183 A.D.2d 10, Grace Plaza of Great Neck, Inc. v. Elbaum

Citation183 A.D.2d 10, 588 N.Y.S.2d 853
Party NameGrace Plaza of Great Neck, Inc. v. Elbaum
Case DateSeptember 21, 1992
CourtNew York Supreme Court Appelate Division, Second Department

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183 A.D.2d 10

588 N.Y.S.2d 853

GRACE PLAZA OF GREAT NECK, INC., Appellant-Respondent,

v.

Murray ELBAUM, Respondent-Appellant.

Supreme Court of New York, Second Department

September 21, 1992.

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[588 N.Y.S.2d 854] Proskauer Rose Goetz & Mendelsohn, New York City (Steven E. Obus, of counsel), for appellant-respondent.

Joseph D. Pope, New York City, for respondent-appellant.

James Bopp, Jr., Thomas J. Marzen, and Deborah Hall Gardner, Indianapolis, Ind., for Counsel for Ethics and Advocacy Task Force of Nursing Home Action Group, amicus curiae.

Susan C. Waltman, New York City, for Greater New York Hosp. Ass'n, amicus curiae.

M. Rose Gasner, New York City, for Society for the Right to Die, Inc., and Fenella Rouse, New York City, for Concern for Dying, amici curiae (one brief filed).

Meyer, Suozzi, English & Klein, P.C., Mineola, (Michael A. Ciaffa and David A. Smith of counsel), for Coalition of Institutionalized Aged and Disabled, Inc., Friends and Relatives of Institutionalized Aged, Inc., and the Nursing Home Community Coalition of New York State, amici curiae (one brief filed).

Melinda Aikins Bass, White Plains, for Nassau County Health Facilities Ass'n, amicus curiae.

O'Connell and Aronowitz, Albany (Cornelius D. Murray and Sarah W. Birn, of counsel), for New York State Health Facilities Ass'n, Inc., amicus curiae.

Before MANGANO, P.J., and BRACKEN, LAWRENCE and ROSENBLATT, JJ.

BRACKEN, Justice.

The Supreme Court held that a health care facility which provides life-saving medical treatment to an incompetent patient in accordance with the orders of the patient's attending physician, but over the objections of the patient's conservator, forfeits the fees to which it would otherwise [588 N.Y.S.2d 855] be entitled as a matter of contract, at least where the conservator in question claims to know what the patient's own wishes would be

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regarding the administration of life-saving medical treatment. We believe that this holding is erroneous as a matter of law. It does nothing to advance the right of incompetent persons to refuse medical treatment, but instead exalts the "right" of surrogate decision makers, without any written authorization from the patient, to dictate what kind of medical treatment an incompetent patient should receive. New York law does not recognize such a "right". Instead New York law denies to all persons, whether family members or not, the right to decide when another person should die (see, Matter of Westchester County Med. Ctr. [O'Connor], 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607; 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). For these reasons, we conclude that the order must be reversed insofar as appealed from.

In September 1986 the plaintiff nursing home agreed to provide certain services to Jean Elbaum, an unconscious patient who could not survive without artificial nutrition and hydration, on condition that the defendant Murray Elbaum pay for the services. Mrs. Elbaum had never executed a living will. 1 Mr. Elbaum entered into this contract knowing that the services to be provided by the plaintiff would include the maintenance of a gastrointestinal feeding tube which had already been inserted at North Shore Hospital.

In October 1987 Mr. Elbaum demanded the cessation of nutrition and hydration, claiming that Mrs. Elbaum would have made a like demand, if she had been able to do so. Responding that there was no "clear indication" of Mrs. Elbaum's desires in this respect, and also asserting that its own ethical standards would, in any event, prohibit it from withdrawing life-saving medical treatment from one of its patients, the plaintiff refused to comply with Mr. Elbaum's demand and encouraged him to transfer Mrs. Elbaum to another, presumably more compliant, nursing home.

Mr. Elbaum's response was to breach his contract by refusing to pay for any of the services which were thereafter

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rendered by the plaintiff, including those services needed to save Jean Elbaum's life; the record does not reveal any effort on his part to locate an alternative nursing home. Efforts made by the plaintiff to locate another facility were fruitless; those facilities which were contacted "would not admit the patient for the purpose of removing the tube".

To uphold the decision of the Supreme Court, we would have to promulgate a new rule of law: that health care providers must withdraw life support from their incapacitated patients, even in the absence of court authorization, whenever the incapacitated patient's personal representative, claiming to act in the name of the patient's own "right to die", demands the withdrawal of life support. This rule would obviate the need for any judicial intervention for the purpose of defining what the wishes of an incapacitated patient actually are by attaching a presumption of infallibility to the conservator's opinion as to the nature of those wishes, thus making the conservator the final arbiter of the conservatee's life or death. While this rule may one day become part of the law in this State, if certain proposals are ever enacted into law, 2 it is not the law now, nor was it the law at the time of the events herein.

[588 N.Y.S.2d 856] The defendant Murray Elbaum argues that he rightfully refused to pay the plaintiff nursing home for the services it was rendering to his wife, Jean Elbaum, pursuant to its contract with him. He contends that as soon as he informed the plaintiff of his belief that Jean Elbaum, if able to do so, would have refused nutrition and hydration, the plaintiff should have withdrawn nutrition and hydration, and should have consequently caused its patient's death, even in the absence of a court order. Mr. Elbaum also argues, in support of his counterclaims, that in continuing to furnish nutrition and hydration to Mrs. Elbaum, the plaintiff committed a battery.

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Mr. Elbaum contends, and our dissenting colleague agrees, that our decision in Elbaum v. Grace Plaza of Great Neck, 148 A.D.2d 244, 544 N.Y.S.2d 840 is dispositive of these arguments, because the text of our decision in that case contains statements to the effect that the plaintiff's services were "undesired". It is true that this is precisely what our court found. In holding that, if competent, Jean Elbaum would have refused nutrition and hydration, we concluded that the plaintiff's furnishing of such services was, as a matter of fact, "undesired" by her. What we obviously did not hold, however, is that the plaintiff acted wrongfully in keeping Mrs. Elbaum alive until the actual nature of her desires had in fact been proved.

Mr. Elbaum argues that because, in 1989, this court found that Mrs. Elbaum would, if able, refuse the life-saving treatment offered to her, the plaintiff nursing home should have known, in 1987, that those were in fact Mrs. Elbaum's wishes. This argument attributes to the plaintiff not only the power to see into the mind of a comatose patient, but the power to see into the minds of the members of an appellate court which, as of 1987, was not to be convened for another two years. Clearly, the plaintiff at no point knew Mrs. Elbaum's wishes, nor could it ever have known anything more than Mr. Elbaum's view as to what those wishes were. The rule which prevents physicians from recovering payment for medical services which are not desired (e.g., Shapira v. United Med. Serv., 15 N.Y.2d 200, 257 N.Y.S.2d 150, 205 N.E.2d 293) should not be applied in a case where, because the patient is comatose, her desires cannot be known, but can only be deduced, with a greater or lesser degree of certainty, from evidence of her past conduct and past statements.

In Matter of Eichner, 73 A.D.2d 431, 450, 426 N.Y.S.2d 517, mod. on other grounds 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, this court stated that a physician who, without court authorization, deliberately causes the death of a "vegetative" patient, could face criminal prosecution for homicide (citing Penal Law §§ 120.30, 125.00, 125.15[3], 125.25[1][b]; 2 Wharton, Criminal Law, § 137 [14th ed]; Repouille v. United States, 165 F.2d 152, 153; see also, In re Presidents and Dir. of Georgetown College, 331 F.2d 1000, n. 18, cert. denied 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746; Jones v. United States, 308 F.2d 307; Payne v. Marion Gen. Hosp., 549 N.E.2d 1043 [Ind.App.]; People v. Roberts, 211 Mich. 187, 178 N.W. 690; cf., Barber v. Superior Court of State of California for Los Angeles County, 147 Cal.App.3d 1006, 195 Cal.Rptr. 484; Annotation, Homicide--Physician's Withdrawal of Life Supports from Comatose Patient, 47 ALR4th 18; Comment, The Crime of Aiding

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Suicide, 30 Yale LJ 408 [discussing People v. Roberts, supra ]. In modifying our decision in Matter of Eichner (supra), the Court of Appeals did not disagree with this assertion, and stated that physicians who engage in such conduct "act at their peril" unless prior judicial approval is obtained (Matter of Storar, 52 N.Y.2d 363, 382, 438 N.Y.S.2d 266, 420 N.E.2d 64, supra ), thus reaffirming the rule that passively [588 N.Y.S.2d 857] causing death can constitute criminal homicide (see, People v. McDonald, 49 Hun 67, 1 N.Y.S. 703 [no defense that infant's death by starvation resulted from inaction]; see also, People v. Phillips, 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353 [doctor liable for murder based on advice to patient to forego life-saving surgery]. Mr. Elbaum now contends that the plaintiff acted "at its peril" not because it was willing to withdraw life support from an incompetent patient without court permission, but because it refused to withdraw life support from an incompetent patient without court permission. We cannot accept this argument.

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