Delio v. Westchester County Medical Center

• Decision Date: 01 June 1987
• Citation: 516 N.Y.S.2d 677,129 A.D.2d 1
• Parties: In the Matter of Julianne DELIO, etc., Appellant, v. WESTCHESTER COUNTY MEDICAL CENTER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 677

516 N.Y.S.2d 677

129 A.D.2d 1

In the Matter of Julianne DELIO, etc., Appellant, v. WESTCHESTER COUNTY MEDICAL CENTER, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 1, 1987.

Kramer, Dillof, Tessel, Duffy & Moore, New York City (Judith A. Livingston, of counsel), for appellant.

Henry J. Logan, Co. Atty., White Plains (Terry Jane Ruderman, of counsel), for respondent Westchester County Medical Center.

James D. Hopkins, Armonk, guardian ad litem on behalf of the conservatee Daniel Delio.

Fenella Rouse and Elena N. Cohen, New York City (Zavin, Sinnreich & Wasserman [Richard Wasserman], of counsel), for Society For The Right To Die, Inc., amicus curiae.

Before MOLLEN, P.J., and THOMPSON, BROWN and RUBIN, JJ.

THOMPSON, Justice.

We address on this appeal the controversial and profoundly difficult question of whether the common-law right to decline medical treatment recognized by the courts of this State encompasses a right to remove or withhold artificial means of nourishment and hydration to an individual in a persistent vegetative state with no hope of recovery. Our analysis requires a careful balancing of the patient's firmly expressed desire to avoid efforts to sustain his life under circumstances which he would have considered degrading, demeaning and totally nonpurposeful, and the countervailing societal interest in the preservation of life. The individual's right to decline life-sustaining medical treatment must under certain circumstanc yield to the limitations imposed by the State upon the exercise of a person's right to refuse treatment. While we are painfully aware of the responsibility which we undertake in reaching a determination in this matter, we are aided in our determination by the clear and convincing evidence presented at the hearing before the trial court that the patient for whom the application to withdraw medical treatment is made would, if competent, have rejected nutrition and hydration by artificial means and, in effect, would have chosen to allow the processes of nature to take their course. We conclude that, upon the facts of this case, the clearly expressed desires of the individual to die with dignity should be honored. Therefore, we reverse the judgment of the trial court and authorize the petitioner conservator to direct the discontinuance of life-sustaining medical treatment, including the provision of nutrition and hydration by artificial means.

I

At the time this proceeding was commenced, Daniel Delio, a married 33-year-old exercise physiologist, existed in a chronic vegetative state with no cognitive awareness and no hope for improvement as a result of complications from a routine surgical procedure undertaken to repair an anorectal fistula. The surgery was performed on May 19, 1986, at St. Agnes Hospital. ¹ During the course of the operation, Daniel suffered cardiac arrest with resulting severe and irreversible brain damage. The extent of his injury is, indeed, so substantial that Daniel has been diagnosed as being neocortically dead, that is to say that while he retains a portion of his brain stem functions which regulate certain reflex activity such as breathing, he no longer possesses any higher brain activity and, thus, has no awareness, thoughts or feelings.

The day following his surgery Daniel was transferred to the Westchester County Medical Center (hereinafter the Medical Center) where he remains. Daniel breathes spontaneously and does not require the assistance of a respirator. However, he cannot chew food or voluntarily swallow. Therefore, nutrition and hydration have been provided to Daniel by means of two artificial devices which were surgically inserted on June 13, 1986. One known as a gastrostomy tube was inserted into his stomach and the other known as a jejunostomy tube was inserted directly into his small intestines. These artificial devices permit Daniel to receive nutrition and hydration directly and bypass his mouth and esophagus.

In August of 1986 Daniel's wife of six years, Julianne Delio, who herself is an exercise physiologist, applied for an order appointing her as conservator of Daniel's personal and financial affairs and authorizing her as conservator to direct the discontinuance of all medical treatment provided him including the removal of the surgically-implanted feeding tubes and thereby the termination of the hydration and nutrition by artificial means. In this proceeding, Julianne named the Medical Center as well as the District Attorney of Westchester County as respondents. The District Attorney has declined active participation in this proceeding and has adopted the position that the application concerns a family matter under the supervision of the court. The Medical Center opposed Julianne's application on the ground that withdrawal of the feeding tubes would constitute a deliberate act which would cause Daniel's death contrary to its mission as a hospital to preserve life. The Medical Center was not opposed to aiding in Daniel's transfer to his home or to another facility but vigorously resisted any direction to compel it to act contrary to its ethical and moral standards.

Justice Anthony J. Cerrato of the Supreme Court, Westchester County, first heard the application for the appointment of a conservator. In October 1986 Julianne was appointed conservator of her husband without opposition by any party. That appointment is not at issue on this appeal. On the issue of the termination of the nutrition and hydration through artificial means, the court appointed former Appellate Division Justice James D. Hopkins as guardian ad litem to protect the rights and interests of Daniel. After extensive hearings were held on three separate dates, Justice Cerrato found the evidence clear and convincing that Daniel, while competent, had expressed his desire not to have his life sustained by artificial means if he were in a chronic vegetative state with no hope of recovery. Nevertheless, Justice Cerrato denied Julianne's application to withdraw the surgically inserted feeding tubes, finding that Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153, and its companion case Matter of Eichner v. Dillon, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, the leading New York authorities on "right to die" issues, were distinguishable in certain key features from the instant matter. Justice Cerrato concluded that while his "personal sympathies in this human tragedy [were] with the anguished wife, mother and relatives of Daniel Delio", he believed that "placing a judicial imprimatur on a decision to terminate the care in this case, in the absence of clear legislative or judicial guidance, is fraught with danger" (Matter of Delio v. Westchester County Med. Center, 134 Misc.2d 206, 214-215, 510 N.Y.S.2d 415).

In the absence of specific legislation for resolving requests to terminate life-sustaining treatment for incompetent patients or any decision from this State's highest court resolving the precise problem with which we are presented, we must confront on this appeal the moral, ethical, philosophical, social and legal questions raised by this proceeding. We hold that Julianne, as conservator of Daniel, is entitled to act in accordance with the clearly expressed wishes of her now-incompetent husband and we, therefore, reverse the judgment entered upon Justice Cerrato's decision. In doing so, we provide that the Medical Center may either directly comply with the wishes of the conservator and conservatee by terminating all artificial life-sustaining treatment including withdrawal of the feeding tubes, or, if the Medical Center determines that it is unwilling to take the steps necessary to terminate the provision of nutrition and hydration to Daniel, it shall assist and facilitate Daniel's transfer to a facility willing to carry out his wishes or to his home, where his wishes may be effectuated.

II

Prior to the onset of his comatose condition, Daniel was an energetic, active, healthy and fit young man in the prime of life. Indeed, Daniel was greatly concerned about his own physical health and fitness. He carefully monitored his diet, avoiding foods which might have a negative impact upon his health. Daniel was also a runner who had successfully completed three marathons.

Daniel was not only personally involved in the pursuit of fitness and health but his professional life was intimately connected with these values. He had earned a doctor of philosophy (hereafter PhD) degree in exercise physiology from Ohio State University. In the course of earning that degree, Daniel had received intensive scientific training including numerous courses in anatomy, physiology, biochemistry, nutrition, cardiovascular dynamics and the reading of electrocardiograms (hereinafter EKG). As a result of his scientific training, Daniel was very knowledgeable about the functioning of the human body. He understood the difference between the brainstem and the cortical functions of the brain. Daniel was employed as an exercise physiologist at Kings County Hospital prescribing exercise programs for patients suffering from hypertension or diabetes.

Daniel's education and personal lifestyle led him to become a markedly opinionated individual with clearly expressed ideas and strong views on the subject of maintaining an incompetent neocortically dead person on life-sustaining mechanisms. While there does not appear to be any evidence that Daniel executed a "living will" to express his wishes concerning the artificial continuance of his life if he were rendered comatose, there was substantial testimony presented at the hearing conducted before Justice Cerrato that Daniel's views and wishes on this subject had been expressed repeatedly to his relatives and professional colleagues over the years. The inescapable conclusion to be drawn from the hearing testimony is that Daniel,...