaining a demurrer without leave to amend “is proper where it is ‘ “ ‘probable from the nature of the defects and previous unsuccessful attempts to plead that plaintiff cannot state a cause of action.’ ”   [Citations.]'  [Citation.]  (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967, 257 Cal.Rptr. 610.)

2.   Anaheim Memorial Hospital was also named as a defendant but is not a party to this appeal.   Its answer to the second amended complaint was filed July 28, 1987.

3.   At the hearing, Westhart's lawyer asserted “[t]he defendants are the ones who gave Mrs. Westhart the direction to write the directive saying, ‘No heroic measures.   Do not take any extraordinary procedures on my husband.’  [¶ ]  Then they go back and say, ‘Wait a minute, let's operate on this guy.   This would make a little bit of money.’  [¶ ]  I'm not saying that's their motive, but would they be able to get him out of the hospital and into a nursing home because he's utilizing a bed in the hospital and nursing homes cannot take patients with intravenous feedings.”

4.   At the hearing on the demurrer to Westhart's first amended complaint, her attorney argued Westhart “continued to request Anaheim Hospital to have the feeding tubes stopped, which is reflected in the medical records by the social worker.   And then he was dumped, if I can say so, into a convalescent home where she again attempted to have it terminated.”Dr. Riff, in his respondent's brief, objects to Westhart's reference to her husband's medical records as they were never attached to any of the pleadings.According to the brief filed on behalf of Dr. Mule, not until George Westhart was discharged from Anaheim Memorial and removed to a convalescent hospital did Mr. Westhart's brother, a licensed physician, ask the administrator of the latter facility to disconnect the tube.

5.   “Terminal condition” is defined in Health and Safety Code section 7187, subdivision (f), as “an incurable condition caused by injury, disease, or illness, which, regardless of the application of life-sustaining procedures, would, within reasonable medical judgment, produce death, and where the application of life-sustaining procedures serve only to postpone the moment of death of the patient.”

6.   At the hearing on the demurrer to Westhart's first amended complaint, the court aptly noted “some of this sounds like a claim of battery or something other than an intentional infliction of emotional distress.”

7.   It is undisputed “a patient has the right to refuse any medical treatment, even that which may save or prolong [his or] her life.   [Citations.]”  (Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 1137, 225 Cal.Rptr. 297.)   Such right “is basic and fundamental.   It is recognized as a part of the right of privacy protected by both the state and federal constitutions.  [Citations.]”  (Ibid.)

8.   In Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 245 Cal.Rptr. 840 (cert. den. 488 U.S. 958 [109 S.Ct. 399, 102 L.Ed.2d 387], rehg. den. 488 U.S. 1024 [109 S.Ct. 828, 102 L.Ed.2d 816] ), the public defender appointed to represent the patient argued the patient's failure to exercise his right to determine the scope of his medical care under the Natural Death Act (Health & Saf.Code, §§ 7185 et seq.) or to execute a Statutory Form Durable Power of Attorney for Health Care (Civ.Code, § 2500) precludes the conservator's decision to terminate life-sustaining treatment.   The court disagreed, stating “nothing in the language of the two statutes suggests that the Legislature intended either to be exclusive.”  (Id., at p. 215, 245 Cal.Rptr. 840.)   The court further noted the Natural Death Act itself (Health & Saf.Code, § 7193) expressly provides it is not exclusive.

9.   The issue in Barber, of course, was presented in a somewhat different setting.   There, the physicians had ceased treatment at the request of the patient's family and, as a consequence, were charged with murder and conspiracy to commit murder.   But the cases are also distinguishable in another respect.   Unlike George Westhart, the patient in Barber “was in a deeply comatose state from which he was not likely to recover.”  (Barber v. Superior Court, supra, 147 Cal.App.3d at p. 1010, 195 Cal.Rptr. 484.)   Furthermore, test results indicated he “had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent.”  (Ibid.)

10.   The Morrison court, recognizing it might at times be difficult or impossible to find a suitable facility, remarked:  “This case does not presently pose the dilemma created when no physician can be found who will follow the conservator's direction.  [Citation.]  The issue of whether a court could compel physicians to act contrary to their ethical views is too profound for gratuitous discussion in a dictum.   Its resolution must await an appropriate case.”  (Conservatorship of Morrison, supra, 206 Cal.App.3d at p. 312, 253 Cal.Rptr. 530.)

11.   We do not decide whether the action is barred by the applicable one-year statute of limitations.  (Code Civ.Proc., § 340, subd. (3).)  Although the parties address the issue in their briefs, it was not raised in the demurrers to the second amended complaint.Anaheim General demurred to the original complaint on that ground;  it pointed out the feeding tube was inserted March 6, 1985, while the complaint was not filed until June 26, 1986.   The demurrer was sustained with leave to amend, and Westhart amended her complaint to allege she first learned in October 1985, shortly before her husband's death, the feeding tube was actually “a means of nutrition and hydration which has been determined to be a means of heroic or extraordinary artificial life support.”The issue was again raised in Dr. Riff's demurrer to the first amended complaint.   The court did not base its ruling on that ground, however, “believ[ing] there is at least adequate allegations there regarding a delay in discovery of the circumstances.”

1.   One difficulty:  Plaintiff's amended complaint, in so many words, alleges an agreement respecting her husband's treatment was breached:  “[T]he defendants ․ were fully aware and informed of plaintiff ['s] wishes ․ regarding the use of extraordinary or heroic measures and were in accord with her wishes.”   In addition to her alleged emotional distress, plaintiff also pleads the doctors' actions caused her additional and unnecessary medical expenses.The rule is, “Any valid cause of action overcomes a demurrer:  It is not necessary that the cause of action be the one intended by plaintiff.   The test is whether the complaint states any valid claim entitling plaintiff to relief.   Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail.   But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.  [Citation.]”  (Weil & Brown, Cal.Practice Guide, Civil Procedure Before Trial (1989) § 7:41;  Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.)   Thus, if the complaint involved unauthorized repairs to plaintiff's husband's automobile under similar circumstances, it probably would be sufficient to withstand a demurrer on a breach of contract theory, even though plaintiff failed to assert it.For the same policy reasons noted above, however, the law cannot enforce such agreements with respect to the treatment of incompetent individuals.   Without the ability to take direction from the patient, the doctor must remain free to prolong life where it appears at that moment to be in the patient's best interest, notwithstanding a previous contrary understanding with guardians or relatives.

SONENSHINE, Associate Justice.

PARSLOW, J.*, concurs.

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