Delio on Behalf of Delio v. Westchester County Medical Center

• Citation: 510 N.Y.S.2d 415,134 Misc.2d 206
• Parties: In the Matter of the Claim of Julianne DELIO, on Behalf of Daniel DELIO, Petitioner, v. WESTCHESTER COUNTY MEDICAL CENTER, Carl A. Vergari, District Attorney for the County of Westchester, Respondents.
• Decision Date: 05 December 1986
• Court: United States State Supreme Court (New York)

Page 415

510 N.Y.S.2d 415

134 Misc.2d 206

In the Matter of the Claim of Julianne DELIO, on Behalf of

Daniel DELIO, Petitioner, v. WESTCHESTER COUNTY MEDICAL CENTER, Carl A. Vergari, District

Attorney for the County of Westchester, Respondents.

Supreme Court, Westchester County.

Dec. 5, 1986.

Kramer, Dillof, Tessel, Duffy & Moore, New York City, for petitioner.

Henry J. Logan, Westchester Co. Atty., White Plains, for respondents.

James D. Hopkins, Armonk, Guardian ad Litem.

ANTHONY J. CERRATO, Justice.

"Vex not his ghost, O, let his pass! He hates him That would upon the rack of this tough world Stretch him out longer." ¹

The issue before this Court is literally one involving life and death. Whether characterized as "a right to die with dignity" or "euthanasia" or "mercy killing", more and more Courts are being called upon to render decisions made necessary because of modern medicine's ability to postpone the dying process. In re Quinlan, 70 N.J. 10, 355 A.2d 647; Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64; In re Conroy, 98 N.J. 321, 486 A.2d 1209; Matter of Jobes, 210 N.J.Super. 543, 510 A.2d 133; Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626.

The Medical Society of the State of New York stated, in a brief to the Court of Appeals in the Storar case, that "the law must take cognizance of the present ability to prolong biological existence in cases of terminal illness, as well as in cases of persons who are comatose or even in a vegetative state, and of the traditional inhibitions against releasing and relieving those whose further survival promises only a 'life' of unending torment, incapacity and, in effect, dehumanization." However, as Judge Hugh Jones noted in his dissenting opinion in Storar, the withdrawal of extraordinary life support medical procedures is irreversible and "may be thought by some to trespass on, the domain of Providence." "Few areas of judicial activity" he went on to say "present such awesome questions or demand greater judicial wisdom and restraint." (See Storar, p. 384-5, 438 N.Y.S.2d 266, 420 N.E.2d 64)

BACKGROUND

Daniel Delio, age 33, once a fine speciman of a man, is now, according to Dr. Robert Strobos, Director of the Department of Neurosurgery at the Medical Center, in a state of chronic vegetation with neocortical death--and no hope for improvement. ² This vegetative condition followed cardiac arrest which occurred during a surgical procedure for the repair of an anorectal fistula. A malpractice action has been commenced against St. Agnes Hospital and physicians concerned with that operation. Following the ill-fated operation, Mr. Delio was transferred to the Westchester County Medical Center and has been there since. While there is no respirator attached to Mr. Delio, he does receive nutrition and hydration through a tube connected directly to his stomach. He could live indefinitely in such state as long as nutrition and hydration via the feeding tube were maintained. This opinion by Dr. Strobos was corroborated by Dr. Sidney Carter and Dr. Paul Rosch, who were retained by the Court appointed Guardian ad Litem, James D. Hopkins, esteemed lawyer and former Judge. Julianne Delio, the wife of Daniel Delio, supported by Mr. Delio's mother, seeks an order authorizing her to direct Westchester Medical Center, or some institution willing to comply with her instructions, to remove the feeding tube, stop all feeding and nutrition, and stop treatment of all type for Daniel Delio. The Office of the District Attorney of Westchester County was served with the application but interposed no opposition to the relief sought.

At a hearing, Julianne Delio, as well as other relatives and friends all testified that Daniel Delio was a person, who, occasionally in conversation, remarked that he never would want his life prolonged by artificial means if he were in a chronic vegetative state with no hope of recovery. Many of these conversations occurred when the Karen Ann Quinlan case was in the news. Again he made these remarks when his father had a stroke. This testimony was most compelling and satisfies in the mind of this Court "the clear and convincing standard" established by the Court of Appeals in cases such as this. The types and number of these conversations, the occasions when they were said, and to whom, all point to a very physical man who, on some occasions, contemplated death, and in particular, dying with dignity.

The question before this Court now is whether the law in New York will permit the termination of care, and eventual death, for Daniel Delio in accordance with his previously announced wishes.

THE LANDMARK CASE OF STORAR

The Court of Appeals in Storar considered two separate applications brought on behalf of two terminally ill patients. Matter of Eichner (Fox), on appeal from 73 A.D.2d 431, 426 N.Y.S.2d 517, involved Brother Fox, an 83 year old member of a Roman Catholic religious order, who was being maintained by a respirator after he suffered cardiac arrest while undergoing an operation to repair a hernia. Brother Fox sustained substantial brain damage and was characterized as being in a vegetative state. Father Eichner, with the support of the relatives of Brother Fox, sought under Article 78 of the Mental Hygiene Law to be appointed Committee of the person In the other case (Matter of Storar, on appeal from 78 A.D.2d 1013, 434 N.Y.S.2d 46), the Court of Appeals reversed the lower court's denial of an application for permission to administer medically necessary blood transfusions that would have prolonged the patient's life. That application was brought by the Director of a hospital on behalf of John Storar, a severely retarded inmate, afflicted with terminal cancer of the bladder. Storar's mother refused to consent to the transfusions because they would only prolong his discomfort, and would not have been desired by him if he were competent to speak. The Court of Appeals noted, 52 N.Y.2d at p. 380, 438 N.Y.S.2d 266, 420 N.E.2d 64, that since Storar "was always totally incapable of understanding or making a reasoned decision about medical treatment ... it is unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent." The Court went on to say that mentally John Storar was an infant and accordingly, his rights are those of an infant. The Court then noted that while "(a) parent or guardian has a right to consent to medical treatment on behalf of an infant (Public Health Law, Sec. 2504, subd. 2) ... [such] parent ... may not deprive a child of lifesaving treatment, however well intentioned...."

and property of Brother Fox with authority to direct the termination of what that Court later described as "extraordinary medical care" (i.e., the respirator). The trial court upheld Father Eichner's request for an order to terminate, noting that there existed (1) at common law a right of self-determination with respect to treatment to be applied to one's body and (2) clear and convincing evidence that Brother Fox, prior to the operation had expressed his wishes not to have extraordinary means, such as respirator ever used to prolong his life.

Clearly, what can be gleaned from the Eichner portion of the Storar decision is that there is authority in New York for permitting, on proper application, the withdrawal of a respirator, but only where there is clear and convincing (1) medical proof of irreversible brain damage without hope of restoration or improvement, and (2) evidence of the patient's wishes, together with agreement of the family. It should be noted, however, that even the Court of Appeals emphasized, on page 370, 438 N.Y.S.2d 266, 420 N.E.2d 64, of its decision, "that any guidance we may provide for future cases is necessarily limited." It was noted that "(u)nlike the Legislature, the courts are neither equipped, nor empowered, to prescribe substantive or procedural rules for all, most, or even the most common contingencies."

STORAR'S APPLICABILITY TO INSTANT APPLICATION

A. SHOULD THERE BE A DIFFERENT RESULT BECAUSE BROTHER FOX WAS ON A RESPIRATOR AND THE INSTANT CASE INVOLVES A FEEDING TUBE?

To be sure there is a factual difference between the use of a respirator and the surgical attachment to Daniel Delio's abdomen of a tube for feeding purposes. The furnishing of food and drink to the ill is traditional and symbolical of the duty commonly conceived to be due to a patient, whether or not terminally ill. It is more like the blood transfusions in the Storar case which the Court of Appeals required be given to John Storar over his mother's objection. A respirator, on the other hand, is a far more complex mechanism than a feeding tube and requires constant monitoring. Of further note is the fact that the discontinuance of a respirator generally results in death in a short time, whereas removal of nourishment may well take several days or perhaps more than a week. The Guardian ad Litem points out, however, that "(b)oth ... are intervening devices administered to a patient, affording life support which the natural processes of the patient cannot furnish and without which the patient would die within a fairly defined time." See also, Matter of Conroy, 98 N.J. 321, 486 A.2d 1209, for discussion A recent case in Massachusetts, Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626, involved a 48-year old patient in a vegetative state who was being supplied nourishment through a gastrostomy tube. The Supreme Judicial Court held that the Commonwealth of Massachusetts' interest in protecting life must yield to the patient's substituted judgment, where the procedure of maintaining life was intrusive, and the patient, though not terminally ill, would never recover consciousness, having suffered irreversible damage to the upper brain.

on this distinction. Medical testimony at the Delio and Fox hearings clearly indicated that in neither case...