In re Westchester County Medical Center , 139 A.D.2d 344 ( 1988 )

OPINION OF THE COURT

Mangano, J. P.

The crucial question to be resolved on the instant appeal is whether clear and convincing evidence was adduced at a hearing to establish that the presently incompetent patient, Mary O’Connor, expressed a desire, when she was competent, to exercise her common-law right to refuse all artificial life support systems, which would include nasogastric feeding and intravenous feeding. Our review of the record compels us to hold that this question must be answered in the affirmative.

I

The health of Mary O’Connor, a 77-year-old widow, began to deteriorate in July 1985 when she suffered the first of a series of progressively debilitating strokes. Her last stroke, in December 1987, affected her ability to swallow, and, after several months of hospitalization at Dobbs Ferry Hospital, she was transferred in February 1988 to the Ruth Taylor Institute, a nursing home associated with the Westchester County Medical Center (hereinafter WCMC). At the time of her admission to the Ruth Taylor Institute, the respondents Helen A. Hall and Joan Flemming, Mrs. O’Connor’s daughters, submitted to the Institute a document, signed by them, which indicated that it was their mother’s wish that no artificial life support systems be started or maintained to sustain her life. On June 20, 1988, Mrs. O’Connor was transferred to WCMC, and was diagnosed as having multiinfarct dementia, dehydration and sepsis. Upon her admission to WCMC, it was determined that an attempt to feed Mrs. O’Connor through a puree diet would be futile since by then she had lost her ability to swallow. Accordingly, she was put on intravenous feeding. Mrs. O’Con-nor is neither comatose nor in a persistent vegetative state. However, she only responds sporadically to some simple questions (although not always appropriately), and obeys some very simple commands. It is conceded by all the parties to this proceeding, as well as by both medical experts who testified at the hearing, that Mrs. O’Connor is not competent to make any decisions regarding her medical treatment. In addition, the record demonstrates, through the testimony of the medical experts called by both sides in this dispute, that the damage suffered by Mrs. O’Connor as a result of the multiple strokes is "irreparable”, that there is no chance for "a meaningful mental status recovery”, and that "she will never improve from” her present condition.

The intravenous feeding of Mrs. O’Connor, at best, will be effective for only several weeks, due to its relatively low caloric content, and the progressive obliteration of Mrs. O’Connor’s venous access. As a result, WCMC commenced the instant proceeding in mid-July 1988, inter alia, for permission to insert a nasogastric tube so that nourishment could be delivered directly to her digestive tract. Mrs. O’Connor’s attending physician was of the view that if the nasogastric tube were not inserted at the appropriate time, and the intravenous feeding were discontinued, Mrs. O’Connor would die in approximately 7 to 10 days. On the other hand, the insertion of the nasogastric tube would, in the attending physician’s "guess”, or "top of the head opinion”, prolong Mrs. O’Connor’s life, for several months or perhaps "a year or two”. The application of WCMC was opposed by the respondents Hall and Flemming, who during the hearing, sought to have the intravenous feeding discontinued.

After a full hearing on the issues, the Supreme Court, Westchester County, by judgment dated July 26, 1988, denied the petition of WCMC, and directed that the intravenous feeding be discontinued. The Supreme Court found that there was clear and convincing evidence that Mary O’Connor, when competent, expressed a desire not to be maintained by artificial life support systems in her current condition, and that the effect of her expressed desire was to include nasogastric tube and intravenous feeding.^*

II

In the seminal case of Matter of Storar (52 NY2d 363), and its companion case Matter of Eichner v Dillon (52 NY2d 363), the Court of Appeals held, in reliance on the common-law right of every person of adult years and sound mind to determine what should be done to his body (see, Schloendorff v Society of N. Y. Hosp., 211 NY 125), that an incompetent person has the common-law right to have life sustaining medical treatment terminated where it is established by clear and convincing evidence that the person, when competent, expressed the desire to invoke that right, and where there are no countervailing compelling State interests present (Matter of Storar, supra, at 379; see, Matter of Delio v Westchester County Med. Center, 129 AD2d 1). Moreover, in Matter of Delio v Westchester County Med. Center (supra), we specifically held that the withdrawal or withholding of feeding by artificial means, including nasogastric tubes and intravenous feeding, "should be evaluated * * * as any other medical procedure” (Matter of Delio v Westchester County Med. Center, supra, at 19). Specifically, this court stated (Matter of Delio v Westchester County Med. Center, supra, at 19): "we view nutrition and hydration by artificial means as being the same as the use of a respirator or other form of life support equipment”.

Accordingly, for the purposes of our analysis in the instant proceeding, we fail to perceive any distinction between a nasogastric tube and intravenous feeding (see also, Matter of Conroy, 98 NJ 321, 486 A2d 1209). Moreover, we do not find persuasive the argument that life sustaining treatment may not be terminated in the instant proceeding simply because Mrs. O’Connor is not comatose or in a chronic vegetative state. As this court stated in Matter of Delio v Westchester County Med. Center (supra, at 21): "We do not believe that the panoply ofcrights associated with a competent person’s right to self-determination is limited by reason of a person’s age or medical condition”. The crucial facts in the case at bar are that Mrs. O’Connor has been rendered permanently incompetent and that she is being maintained on an artificial life sustaining system (Matter of Delio v Westchester County Med. Center, supra, at 21). Accordingly, we must legally evaluate her desires, if any, which were expressed while she was competent, with respect to artificial life sustaining systems. It is to that issue that we now turn.

Ill

It should be noted at the outset that Mrs. O’Connor, during the course of her life, devoted a great deal of time to caring for several extremely ill relatives. Specifically, Mrs. O’Connor took care of all of her husband’s needs for two years prior to his death from cancer in 1967. In addition, Mrs. O’Connor had two brothers, who died in 1975 and 1977, respectively, both from cancer, and Mrs. O’Connor spent many hours caring for them as well. Finally, Mrs. O’Connor herself worked at Jacobi Hospital in the emergency room as a clerk and then transferred to the Department of Laboratories and Medicine where she was director of laboratory purchasing. Viewed within this context, the testimony adduced at the hearing from James Lampasso, a friend who was an assistant director of clinical pathology at Jacobi Hospital and who knew Mrs. O’Connor professionally and socially for 25 years, and from Mrs. O’Con-nor’s daughters, who are both licensed practical nurses, is most illuminating.

James Lampasso’s father was suffering from cancer in 1969. During the course of a conversation with Mrs. O’Connor, James Lampasso expressed his own father’s desire not to be kept alive by artificial methods. In response, Mrs. O’Connor stated: "Yes * * * I would never want to be a burden on anyone * * * nature should take its course and not use further artificial means”. James Lampasso discussed this matter again with Mrs. O’Connor "around 1973 or '74”, and her feelings remained the same.

The testimony of Mrs. O’Connor’s daughters was equally, if not more, compelling. In November 1984, after recovering from a heart attack, Mrs. O’Connor stated to hero daughters that: "she was very glad to be home, very glad to be out of the hospital and hope[d] she would never have to be back in one again and would never want any sort of * * * life support systems to maintain or prolong her life” (emphasis supplied). Mrs. O’Connor reiterated her position during Christmas of that year when she told her daughters that: "in the event she became ill and unable to care for herself * * * she did not want any type of life support or life sustaining system” (emphasis supplied).

Under these circumstances, we agree with the Supreme Court that Mrs. O’Connor’s desires, expressed when she was competent, to decline any life sustaining treatment, including a nasogastric tube and intravenous feeding, in her current condition, was established by clear and convincing evidence at the hearing. In so holding, we reject the petitioner’s argument that the petition must be granted because Mrs. O’Connor did not specifically delineate, when competent, the particular artificial life support systems that she wished to have withdrawn or withheld. Such an argument places an unfair burden on those who are not well versed in the area of modern medical technology and, in a broader sense, reflects a failure on its proponent’s part, to appreciate the constant advances that are made in the area of medical technology.

Accordingly, the judgment appealed from should be affirmed.

* In addressing the likelihood, as testified to by Mrs. O’Connor’s attending physician, that she would experience pain if the intravenous feeding was discontinued, the Supreme Court accurately noted that the likelihood of pain was disputed by the respondents’ medical expert who also testified that any pain could be alleviated by pain-killers.