Fosmire v. Nicoleau

• Citation: 536 N.Y.S.2d 492,144 A.D.2d 8
• Parties: In the Matter of Francis J. FOSMIRE, etc., Petitioner, v. Denise J. NICOLEAU, et al., Respondents.
• Decision Date: 09 January 1989
• Court: New York Supreme Court Appellate Division

Page 492

536 N.Y.S.2d 492

144 A.D.2d 8

In the Matter of Francis J. FOSMIRE, etc., Petitioner, v. Denise J. NICOLEAU, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Jan. 9, 1989.

Garfunkel, Wild & Travis, Great Neck (Norton Travis, of counsel), for petitioner.

Donald T. Ridley, Brooklyn, for respondents.

Before MOLLEN, P.J., and MANGANO, BROWN and SULLIVAN, JJ.

MOLLEN, Presiding Judge.

In this case, we are asked to review the procedures to be followed and the factors to be weighed in resolving the conflicting interests which arise when a competent adult refuses potentially lifesaving medical treatment because such treatment is in contravention of that individual's religious beliefs and/or expressed desire to be treated by alternative methods. We conclude that, under the circumstances of this case, the Supreme Court erred in issuing an ex parte order authorizing the administration of blood transfusions contrary to that individual's wishes and religious beliefs.

The facts of this case are essentially undisputed. Denise J. Nicoleau, a 36-year-old pregnant practical nurse, was admitted to the Brookhaven Memorial Hospital Center (hereinafter Brookhaven Memorial) on December 29, 1988, to deliver her baby by Cesarean section. Approximately one month before her admission into the hospital, Mrs. Nicoleau, a Jehovah's Witness, executed an admission consent form prepared by Brookhaven Memorial in which she consented to the administration of various medical procedures related to the birth of her baby, but specifically excluded "the administration of blood, pooled plasma or other derivatives", which treatment was contrary to her religious beliefs. ^* Mrs. Nicoleau also informed her attending physician during her pregnancy that, because of her religious beliefs, she would not consent to a blood transfusion. Mrs. Nicoleau's husband, a radiologist technician, is also a Jehovah's Witness.

Shortly after her admission to the hospital on December 29, Mrs. Nicoleau gave birth to a healthy baby boy. Later that evening, however, she experienced severe hemorrhaging from her uterus which caused her hemoglobin count to drop to approximately 4, which was well below the normal hemoglobin range of 12 to 14. In response to the attending physician's request for permission to provide Mrs. Nicoleau with a blood transfusion, both Mrs. Nicoleau and her husband refused to consent to the transfusion.

Early the next morning, Brookhaven Memorial applied for a court order authorizing the hospital to administer necessary blood transfusions to Mrs. Nicoleau. The Supreme Court, without conducting a hearing and without in any respect communicating with the Nicoleaus or their representatives, issued an ex parte order authorizing Brookhaven Memorial "to administer necessary blood transfusions to patient Denise Nicoleau". Shortly after the order was signed, which order did not provide for service thereof upon the Nicoleaus, and over the protestations of Mr. Nicoleau and other family members who were at Mrs. Nicoleau's bedside, Mrs. Nicoleau was given a blood transfusion. A second transfusion was administered two days later.

Mrs. Nicoleau has now applied to this court, pursuant to CPLR 5704(a), for an order vacating the Supreme Court's ex parte order. In the supporting papers submitted on Mrs. Nicoleau's behalf by her husband and her attorney, it was explained that the decision to forego blood transfusions is premised on Mrs. Nicoleau's religious beliefs as a Jehovah's Witness, as well as the medical risks which she perceived to be involved in such transfusions, i.e., the possibility of transmitted AIDS or other infectious diseases. It was further asserted that Mrs. Nicoleau does not want to die and that while she would not consent to undergo blood transfusions, she will accept alternative nonblood medical treatments which, in some instances, are purported to be as successful as blood transfusions. Based on the facts and circumstances of this case, we are of the opinion that vacatur of the trial court's order is warranted.

We hold that the Supreme Court erred in issuing its order authorizing the requested blood transfusions in the absence of notice to or an opportunity to be heard by Mrs. Nicoleau or her representatives. Ex parte applications are generally disfavored by the courts, unless expressly authorized by statute, because of the attendant due process implications caused by proceeding without notice (see, e.g., Luckey v. Mockridge, 112 App.Div. 199, 98 N.Y.S. 335; Lohne v. City of New York, 25 A.D.2d 440, 266 N.Y.S.2d 909; Papacostopulos v. Morrelli, 122 Misc.2d 938, 472 N.Y.S.2d 284; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C2211:6, at 32-33). Clearly, given the important and serious nature of the rights involved in cases such as this, the court should forego taking any action on applications to administer medical treatment against the will of the patient until the patient and/or his or her legal representatives have been notified thereof and given an opportunity to be heard. In many such instances, due to the emergency nature of the relief requested, Judges have conducted their inquiry at the patient's bedside with the patient's family members and attending physicians in attendance (see, e.g., Matter of Jamaica Hospital, 128 Misc.2d 1006, 491 N.Y.S.2d 898; Matter of President & Directors of Georgetown Coll., 331 F.2d 1000, reh. den. 331 F.2d 1010 cert den. sub nom, Jones v. President & Directors of Georgetown Coll., 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746; United States v. George, 239 F.Supp. 752). Under no circumstances, however, should the court issue an order authorizing medical treatment which is known to be in violation of the patient's expressed wishes and/or religious beliefs without first making every effort to communicate with that patient or his or her representatives and to fully comprehend the patient's state of mind and wishes. The error in this case was further compounded by the fact that the Supreme Court's order failed to provide for service thereof upon Mrs. Nicoleau or her husband prior to the administration of the blood transfusion. As a result, the Nicoleaus were unable to seek prompt legal review of the trial court's order before the transfusion occurred. Under these circumstances, Mrs. Nicoleau's constitutional rights of due process were clearly violated and the Supreme Court's order was improper.

We have been informed that Mrs. Nicoleau's medical condition has improved and that there exists little likelihood that further transfusions will be necessary. Thus, the particular controversy before this court has, for the moment, been rendered moot. The underlying issue in this case, however--i.e., under what circumstances, if any, a competent adult may be required to undergo potentially life-saving medical treatment which is contrary to his or her expressed wishes or stated religious beliefs--is one of public importance and, because of the expedient nature of the relief requested, often evades appellate review. In view thereof, as well as the possibility that Mrs. Nicoleau's attending physicians might determine that another blood transfusion is necessary in the near future, we take this opportunity to outline the appropriate standards to be applied by the courts in considering applications of this nature (see, Matter of Storar, 52 N.Y.2d 363, 369-370, 438 N.Y.S.2d 266, 420 N.E.2d 64; Wons v. Public Health Trust of Dade County, 500 So.2d 679, 684 ).

The law in this State has consistently recognized that every adult of sound mind has the right to determine what shall be done to his or her own body and may decline medical treatment, even if life saving (see, Matter of Westchester County Med. Center 72 N.Y.2d 517, 528, 534 N.Y.S.2d 886, 531 N.E.2d 607; Matter of Storar, supra, 52 N.Y.2d at 376, 438 N.Y.S.2d 266, 420 N.E.2d 64; Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129-130, 105 N.E. 92; Matter of Delio v. Westchester County Med. Center, 129 A.D.2d 1, 13-14, 516 N.Y.S.2d 677; Public Health Law §§ 2504, 2805-d). Thus, even in a case involving a mentally ill patient, the Court of Appeals held that, "even though the recommended treatment may be beneficial or even necessary to preserve the patient's life * * * it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires * * * This right extends equally to mentally ill persons who are not to be treated as persons of lesser status or dignity because of their illness" (Rivers v. Katz, 67 N.Y.2d 485, 493, 504 N.Y.S.2d 74, 495 N.E.2d 337). This right of self-determination must also be respected when a patient becomes physically incompetent, if it is established by clear and convincing evidence that the individual, while competent, indicated that he or she did not want certain medical procedures performed (see, Matter of Westchester County Med. Center supra; Matter of Storar, supra; Matter of Delio v. Westchester County Med. Center, supra ). The right of a competent adult to refuse medical treatment, even if premised upon fervently held religious beliefs, is not unqualified, however, and may be overriden by a compelling State interest (see, Matter of Eichner 73 A.D.2d 431, 465-467, 426 N.Y.S.2d 517, mod. 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, supra; Matter of Delio v. Westchester County Med. Center, supra, 129 A.D.2d at 22-23, 516 N.Y.S.2d 677). Four compelling State interests have been identified by the courts in cases involving medical treatment decisions: (1) the preservation of life, (2) the prevention of suicide, (3) the protection of innocent third parties, and (4) the maintenance of the ethical integrity of the medical profession (see, Matter of Eichner supra; Matter of Delio v....