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S.S. v. R.S.

April 7, 2009


The opinion of the court was delivered by: Karen V. Murphy, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Petitioner moved by Order to Show Cause for an order pursuant to Mental Hygiene Law § 81.02(a) appointing the Petitioner F.H. the health care special needs guardian and guardian ad litem for her brother S.S.; empowering F.H. to direct the immediate continuation of the connection and/or re-connection of the mechanical ventilator; and to further direct that the ventilator not be disconnected and that any other life sustaining treatment or procedures be implemented. Petitioner further sought an order pursuant to Public Health Law § 2992(1) and (3) voiding the appointment of R.S. under the January, 2009 health care proxy executed by S.S. and other related relief.

Pending the hearing of the proceeding Respondents were "temporarily enjoined from interfering with or instructing any health care provider to withhold mechanical or other ventilation or breathing assistance, artificial nutrition and hydration from S.S." and it was further ordered that pending the hearing, South Nassau Communities Hospital was not to remove the ventilator attached to S.S.

Mental Hygiene Legal Services was appointed counsel for S.S. A hearing was held at the hospital on Monday March 23, 2009 and was continued there on Wednesday March 25, 2009. At the start of the hearing, Petitioner sought to amend the Petition to name S.I. as an additional Petitioner and that application was granted and the caption amended accordingly. At the conclusion of the hearing the Court visited the patient, S.S. at his bedside.

In 1990, Public Health Law was amended to add Article 29-C - Health Care Agents and Proxies. The legislative intent was to establish a decision making process to allow competent adults to appoint an agent to decide about health care treatment in the event they lose decision making capacity. The legislation conferred no new rights regarding the provision or rejection of any specific health care treatment and affirmed existing laws and policies, which limit individual conduct, including those laws and policies against homicide, suicide, assisted suicide and mercy killing (1990 Regular Session Chapter 752, Message of Necessity). Senator Michael J. Tully, Jr. stated in his memorandum in support of this bill that the bill was based upon the consensus of the diverse Task Force on Life and the Law convened by Governor Mario Cuomo in March 1985. It was recognized that based upon the Court of Appeals decision in In Re O'Connor, 72 NY2d 517, 531 NE2d 607, 534 NYS2d 886 (1988) the decision to decline the provision of life sustaining treatment could be made only upon clear and convincing evidence that the patient, given the particular circumstances the patient was facing, would decline the particular treatment proposed. Recognizing that to be a "very stringent standard" that "may be difficult to meet in most cases" this law was enacted to fill what was believed to be a "critical gap" in the statutory framework governing health care decisions in New York.

Senator Tully explained that the O'Connor Court, despite stating a stringent standard (clear and convincing evidence) suggested that through the creation of a springing power of attorney, a principal could invest another person with authority to express the principal's wishes with respect to medical treatment. Public Health Law Article 29-C was enacted to "eliminate the ambiguities in the law and obviate the need for a health care provider or family member to seek court approval of proposed treatment for an adult unable to make health care decisions." (Tully memorandum at page 363 of Chapter Law Memorandum, L 1990 ch 752).

Governor Cuomo in his approval Memorandum cited the bill as "an effective means to ensure that [adult patients'] treatment wishes and interests will be protected if they lose the capacity to speak for themselves. The health care agent must make decisions based upon the patient's wishes, including consideration of the patient's religious and moral beliefs." The Governor discussed the standard of reasonableness adopted by the Legislature. "If the patient's wishes are not reasonably known, the agent must decide based on a judgment about the patient's best interests." Highlighting another safeguard, the Governor noted that a health care agent can decide against the provision of artificial nutrition and/or hydration only when the decision reflects the patient's reasonably known wishes. The Governor further recognized "The choices posed by medical advances will still be difficult. We will continue to confront them as patients, family members, or health care professionals. But the added anguish of legal uncertainty and confusion will be removed for patients who have created a health care proxy." (Governor's Mem. Approving L 1990, ch 752).

The stated intent to remove the legal uncertainty and confusion when a patient has created a health care proxy has apparently been met successfully in practice. In the nearly two decades since the Health Care Proxy Law was enacted there have been few reported decisions interpreting and applying Public Health Law Article 29-C. While it appears to this Court, based upon the memoranda supporting the bill's passage, which contrasted the O'Connor decision and the reasonableness standard set forth in the statute, that the legislature rejected the clear and convincing standard when a health care proxy has been created, some courts are still applying the more stringent standard, thereby continuing the legacy of confusion and legal uncertainty. (see Matter of University Hospital of the State University of New York Upstate Medical University, 194 Misc 2d 372, 754 NYS2d 153 (Sup. Ct. Onondaga Co., 11/12/2002); Matter of Balich, 2003 NY Slip Op. 51080(U) [Sup. Ct. Suffolk Co., 7/10/2003]; Borenstein v. S.I.son, 8 Misc 3d 481, 797 NYS2d 818 [Sup.Ct. Queens Co., 3/30/2005].)

Regardless of our joie de vie, death is still an inescapable certainty. Defining death, however, is becoming much more difficult and less certain. Historically, we had little to no control over how and when death would occur, but modern medicine has upset the laws of nature and created significant controversy regarding when life begins and ends. While recognizing the miracle of life saving measures, the legislature and courts have been forced to consider the meaning of life and equally important, death, at times referencing a living corpse, to reflect the condition of a person incapable of living without the aid of machines and tubes. The statutory creation of a health care proxy assures that even those unable to speak may still exercise their right to refuse treatment that would sustain their existence, even after life as they knew it was forever over, or to exercise their right to have such treatment regardless of quality of life issues or futility of such treatment, because every life is precious and unique.

The matter sub judice pits a patient's siblings against his wife. Not only are their differing positions based upon their relationship with the patient, religion and other beliefs, the very intent of the principal is at issue. Herein the principal, while verbally expressing a wish to live his way and on his terms without being dependent upon machines, in response to being advised by his doctor that his future may well be dependent upon the use of a respirator, created a health care proxy stating "I wish to live." This Court is charged with trying to reconcile those seemingly incongruent and impossible desires to determine the principal's wishes and whether the agent is acting in accordance with those wishes.

The principal and patient S.S. was described by witnesses as a magnetic, loud, colorful, outspoken, "in your face kind of guy" who loved to work, loved the Yankees and loved life. He suffered from obesity, which impacted on his ability to breathe. Despite having his stomach banded several years ago, S.S. still loved to eat and continued to battle his weight and the adverse effects it had on his health. Approximately two and one half years ago in November 2006, S.S. was rushed to the emergency room and during that hospitalization, due to elevated carbon dioxide (CO2) levels, had to have a tracheotomy.

Dr. A., S.S.'s treating Pulmonologist, who has treated S.S. since that hospitalization testified. Dr. A. is both a friend and doctor to S.S. and he began treating S.S. for abdominal distress and breathing difficulties after seeing him in the emergency room in November 2006. S.S. had an extended stay in ICU at that time. S.S. was able to be weaned off the respirator and was sent for rehabilitation upon his release from the hospital. After a brief re-hospitalization, S.S. returned home and while frustrated by limitations pertaining to the trache, for example his inability to swim, he resumed working and went about his activities of daily living.

After S.S. fell ill on January 5, 2009 R.S. took him to see Dr. A. Petitioner F.H. followed them to the doctor's office in her own car and waited in the waiting room while R.S. and S.S. met with Dr. A. At that visit, Dr. A discussed S.S.'s condition and treatment alternatives going forward, including antibiotics, a stomach scope and a respirator. S.S. said he did not want a mechanical ventilator or artificial nutrition. According to Dr. A. and ...

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