Westchester County Medical Center on Behalf of O'Connor, Matter of

Citation531 N.E.2d 607,72 N.Y.2d 517,534 N.Y.S.2d 886
Parties, 531 N.E.2d 607, 57 USLW 2241 In the Matter of WESTCHESTER COUNTY MEDICAL CENTER, on Behalf of Mary O'CONNOR, Appellant. Helen A. Hall et al., Respondents.
Decision Date14 October 1988
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

WACHTLER, Chief Judge.

Mary O'Connor is an elderly hospital patient who, as a result of several strokes, is mentally incompetent and unable to obtain food or drink without medical assistance. In this dispute between her daughters and the hospital the question is whether the hospital should be permitted to insert a nasogastric tube to provide her with sustenance or whether, instead, such medical intervention should be precluded and she should be allowed to die because, prior to becoming incompetent, she made several statements to the effect that she did not want to be a burden to anyone and would not want to live or be kept alive by artificial means if she were unable to care for herself.

The hospital has applied for court authorization to insert the nasogastric tube. The patient's daughters object claiming that it is contrary to her "expressed wishes", although they conceded at the hearing that they do not know whether their mother would want to decline this procedure under these circumstances, particularly if it would produce a painful death. The trial court denied the hospital's application, concluding that it was contrary to the patient's wishes. The Appellate Division affirmed, 139 A.D.2d 344, 532 N.Y.S.2d 133, with two Justices dissenting. The hospital has appealed by leave of the Appellate Division which also granted a stay permitting the patient to be fed intravenously while this appeal is pending.

We have concluded that the order of the Appellate Division should be reversed and the hospital's petition granted. On this record there is not clear and convincing proof that the patient had made a firm and settled commitment, while competent, to decline this type of medical assistance under circumstances such as these. 1

I.

The patient is a 77-year-old widow with two children, Helen and Joan, both of whom are practical nurses. After her husband's death in 1967 she lived alone in her apartment in the New York City area where she was employed in hospital administration. In 1983 she retired from her job after 20 years service.

Over the years a number of her close relatives died of cancer. Her husband died of brain cancer. The last two of her nine brothers died of cancer, one in 1975 and the other in 1977. During their final years she regularly visited them in the hospital and cared for them when they were home. In November 1984, after being informed that her stepmother had died of cancer in Florida, Mrs. O'Connor had an attack of congestive heart failure and was hospitalized. She was released from the hospital in December 1984.

In July of the following year she suffered the first of a series of strokes causing brain damage and related disabilities which rendered her unable to care for herself. She became passive, could only carry on limited conversations, and could not walk, eat, dress or care for her bodily needs without assistance from others. Upon her release from the hospital in August 1985, Mrs. O'Connor resided with her daughter Helen who, together with Joan and another woman, provided her with full-time care.

In December 1987, Mrs. O'Connor had a second major stroke causing additional physical and mental disabilities. She became unresponsive and unable to stand or feed herself. She had to be spoon-fed by others. Her gag reflex was also impaired, as a result of which she experienced difficulty swallowing and thus could eat only pureed foods. In this condition her daughters found that they could no longer care for her at home and, when she left the hospital in February 1988, she was transferred to the Ruth Taylor Institute (the Institute), a long-term geriatric care facility associated with the Westchester County Medical Center (the hospital). In conjunction with this transfer, her daughters submitted a document signed by both of them, to be included in her medical file, stating that their mother had expressed the wish in many conversations that "no artificial life support be started or maintained in order to continue to sustain her life", and that they wanted this request to be honored.

During the initial part of her stay at the Institute the staff found Mrs. O'Connor was cooperative, capable of sitting in a chair and interacting with her surroundings. However, in June her condition deteriorated. She became "stuperous, virtually not responsive" and developed a fever. On June 20, 1988, she was transferred from the Institute to the hospital.

At the hospital it was determined that she was suffering from dehydration, sepsis and probably pneumonia. The hospital staff also found that she had lost her gag reflex, making it impossible for her to swallow food or liquids without medical assistance. She showed marked improvement after receiving fluids, limited nourishment and antibiotics intravenously. Within a few days she became alert, able to follow simple commands and respond verbally to simple questions. However her inability to swallow persisted and her physician, Dr. Sivak, determined that a nasogastric tube should be used to provide more substantial nourishment. When Mrs. O'Connor's daughters objected to this procedure, the matter was brought before the hospital's ethics committee which found that it would be inappropriate to withhold this treatment under the circumstances.

On July 15, the hospital commenced this proceeding by order to show cause seeking court authorization to use the nasogastric tube, claiming that without this relief Mrs. O'Connor would die of thirst and starvation within a few weeks. In an opposing affidavit her daughters stated that this was against their mother's expressed wishes because before becoming incompetent, she had repeatedly stated that she did not want her life prolonged by artificial means if she was unable to care for herself. They noted the number of relatives she had comforted during prolonged final illnesses and urged that the effect of her statements should be evaluated against that background.

The hearing on the petition began on July 19 and concluded on July 21. Two medical experts testified regarding Mrs. O'Connor's condition: Dr. Sivak for the hospital and Dr. Wasserman for the respondents. With respect to the patient's statements concerning life-sustaining measures the respondents themselves both testified and called one additional witness, James Lampasso.

The treating physician, Dr. Sivak, testified that Mrs. O'Connor was suffering from multiinfarct dementia as a result of the strokes. This condition substantially impaired her cognitive ability but she was not in a coma or vegetative state. She was conscious, and capable of responding to simple questions or requests sometimes by squeezing the questioner's hand and sometimes verbally. She was also able to respond to noxious stimuli, such as a needle prick, and in fact was sensitive to "even minimal discomfort", although she was not experiencing pain in her present condition. When asked how she felt she usually responded "fine", "all right" or "ok". The treating physician also testified that her mental awareness had improved at the hospital and that she might become more alert in the future. In fact during the latest examination conducted that morning, in response to the doctor's request she had attempted to sit up and had been able to roll over on her side so that he could examine her lungs. However, Dr. Sivak stated that she is unable to comprehend complex questions, such as those dealing with her medical treatment, and doubted that she would ever regain significant mental capacity because the brain damage was substantial and irreparable.

The doctor stated that Mrs. O'Connor was presently receiving nourishment exclusively through intravenous feeding. However, this procedure was inadequate for long-term use because it does not provide sufficient nutrients and the veins tend to deteriorate. He testified that intravenous feeding is used as a temporary measure which generally must be discontinued within several weeks. He noted that these difficulties could be overcome with a gastric tube connected to the patient's digestive tract through her nose or abdomen. This procedure would provide adequate nutrients and...

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