52 N.Y.2d 363, Matter of Storar

Citation:52 N.Y.2d 363, 438 N.Y.S.2d 266
Party Name:Matter of Storar
Case Date:March 31, 1981
Court:New York Court of Appeals

Page 363

52 N.Y.2d 363

438 N.Y.S.2d 266

In the Matter of John STORAR. Charles S. SOPER, as Director of Newark Developmental Center, et al., Appellants,


Dorothy STORAR, Respondent. In the Matter of Philip K. EICHNER, On Behalf of Joseph C. Fox, Respondent,


Denis DILLON, as District Attorney of Nassau County, Appellant.

New York Court of Appeals

March 31, 1981.

[438 N.Y.S.2d 268] Stephen R. Sirkin, Dist. Atty. (John B. Nesbitt, Palmyra, of counsel), for Dist. Atty. of Wayne County, appellant in the first above-entitled proceeding.

Robert Abrams, Atty. Gen. (Stanley Fishman, Asst. Atty. Gen., Shirley Adelson Siegel, Sol. Gen. and Vincent M. Barone, Asst. Atty. Gen., of counsel), for Charles S. Soper, appellant in the first above-entitled proceeding.

James I. De Point, Palmyra, for respondent in the first above-entitled proceeding.

Arlene A. Hughes, Syracuse, guardian ad litem for John Storar in the first above-entitled proceeding.

Denis Dillon, Dist. Atty. (William C. Donnino, Anthony J. Girese and Judith R. Sternberg, Asst. Dist. Attys., of counsel), for appellant in the second above-entitled proceeding.

William F. Levine, Michael B. Grossman, Mineola, Bertram B. Daiker and George Danzig Levine, Port Washington, for respondent in the second above-entitled proceeding.

Robert C. Minion, Garden City, guardian ad litem pro se, and John F. Mulholland, Garden City, for guardian ad litem in the second above-entitled proceeding.

Jacqueline Nolan-Haley, New York City, for Americans United for Life, amicus curiae in the second above-entitled proceeding.



In these two cases the guardians of incompetent patients objected to the continued use of medical treatments or measures to prolong the lives of the patients who were diagnosed as fatally ill with no reasonable chance of recovery. In Matter of Eichner, Brother Fox, an 83-year-old member of the Society of Mary, was being maintained by a respirator in a permanent vegetative state. The local director of the society applied to have the respirator removed on the ground that it was against the patient's wishes as expressed prior to his becoming incompetent. In Matter of Storar, a State official applied for permission to administer blood transfusions to a profoundly retarded 52-year-old man with terminal cancer of the bladder. The patient's mother, who was also his legal guardian, refused consent on the ground that the transfusions would only prolong his discomfort and would be against his wishes if he were competent. In each case the courts below have found that the measures should have been discontinued.

The orders of the lower courts, Sup., 433 N.Y.S.2d 388; 102 Misc.2d 184, 423 N.Y.S.2d 580, were stayed and the treatments continued pending appeals to the Appellate Division, 78 A.D.2d 1013, 434 N.Y.S.2d 46; 73 A.D.2d 431, 426 N.Y.S.2d 517, and this court. Nevertheless both of the patients have died, thus rendering these particular controversies moot. 1 However, the under [438 N.Y.S.2d 269] lying issues are of public importance, are recurring in other courts throughout the State and, as these cases illustrate, are likely to escape full appellate review even when the appeals have been expedited. Under those circumstances we may, and often have addressed the issues despite the mootness (see, e. g., Matter of Oliver v. Postel, 30 N.Y.2d 171, 177-178, 331 N.Y.S.2d 407, 282 N.E.2d 306; Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 436-437, 423 N.Y.S.2d 630, 399 N.E.2d 518), particularly when, as here, the controlling principles have not been previously identified and discussed by this court (cf. Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876).

It should be emphasized though, that any guidance we may provide for future classes is necessarily limited. Unlike the Legislature, the courts are neither equipped nor empowered to prescribe substantive or procedural rules for all, most, or even the more common contingencies. Our role, especially in matters as sensitive as these, is limited to resolving the issues raised by facts presented in particular cases. 2

On the records we have concluded that the order should be reversed in the Storar case. In the Eichner case the order should be modified and resolved on a narrower ground than relied on by the Appellate Division.


For over 66 years Brother Joseph Fox was a member of the Society of Mary, a Catholic religious order which, among other things, operates Chaminade High School in Mineola. In 1970 Brother Fox retired to Chaminade where he resided with the religious members of the school's staff and continued to perform limited duties. In late summer of 1979 he sustained a hernia while moving some flower tubs on a roof garden at the school. He was then 83 years old and, except for the hernia, was found to be in excellent health. His doctor recommended an operation to correct the condition and Brother Fox agreed.

While the operation was being performed on October 1, 1979 he suffered cardiac arrest, with resulting loss of oxygen to the brain and substantial brain damage. He lost the ability to breathe spontaneously and was placed on a respirator which maintained him in a vegetative state. The attending physicians informed Father Philip Eichner, who was the president of Chaminade and the director of the society at the school, that there was no reasonable chance of recovery and that Brother Fox would die in that state.

After retaining two neurosurgeons who confirmed the diagnosis, Father Eichner requested the hospital to remove the respirator. The hospital, however, refused to do so without court authorization. Father Eichner then applied, pursuant to article 78 of the Mental Hygiene Law, to be appointed committee of the person and property of Brother Fox, with authority to direct removal of the respirator. The application [438 N.Y.S.2d 270] was supported by the patient's 10 nieces and nephews, his only surviving relatives. The court appointed a guardian ad litem and directed that notice be served on various parties, including the District Attorney.

At the hearing the District Attorney opposed the application and called medical experts to show that there might be some improvement in the patient's condition. All the experts agreed, however, that there was no reasonable likelihood that Brother Fox would ever emerge from the vegetative coma or recover his cognitive powers.

There was also evidence, submitted by the petitioner, that before the operation rendered him incompetent the patient had made it known that under these circumstances he would want a respirator removed. Brother Fox had first expressed this view in 1976 when the Chaminade community discussed the moral implications of the celebrated Karen Ann Quinlan case, in which the parents of a 19-year-old New Jersey girl who was in a vegetative coma requested the hospital to remove the respirator (see, Matter of Quinlan, 137 N.J.Super. 227, 348 A.2d 801, revd. 70 N.J. 10, 355 A.2d 647, cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289). These were formal discussions prompted by Chaminade's mission to teach and promulgate Catholic moral principles. At that time it was noted that the Pope had stated that Catholic principles permitted the termination of extraordinary life support systems when there is no reasonable hope for the patient's recovery and that church officials in New Jersey had concluded that use of the respirator in the Quinlan case constituted an extraordinary measure under the circumstances. Brother Fox expressed agreement with those views and stated that he would not want any of this "extraordinary business" done for him under those circumstances. Several years later, and only a couple of months before his final hospitalization, Brother Fox again stated that he would not want his life prolonged by such measures if his condition were hopeless.

In a thoughtful and comprehensive opinion, Mr. Justice ROBERT C. MEADE at the Supreme Court held that under the circumstances Brother Fox would have a common-law right to decline treatment and that his wishes, expressed prior to becoming incompetent, should be honored. The court noted that the evidence of his stated opposition to use of a respirator to maintain him in a vegetative state was "unchallenged at every turn and unimpeachable in its sincerity."

The Appellate Division modified in an exhaustive and wide-ranging opinion by Presiding Justice MILTON A. MOLLEN. The court held that the patient's right to decline treatment was not only guaranteed by the common law but by the Constitution as well. It also found that this right should not be lost when a patient becomes incompetent and, if a patient has not made his wishes known while competent as Brother Fox had done, an appropriate person should be appointed to express the right on his behalf by use of "substituted judgment". The court went on to establish an elaborate set of procedures to be followed by doctors, hospitals, family members, parties and the courts before future applications of this nature may be entertained or granted.


John Storar was profoundly retarded with a mental age of about 18 months. At the time of this proceeding he was 52 years old and a resident of the Newark Development Center, a State facility, which had been his home since the age of 5. His closest relative was his mother, a 77-year-old widow who resided near the facility. He was her only child and she visited him almost daily.

In 1979 physicians at the center noticed blood in his urine and asked his mother for permission to conduct diagnostic tests. She initially refused but after discussions with the center's staff...

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