California Court of Appeals, Fourth District, Third Division
Conservatorship of the Person and Estate of MARIA B. DENISE B., as Conservator, etc., Petitioner and Respondent,
MARIA B., Objector and Appellant.
Appeal from an order of the Superior Court of Orange County, No. A235201 Mary Fingal Schulte, Judge.
Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Kira Rubin, Deputy Public Defender, for Objector and Appellant.
Joseph M. Geis and Andrea Gee for Petitioner and Respondent.
As appellant Maria B.’s mother and limited conservator, Denise B. petitioned the trial court for an order authorizing her to consent to a hysterectomy and oophorectomy on Maria’s behalf. Maria is a developmentally disabled adult who suffers from numerous health problems, including an abnormally long and heavy menses and debilitating migraine headaches that usually coincide with the onset of her menses. After numerous other treatments for Maria’s severe menstrual bleeding and migraines failed, her doctors recommended a hysterectomy and oophorectomy to treat Maria’s condition.
The trial court found Probate Code section 2357 and its provisions regulating court-ordered medical treatment governed Denise’s petition, rather than Probate Code section 1950 et seq. and its provisions regulating sterilization of developmentally disabled adults. As explained below, we agree section 2357 governs because the objective of the proposed surgery is to treat Maria’s medical conditions, not to prevent her from bearing children. Although the proposed surgery would result in Maria’s sterilization, that is the incidental effect of the medically necessary treatment.
In deciding the merits of Denise’s petition, the trial court found the preponderance of the evidence standard of proof applied instead of the more stringent clear and convincing evidence standard. We conclude the trial court erred in doing so because the proposed surgery would have a substantial and irreversible impact on Maria’s fundamental right to procreative choice. Accordingly, the heightened standard of proof is required to protect that fundamental right and ensure the proposed surgery is truly a medical necessity.
We affirm the trial court’s order granting Denise’s petition, however, because Maria’s counsel failed to show it is reasonably probable the trial court would have reached a different conclusion if it had applied the proper standard, and therefore failed to show the error was prejudicial.
Facts and Procedural History
Maria is a 25-year-old developmentally disabled adult who suffers from cerebral palsy, mild mental retardation, and hydrocephalus, which is an accumulation of excessive fluid in the brain. She functions academically and socially at approximately a first or second grade level and uses sign language to communicate because she is congenitally deaf. Denise is Maria’s mother. In 2006, the trial court appointed Denise as the limited conservator of Maria’s person and estate with the power to give and withhold medical consent on Maria’s behalf.
To treat her hydrocephalus Maria has surgically implanted shunts that drain excess fluid from her brain to her abdominal cavity and thereby relieve some of the pressure in her head. The shunts, however, are susceptible to failure or infection and periodically have required surgical adjustment or relocation, although her current shunts can be moved without surgery using a special magnet.
Maria began her menses at age 11 and has experienced increasingly irregular menstrual cycles with excessive bleeding that lasts for an abnormally long period each cycle. Denise estimated Maria often would bleed 26 days per month, and frequently could not stand up without bleeding through her sanitary protection and clothing. Maria’s condition caused her to experience low iron, chronic fatigue, bloating, and abdominal cramping.
In approximately 2008, Maria began having severe and debilitating migraine headaches. On a daily basis, Maria experienced headaches she rated a three on a scale from zero to 10, but more than 10 times per year she suffered severe migraines she rated a seven or eight on the same scale. The onset of these migraines caused Maria to become weak and often collapse in pain, requiring numerous emergency room visits and six or seven hospitalizations. The migraines sometimes occurred when Maria’s shunts failed or required relocation, but most of the time they coincided with the start of her period. Doctors at the hospital treated Maria with powerful pain medication, performed CAT scans to ensure her shunts were working properly, and then sent her home where she would sleep for a day or two. Maria worked with a pain management team at St. Joseph’s Hospital and a specialist with the Department of Mental Health in an unsuccessful attempt to control the intense pain.
In 2009, Maria began seeing Dr. John W. Chen, a neurologist. To prevent her debilitating headaches, Chen prescribed Maria narcotic and prophylactic medications, and also referred Maria to neurosurgeons who performed multiple procedures to manipulate and adjust her shunts. Unfortunately, none of these treatments provided Maria any significant relief from her migraines. Because Maria’s migraines usually coincided with her severe and lengthy menses, and because the change in hormone levels associated with a woman’s menses can cause migraines, Chen recommended Maria see a doctor specializing in obstetrics and gynecology.
In 2010, Dr. Robert Borrowdale, an obstetrician and gynecologist, began treating Maria. Between February and July 2010, Borrowdale placed Maria on birth control pills to regulate her hormone levels and control her menses, but that treatment proved unsuccessful. In July 2010, Borrowdale performed a dilation and curettage on Maria to remove the lining of her uterus to reduce her bleeding. The procedure temporarily worked, but her bleeding soon resumed. Following the dilation and curettage procedure, Borrowdale prescribed a modified birth control pill regimen, but that too failed to curb Maria’s excessive menstrual bleeding and severe migraines. In April 2011, Borrowdale stopped giving Maria birth control pills and prescribed Depo Provera, which is another form of birth control administered by an injection every 90 days.
The Depo Provera shots controlled Maria’s menstrual bleeding and severe migraines for nine or 10 weeks, but her heavy bleeding and severe migraines would resume at that point. Maria would then have to endure the pain because she could not receive another shot until the end of the 90-day period. Consequently, she often had to visit the emergency room to obtain pain medication for the two or three weeks before she could receive her next shot. Moreover, Depo Provera only may be taken for approximately two years because it decreases the patient’s bone density.
Having exhausted the less intrusive treatments described above, Borrowdale recommended Maria undergo a total hysterectomy. After consulting with Chen, Borrowdale revised his recommendation to also include an oophorectomy because the two doctors believed Maria’s menstrual migraines were caused not only by her heavy bleeding but also the fluctuation in hormone levels caused by her ovaries.
Chen agreed a hysterectomy and oophorectomy offered Maria a viable treatment option because several of his other patients obtained migraine relief after undergoing those procedures. Without the hysterectomy and oophorectomy, Chen testified he would continue to treat Maria in the same manner — using various medications and dosages to treat Maria’s pain and prevent her migraines. This treatment also would require adjusting or relocating her shunts as needed. That course of action, however, concerned Chen. He explained prolonged use of these medications could cause liver or kidney failure, the repeated CAT scans required to examine the shunts would expose Maria’s brain to increased radiation levels, and the repeated shunt adjustments would increase the risks of bleeding in her head.
Both Borrowdale and Chen discussed the proposed surgery with Maria, explaining the hysterectomy and oophorectomy could potentially help with her headaches, but would permanently prevent her from having children. Maria told both doctors she wanted the surgery performed.
In July 2012, Denise petitioned the trial court for an order authorizing her, as Maria’s conservator, to consent to a hysterectomy and oophorectomy on Maria’s behalf. Denise brought the petition under section 2357, which governs court ordered medical treatment. After several continuances, the court conducted a two-day trial on the petition in December ...