75 N.Y.2d 218, Fosmire v. Nicoleau

Citation75 N.Y.2d 218, 551 N.Y.S.2d 876
Party NameFosmire v. Nicoleau
Case DateJanuary 18, 1990
CourtNew York Court of Appeals

Page 218

75 N.Y.2d 218

551 N.Y.S.2d 876

In the Matter of Francis J. FOSMIRE, as Executive Vice-President of Brookhaven Memorial Hospital Medical Center, Appellant,


Denise J. NICOLEAU et al., Respondents.

New York Court of Appeals

Jan. 18, 1990.

Page 219

Norton L. Travis, Great Neck, Leonard M. Rosenberg, Debra A. Silverman and Susan F. Scharf, New York City, for appellant.

Donald T. Ridley, Brooklyn, for respondents.

Page 221


WACHTLER, Chief Judge.

In this case, an adult Jehovah's Witness refused to consent to blood transfusions prior to delivery of her baby and persisted [551 N.Y.S.2d 877] in the refusal after losing a substantial amount of blood following the Cesarean birth of the child. Based on her doctor's affidavit that the transfusions were necessary to save her life, the Supreme Court in Suffolk County signed an order authorizing the hospital to give the transfusions over her personal objections. On application by the patient and her husband, the Appellate Division, 144 A.D.2d 8, 536 N.Y.S.2d 492 vacated the order. The hospital has now appealed to our court. 1

The hospital recognizes that in this State a competent adult has the right to determine the course of his or her own medical treatment, and may decline even lifesaving measures, in the absence of a superior State interest. The hospital urges though that this is the exceptional case because it believes there are certain State interests present here which should prevail over the patient's personal choice. The argument essentially is that the State has an overriding interest in preserving the life of a young, otherwise healthy person facing a risk of death which can be completely eliminated by a simple blood transfusion, and an even more substantial interest in protecting a minor child from the loss of the mother.

To place the issue in focus it is important to emphasize what this case does not involve.

First, the patient is an adult and not a child whose parents have refused to consent to necessary blood transfusions or other lifesaving measures. A court of this State clearly has the power and the obligation to order treatment essential to a child despite the parents' conscientious objections (Matter of Storar, 52 N.Y.2d 363, 380-381, 438 N.Y.S.2d 266, 420 N.E.2d 64). Long ago the United States Supreme Court observed: "Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children" ( Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645).

Page 222

Second, we are not dealing with an incompetent patient and thus are not called upon to decide whether the patient, when competent, made and expressed a firm resolve to forego the right to lifesaving treatment under particular circumstances. Here there is no question that the patient is a competent adult who made a conscious choice, for personal reasons, to avoid blood transfusions under all circumstances and that she never wavered in that commitment. The only question is whether the hospital and the court were bound to honor her choice so clearly expressed.


The patient, Denise Nicoleau, is a practical nurse and her husband is a radiologist. Both are Jehovah's Witnesses who believe that the biblical injunction to "abstain * * * from blood" (Acts 15:28-29) prohibits blood transfusions. When the patient became pregnant she consulted a physician practicing at Brookhaven Memorial Medical Center to provide prenatal care and deliver the child. The patient says that she informed the doctor that she was a Jehovah's Witness and would not consent to a blood transfusion in connection with the delivery because that would violate her religious beliefs. On the form submitted before admission to the hospital she consented generally to medical procedures that may be necessary but specifically excluded "the administration of blood, pooled plasma or other derivatives." Late in the pregnancy it was determined that the baby would have to be delivered by Cesarean section.

On December 29, 1988, the patient went into labor prematurely and was admitted to the hospital. That evening a Cesarean section was performed and a healthy baby boy was delivered. Following the delivery she began to hemorrhage and at approximately [551 N.Y.S.2d 878] midnight it was determined that further surgery was necessary. She remained in surgery until about 4:00 A.M. Throughout the evening and early morning hours the patient had lost a substantial amount of blood and her doctor informed her that in his opinion she would die unless she had a transfusion. However, both she and her husband refused to consent to a transfusion on religious grounds. At the time she was 36 years old and, except for the loss of blood, apparently in good health.

When the doctor informed hospital officials of this situation they decided to seek a court order authorizing the transfusions.

Page 223

At about 9:00 A.M. that morning an attorney representing the hospital made the application to a Supreme Court Justice in Suffolk County. In support of the application the attending physician submitted an affidavit noting that the patient's hemoglobin count had dropped to 4 which is far below the normal range of 12-14. The doctor stated that in his opinion "unless her medical condition improves (which I consider unlikely), she must have a blood transfusion in order to preserve her life."

At about noon that day the court signed an ex parte order authorizing the hospital to administer "necessary blood transfusions" to the patient. The patient and her family received no advance notice of the application and no notice of the fact that the order had been signed until late in the afternoon. At about 6:00 P.M. that evening she received the first transfusion. Two days later the hospital gave her a second transfusion.

On January 2, the patient and her husband applied to the Appellate Division to vacate the order. In her supporting papers she indicated that her refusal to consent to blood transfusions was motivated not only by her religious beliefs but also by her concern for the dangers associated with transfusions, particularly the risk of contracting a communicable disease such as AIDS. She asserted that she had no desire to die and would accept medical treatments not involving transfusions, which she claimed were also effective in combatting blood loss. She argued that compelling her to submit to blood transfusions under these circumstances violated her common-law, statutory and constitutional right to make her own medical decisions as well as her constitutional right to practice her religion free of government interference. She urged that there were no identifiable State interests sufficient to overcome these rights.

The Appellate Division vacated the order by a divided court. The majority held that the Supreme Court erred in ordering the transfusions without giving the patient or her family notice and an opportunity to be heard before the order was signed and compounded the error by not providing that they be notified that the order had been signed so that they could seek prompt review before the transfusions were given. On the merits the majority held that the State had an interest in preserving her life but that there was no showing that this could only be accomplished by a blood transfusion since there was no proof in the record that nonblood medical treatments

Page 224

would not have been successful. It also held that the State had an interest in protecting the child from the loss of parental support and care but that this interest would be satisfied by the father and the child's extended family. The concurring Justice urged that the State had a compelling interest in preserving the patient's life for the benefit of her child but agreed that the order should be vacated because it was issued without notice or an opportunity to be heard.

On this appeal the hospital argues that a patient's right to decline lifesaving treatment should be limited to cases where the patient has a terminal or degenerative disease. When the patient is otherwise healthy the State has a stronger interest in preserving life, which should be held to outweigh the patient's choice. The State's interest is even stronger, the hospital contends, when the patient is a parent, and that the Appellate Division erred in adopting a "one-parent rule." The argument here is that it is always in the child's best interest to have two parents and that the State will intervene to protect the child's welfare. Finally it is urged that the Appellate [551 N.Y.S.2d 879] Division also erred in requiring notice and a hearing whenever a hospital applies for an order in these "emergency" cases because the delay may cause an additional risk to the patient's life, particularly if the court is required to determine the child's best interests under a "one-parent rule" which may require an extensive inquiry similar to a custody hearing.


Initially, we note our agreement with the Appellate Division's conclusion that in this case the Supreme Court should not have signed the order ex parte, without giving the patient or her husband notice and an opportunity to be heard. Applications for court-ordered medical treatment affect important rights of the patients and should generally comply with due process requirements of notice and the right to be heard before the order is signed (Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337). We recognize that due process is a flexible concept and there may be cases in which the patient's condition is so grave that there is no opportunity for prior notice and a hearing. Even then it would seem that the court should...

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