Eichner, Application of
| Decision Date | 06 December 1979 |
| Citation | 102 Misc.2d 184,423 N.Y.S.2d 580 |
| Parties | In The Matter of the Application of Father Philip K. EICHNER, S. M., Petitioner, for an Order Appointing Father Philip K. Eichner, S. M., Committee of the Person and Property of the Respondent herein and with Additional Powers as Said Committee as outlined hereinafter on Behalf of Brother Joseph Charles Fox, Respondent. |
| Court | New York Supreme Court |
Robert C. Minion, Garden City, guardian ad litem.
Furey & Mooney, Hempstead, for Nassau Hospital, by Raymond J. Furey, Hempstead.
Denis Dillon, Dist. Atty., Nassau County, by William C. Donnino, Edward W. McCarty, III, Asst. Dist. Attys., Mineola.
Robert Abrams, Atty. Gen., by Sall J. Sidoti, Asst. Atty. Gen., New York City.
Alfred Besunder, Director, Mental Health Information Service, Mineola.
Hahn, Hahn & Ford, Williston Park, for The Catholic Lawyers Guild of the Diocese of Rockville Centre, amicus curiae.
A. Lawrence Washburn, Jr., New York City, for Human Life Amendment Group, amicus curiae.
Thomas J. Dillon, Manhasset, for New York State Right to Life Committee, Inc., amicus curiae.
This case presents an unusually complicated legal problem without precedent in the law of this State whether a committee of the person should be appointed for an individual who was recently of sound mind but who has allegedly become incompetent as a result of severe physical maladies and whether that committee should be authorized to cause the withdrawal from the incompetent of life-supporting systems characterized as extraordinary. The relief requested of this Court will, according to the medical testimony, have the most far-reaching and final effect upon the incompetent; it will, in all likelihood, result in his death within a short period of time. In addition, the relief, unless strictly defined and limited, could conceivably have serious and profound consequences for the future welfare of all of the citizens of this State. Accordingly, an extended discussion is necessary both to describe the basis for a conclusion and to establish clearly the demarcations beyond which this decision cannot be said to go.
This matter came before the Court by way of a verified petition dated October 22 On September 25, 1979, Brother Joseph Charles Fox, 83 years old but in good health, entered Nassau Hospital to undergo certain medical tests. On October 1, 1979, Brother Fox reentered the hospital and, at about 10:00 A.M. on the following day, underwent hernia surgery. Brother Fox never regained consciousness after the surgery. (Petition PP 4-5)
1979 and subscribed by petitioner, Father Philip K. Eichner, a priest of the Roman Catholic Church, President of Chaminade High School and Director of the Society of Mary at Chaminade, a religious community within the Roman Catholic Church which is devoted to social welfare and the education of youth. The petition and supporting papers set forth the following facts.
Accompanying the petition were affidavits from three physicians, including two neurosurgeons, describing the medical condition of Brother Fox. Dr. Edward Kelly, a surgeon and Brother Fox's treating physician, stated that, during the surgery on October 2, at about 11:10 A.M., Brother Fox suffered a severe cardio-respiratory arrest. Despite extensive and heroic resuscitative measures, Brother Fox was afflicted with a diffuse cerebral and brain stem anoxia as a consequence of the arrest. (Kelly Afft. PP 3-4)
As a result of the anoxia, Brother Fox had remained in a coma without spontaneous respiration and had been maintained by a mechanical respirator. His responses to stimuli were minimal, his right pupil was pinpoint and he was afflicted with myoclonic volleys, which are in the nature of spasmodic movements of the body. Various brain tests, including an electroencephalogram, indicated "minimal activity." (Poloukhine Afft. PP 7-12; Burstein Afft. PP 7-12) The conclusion of the physicians was that, despite some subsequent changes, Brother Fox is in a deep coma with loss of respiratory function and is in "a permanent vegetative state" with a prognosis of "lethalis." (Kelly Afft. PP 8-10; Poloukhine Afft. P 15; Burstein Afft. P 14)
The victim of this unhappy fate has, from the age of 16 until the present 66 years later, been a Brother in the Membership of the Society of Mary. According to Father Eichner, Brother Fox has spent his many years in this religious order in the service of its goals of education and social welfare, in the pursuance of which he foreswore all secular concerns and took vows of poverty, chastity and obedience. (Petition PP 9-11) Father Eichner stated that Brother Fox has no estate, either real or personal. (Petition P 12)
The petition, pursuant to New York Mental Hygiene Law §§ 78.01 and 78.03, asked that Father Eichner be named the Committee of the person and property of Brother Fox on the ground that he is incompetent. The petition further requested that the Committee be granted the right to withdraw the "extraordinary life support systems" on which Brother Fox is being maintained. Father Eichner stated that this is what Brother Fox would want "if by some miracle (he) were able to communicate with the court * * *." (Petition P 18) In the alternative, the petition asked that the Committee, Nassau Hospital and Brother Fox's personal physician be directed to consult about withdrawal of the life-support systems and, if such consultation leads to a determination that Brother Fox is not now and will not ever be "capable of rational, sapient or conscious thought," has irreversible brain damage and is in "a permanent vegetative state," then an order be entered authorizing the medical authorities and the Committee to discontinue the "extraordinary life support systems" without any civil or criminal consequences. (Petition PP 2-3, 7) The petition further requested that, if the Court were to decline to name Father Eichner as the Committee for Brother Fox, it name Norbert Mechenbier, nephew of Brother Fox and so-called representative of the next of kin, as Committee for the same purpose. (Petition P 8) The petition indicated that Nassau Hospital had refused to turn off the life-support systems. (Petition P 20).
Also submitted in support of the petition was an affidavit by Norbert Mechenbier purporting to represent the views of Brother Based upon all of the foregoing, this Court issued an Order to Show Cause on October 23, 1979. The order directed any interested party to show cause on November 7, 1979 why an order should not be issued as requested in the petition. The order also directed that the order and the petition be served upon Brother Fox's relatives, the District Attorney of Nassau County, the Attorney General of New York State, the Mental Health Information Service, Nassau Hospital and Dr. Kelly. Finally, the order appointed Robert C. Minion, Esq., guardian ad litem to protect the rights and interests of Brother Fox.
Fox's relatives. Mr. Mechenbier indicated that Brother Fox's sole surviving relatives are ten nieces and nephews, of whom he is one. He averred that he had personally spoken to all the relatives about the problem and that all agreed that this petition should be granted. (Mechenbier Afft. pp. 5-6)
On the return date, the District Attorney of Nassau County appeared and requested time to prepare a position. Accordingly, the Court directed that a hearing would be held on November 14, 1979 and, subsequently, that the District Attorney could present his witnesses on November 16, 1979. Subsequent to the hearing, the Court received memoranda from the District Attorney and three amici curiae, the New York State Right to Life Committee, Inc., the Human Life Amendment Group and The Catholic Lawyers Guild of the Diocese of Rockville Centre. The amici curiae, although following different lines of reasoning, unanimously concluded that the artificial life-support systems maintaining Brother Fox could properly be withdrawn on the facts of this case. The District Attorney opposed any such relief.
From all the evidence presented in this case, this Court makes the following findings about Brother Fox's medical condition. As a result of diffuse cerebral and subcortical anoxia brought on by cardiac arrest suffered on October 2, 1979, Brother Fox lost the ability to then respirate spontaneously and fell into a comatose, vegetative state in which he has since been maintained through use of a respirator. Although certain alterations for the better were detected on October 17 and November 6, 1979, Brother Fox's condition has since deteriorated. He is in a chronic vegetative and akinetic mute state as a result of which only certain lower vegetative functions operate. The higher functions of the brain, the so-called cognitive and sapient functions, have been lost and it is highly improbable that they will ever return. To the extent that any further improvements may occur, they will relate only to Brother Fox's vegetative functioning and will occur within the persisting clinical framework of a vegetative state. It was the unanimous conclusion of the physicians who testified in this case, that, to a reasonable degree of medical certainty, there is no reasonable possibility that Brother Fox will ever return from the state he is now in to a condition in which the cognitive and sapient powers of the brain the ability to feel, see, think, sense, communicate, feel emotions and the life operate. The prognosis is that Brother Fox, whether on or off the respirator, will die.
In addition to medical evidence, the Court also heard testimony about Brother Fox, Father Eichner, the religious community of which they are a part and the religious views adhered to by the community. Parenthetically, the Court notes that insofar as evidence concerning religious...
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