Eichner v. Dillon

• Decision Date: 27 March 1980
• Citation: 426 N.Y.S.2d 517,73 A.D.2d 431
• Parties: In the Matter of Father Philip K. EICHNER, S.M., on behalf of Brother Joseph Charles Fox, Respondent, v. Denis DILLON, District Attorney, Nassau County, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 517

426 N.Y.S.2d 517

73 A.D.2d 431

In the Matter of Father Philip K. EICHNER, S.M., on behalf

of Brother Joseph Charles Fox, Respondent, v. Denis DILLON, District Attorney, Nassau County, Appellant.

Supreme Court, Appellate Division, Second Department.

March 27, 1980.

Denis Dillon, Dist. Atty., Mineola (William C. Donnino, Anthony J. Girese and Judith R. Sternberg, Mineola, of counsel), appellant pro se.

Levine & Grossman, Mineola (William Levine, Mineola, of counsel), for respondent.

Mulholland, Minion, Roe & Clifford, Garden City (Robert C. Minion and John F. Mulholland, Garden City, of counsel), for guardian ad litem.

Hahn, Hand & Ford, Williston Park (Thomas J. Ford, Williston Park, David J. Fleming, New York City, Edward J. Walsh, Jr., Mineola, Raymond Fleck, Jr., Garden City, and Donald J. Steller, South Farmingdale, of counsel), for The Catholic Lawyers Guild of The Diocese of Rockville Centre, amicus curiae.

A. Lawrence Washburn, Jr., New York City, for Human Life Amendment, Inc., amicus curiae.

Thomas J. Dillon, Manhasset, for New York State Right to Life Committee, Inc., amicus curiae.

Before, MOLLEN, P. J., and LAZER, MANGANO, MARGETT and O'CONNOR, JJ.

MOLLEN, Presiding Justice.

This appeal concerns the right of a terminally ill patient in a comatose and essentially vegetative state to have extraordinary life-sustaining measures discontinued, and thereby to permit the process of death to run its natural course. The case raises issues which involve not only the life of the patient, but the interest of the State in maintaining that life. The issues are not difficult to frame, but their resolution will have a profound and far-reaching impact in a world where advances in medical technology sometimes blur the distinction between life and death. Ultimately, the question is whether the judicial system has the power to authorize termination of life-preserving measures and thereby, presumably, of life itself.

I

At the time this proceeding was commenced, Brother Joseph Charles Fox, an 83-year-old member of the Roman Catholic Order of the Society of Mary (S.M.), lay terminally ill in Nassau Hospital in a state which was described as a permanent or chronic vegetative coma. He had been in that state since October 2, 1979, when he suffered a cardiac arrest during surgery, with resulting severe and irreversible brain damage. The petitioner, Rev. Philip K. Eichner, S.M., thereafter instituted a proceeding pursuant to article 78 of the Mental Hygiene Law, inter alia, to have Brother Fox declared incompetent, and to obtain judicial approval for the withdrawal of the respirator which assisted his breathing and was believed to be solely responsible for keeping him alive.

An order approving the withdrawal of the respirator was issued by Special Term, and the District Attorney, who has opposed the petition throughout, appealed to this court. On January 24, 1980, however, shortly after the argument of this appeal, Brother Fox died of congestive heart failure despite the assistance of the respirator.

In assessing our obligations at this point, we recognize that, because the profound and difficult issues which underlie this proceeding transcend the tragedy which befell Brother Fox, they have not perished with him. We are therefore unwilling to rely on the fact of his death to avoid the task and indeed the responsibility of defining the role of the judicial system in circumstances such as those originally presented to us. It is important at the outset to address ourselves to the issue of jurisdiction and to state our conclusion that Brother Fox's death neither renders the case moot nor ousts this court of jurisdiction to decide it.

Since the controversy here is one likely to recur and may in the future again evade review, the issues presented are plainly not moot (see United States v. New York Tel. Co., 434 U.S. 159, 165, n.6, 98 S.Ct. 364, 368, n.6, 54 L.Ed.2d 376, quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 489, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310; see, also, Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147; East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y.2d 129, 135, 272 N.Y.S.2d 341, 346, 219 N.E.2d 172, 175). Moreover, regarding the jurisdictional question, we note that although petitioner relied on article 78 of the Mental Hygiene Law as a procedural vehicle, this proceeding has no true predicate in statutory law. Rather, it constitutes an appeal for the exercise of the court's equity jurisdiction under circumstances which are unprecedented in this State. Therefore, we are not bound in this case by the same rules of survivability as are courts adjudicating a purely legal question (see, e. g., Armstrong v. Allen B. Du Mont Labs., D.C., 137 F.Supp. 659, 663; 1 Am.Jur.2d, Abatement, Survival and Revival, § 75, p. 105).

It is true that, ordinarily, where only the personal status of a party is involved, and death occurs, we would deem the matter abated (see 1 C.J.S. Abatement and Revival § 128b). However, the order at Special Term will likely be accorded significant precedential value should, as is almost certain to occur, the same important issues arise again. Accordingly, much more is involved here than the personal status of Brother Fox. In such circumstances, absent constitutional or statutory constraints, we do not hesitate to assert our inherent judicial power under the common law to continue our jurisdiction in order to meet the exigencies of the judicial problem before us. (Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694; see, also, 15A Am.Jur.2d, Common Law, § 16, p. 614; cf. Basso v. Miller, 40 N.Y.2d 233, 240, 386 N.Y.S.2d 564, 567, 352 N.E.2d 868, 871; People v. Hobson, 39 N.Y.2d 479, 489, 384 N.Y.S.2d 419, 425, 348 N.E.2d 894, 901.) The importance of these recurring questions, the fact that they invariably arise in a setting of urgency and immediacy, and the necessity for speedy and proper adjudication in future cases demand that this court continue to exercise its jurisdiction in this case, confront the issues, and conclude the matter on its merits.

We hold that Father Eichner, as Committee of the Incompetent, was entitled to the relief sought upon fulfillment of certain specified conditions and, to this extent, we concur with Mr. Justice MEADE's holding at Special Term. We proceed further, however, and specify for those cases which will arise in the future the structural legal framework for reaching similar termination-of-treatment decisions, since we agree with Justice MEADE that the decision in this case "could conceivably have serious and profound consequences for the future welfare of all the citizens of this State" (Matter of Eichner (Fox), Sup., 423 N.Y.S.2d 580 p. 582 (1979) (hereafter, Decision)). We turn first to a review of the facts.

II

From the age of 16, Brother Joseph Charles Fox had lived a devout religious life in the Catholic Church. In 1970 he retired to the religious community of the Order of the Society of Mary living on the premises of the Chaminade High School. He had a close relationship with the president of the school, Rev. Philip Eichner, S.M., whom he had known since 1953 when Brother Fox was a prefect of novices during Father Eichner's novitiate. At the time of his retirement, Brother Fox was in excellent health suffering only from an eye condition which limited his vision. He remained both mentally and physically active, taking on duties as the high school's pastor and message co-ordinator.

In late August or early September, 1979, Brother Fox, then 83 years old, was working in the garden as was his usual practice. Apparently, in moving some large tubs of flowers, he sustained an inguinal hernia. His physician recommended that he undergo an operation and corrective surgery was scheduled for October 2, 1979. Prior to the operation, Brother Fox was in good health and entered the hospital with all expectations of a successful recovery. The operation began and was proceeding in normal fashion when, near its conclusion, Brother Fox apparently suffered a cardiac arrest. Emergency procedures were applied in an attempt to revive him. Medication and heart massage were administered while an endotracheal tube was inserted between the tongue and teeth to permit air to flow into the lungs. These measures ultimately produced results in that Brother Fox's heart resumed beating. However, as a consequence of the interruption of the flow of oxygen caused by the cardiac arrest, Brother Fox suffered substantial brain damage. He was removed to the intensive care unit of the hospital and placed on a respirator, a mechanical breathing device used only for those who are extremely ill and in danger of dying. He slipped into a coma from which he was never to emerge and lost all comprehension of his surroundings. Moreover, with the passage of time, he showed little sign of ever regaining a state of sapience or consciousness.

When Father Eichner was informed of Brother Fox's dire condition, he arranged to have him examined by two neurosurgeons. Upon their negative prognosis, Father Eichner approached the hospital authorities and requested that Brother Fox be removed from the respirator. The authorities declined to comply with this request without a direction from the court and consequently Father Eichner, supported by Brother Fox's surviving relatives and members of the religious community, petitioned the court for relief pursuant to article 78 of the Mental Hygiene Law. ¹ Father Eichner asked to be appointed the Committee for Brother Fox and to be permitted to authorize discontinuance of the life-support system.

In his supporting affidavit, Father Eichner stated that Brother Fox had not regained consciousness since the hernia surgery on October 2, 1979 and that the 83-year-old man was being sustained by the use of "extraordinary life support systems" in Nassau Hospital. Father Eichner further stated his belief that Brothe...