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Right-to-die law defined by local case

Justices ruled that people can decide if they wish to be force-fed to stay alive.

By WILLIAM R. LEVESQUE
Published October 13, 2003

DUNEDIN - Estelle Browning's life didn't end the way she intended.

Browning was a healthy 85-year-old Dunedin resident in 1985 when she decided to sign a living will after seeing a friend on life support.

"Thank God I've got this taken care of," Browning said after signing the document at her neighbor's house. "I can go in peace when my time comes."

Instead, Browning suffered a stroke and lingered in a brain-damaged state for nearly three years as lawyers argued about the right to die, a right Browning thought her living will guaranteed.

As lawyers argue the case of brain-damaged Terri Schiavo, scheduled to have her feeding tube removed on Wednesday, they travel a legal road that Browning helped build. Far more than the Schiavo case, Browning helped shape Florida's right-to-die legal landscape.

Browning, her life prolonged by a feeding tube, died of causes related to her stroke on July 16, 1989, at age 89, before the courts decided whether her feeding tube could be removed.

More than a year after her death, the Florida Supreme Court released a landmark ruling in her case that said the permanently incapacitated need not be subjected to forced feeding.

"I think the courts failed Estelle Browning," said George Felos, a lawyer involved in both the Browning and Schiavo cases. "In Estelle's case, her wishes were just so explicit. It was just pathetic and heartrending to know that she was being kept alive against her wishes."

Estelle Browning was an unlikely trailblazer.

She grew up in Rhode Island, became a bookkeeper and married a commercial printer. The couple's only child, Richie, died at 18 in the Japanese bombing of Pearl Harbor.

Browning and her husband retired and moved to Dunedin in the 1960s. After he died in 1978, she continued to be active and independent, friends said. She ate out twice a day, traveled with other retirees and attended the theater.

She had many friends. But her favorite was Kiltie, a fat Scottie dog that could barely walk because he'd fallen off a grooming table and dislocated his hips.

The dog was a gift from a favorite cousin, Doris Herbert, who herself moved to Florida upon her retirement in 1982 to be near Browning.

"She made me promise never to allow her to be sent to a nursing home," Herbert told the St. Petersburg Times after Browning's death.

By the mid 1980s, Browning decided to sign a living will, a document that enables people to say how they want to be treated if they become incapacitated.

Unlike Mrs. Schiavo's case, where a judge relied on the testimony of her husband and others who knew her in deciding Mrs. Schiavo's wishes, Browning left a living will that could not have been clearer.

The document said that if she should ever have a terminal condition, no "life-sustaining" steps should be taken to "artificially prolong" her life.

A clause that proved crucial said, "I do not desire that . . . food and water be provided by a gastric tube or intravenously."

The night of Nov. 9, 1986, almost a year to the day after she signed her second living will, Browning was sitting on her gold-flowered sofa, putting on her shoes as she prepared to go out for a meal.

Herbert went out for a few minutes and when she came back, Browning was still sitting, as if in a daze, with only one shoe on. She asked Herbert to help her with the other one.

Herbert couldn't lift her foot.

Before paramedics took Browning to the hospital, she asked her cousin, "You promise to take good care of Kiltie?" Those were the last words she spoke.

To Dr. Lofty Basta, a right-to-die advocate and Clearwater cardiologist, the timing for a legal interpretation of Floridians right to die was right. Technology, ever improving, promised a prolonged life, whatever a person's brain function.

"Before Browning, we were ignorant," said Basta, president of Project GRACE, which promotes an individual's right to reject medical treatment. "We were taken by high technology in medicine. But we didn't know how to handle it. Or when we should use it."

Doctors determined that the brain cells that controlled thinking had been killed during Browning's stroke.

Like Mrs. Schiavo, a feeding tube kept Browning alive after doctors said she could no longer swallow food and water.

Herbert hired Felos, the same lawyer later hired by Mrs. Schiavo's husband, to petition the Pinellas-Pasco Circuit Court to end artificial life support for Browning.

Browning's doctor, and officials of her nursing home, refused to honor the living will.

At the time, Felos said, it was commonplace for people to be removed from respirators. But law on the removal of feeding tubes was unclear, and stiff legal opposition faced anyone trying to force the removal of a tube.

Lawyers for the nursing home and the Pinellas-Pasco State Attorneys Office said the feeding tube could not be removed because Browning's condition wasn't terminal and her death not imminent.

But Felos argued to a probate court judge that the only thing keeping Browning alive was the feeding tube. Without it, death would certainly follow.

"Florida did have a living will statute," Felos said. "But it didn't provide for the removal of artificial provisions for food and water."

The only case involving a feeding tube that the Florida Supreme Court had previously ruled on involved a competent patient in the final stages of Lou Gehrig's Disease. The court said the state had no right to interfere with the patient's decision to remove the tube and end his suffering.

But the court hadn't ruled about what should be done in the case of a patient unable to communicate.

As Pinellas-Pasco Circuit Judge Thomas Penick, who heard the Browning case, said in a 1988 interview, "What if (Browning) is desperately saying to herself, "God, don't let them find that living will'?"

Penick ruled that Browning's condition wasn't terminal, and he refused to allow the removal of her feeding tube.

After several legal twists and turns, the case was finally appealed to the Florida Supreme Court.

As Felos prepared briefs in the case, Browning died on July 16, 1989.

Her case moved forward anyway, and on Sept. 13, 1990, the Florida Supreme Court handed down its ruling. It was stunning.

The court said a Florida resident has a "fundamental right to the sole control of his or her person" and "the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one's health."

The court made no distinction between a feeding tube and other medical treatments and specifically found Herbert was right in seeking to carry out her cousin's wishes.

Felos said it was vindication for Herbert, who died in 2001.

"This case was tough on Mrs. Herbert," he said. "But she was from New England, and she had that Yankee determination and spirit. She didn't give up."

The court decision was too late for Browning, but the Dunedin resident profoundly changed Florida law.

[Last modified October 13, 2003, 01:33:46]


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