Due Process; hunger strikes
When the DOC seeks to continue forced feeding of a prisoner on a hunger strike, a medical opinion is presumptively a “reliable medical opinion” within the meaning of the showing DOC must make.
“Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. See Youngberg, 457 U.S. at 323. It is apparent that the circuit court evaluated the physicians’ opinions without giving them a presumption of validity and rejected some of them without finding that they were a substantial departure from accepted medical judgment, practice, or standards. Indeed, there was no medical testimony opining that the physicians’ opinions supporting the necessity of continued forced feeding was such a substantial departure.”
“However, some of the circuit court’s findings on what the court viewed as compelling circumstances might arguably bear on whether the medical opinions supporting continued forced feeding are a substantial departure from accepted medical judgment, practice, or standards. We therefore examine these findings. We conclude that either these findings are not supported by evidence or, if supported by some evidence, the evidence does not, as a matter of law, meet the standard of showing a substantial departure from accepted medical judgment, practice, or standards.”
“First, as already noted, the circuit court found that the World Medical Association has condemned the forced feeding of competent adult hunger strikers and that the extended use of the restraint chair on hunger strikers has been condemned by a number of authors and medical ethicists. The record contains articles on these topics, as well as the World Medical Association Policy. The articles reflect divided views in the United States on the use of forced feeding in restraint chairs for competent adult hunger strikers. We therefore conclude these articles are not, as a matter of law, sufficient to establish that Dr. Sumnicht’s and Dr. Burnett’s opinions recommending forced feeding in the restraint chair for Lilly are a substantial departure from accepted medical judgment, practice, or standards.”
Reversed and Remanded.
Recommended for Publication in the Official Reports.
2009AP1420 DOC v. Lilly
Dist. IV, Dodge County, Bissonnete, J., Vergeront, J.
Attorneys: For Appellant: Anderson, Kathryn R., Madison; Harlow, R. Duane, Madison; For Respondent: Olson, Jeff Scott, Madison