Harvey U, Matter of

• Decision Date: 28 April 1986
• Citation: 501 N.Y.S.2d 920,116 A.D.2d 351
• Parties: In the Matter of HARVEY "U". Veteran's Administration Medical Center, Respondent; Harvey "U", Appellant.
• Court: New York Supreme Court — Appellate Division

Page 920

501 N.Y.S.2d 920

116 A.D.2d 351

In the Matter of HARVEY "U" Veteran's Administration Medical Center, Respondent Harvey "U", Appellant.

Supreme Court, Appellate Division Third Department.

April 28, 1986.

James T. Donnelly (David M. Le Vine, of counsel), Mental Health Information Service, Albany, for appellant.

Gold & Symansky (Barry A. Gold, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

LEVINE, Justice.

Respondent is a 36-year-old male who was transferred to petitioner hospital on or about January 9, 1986, suffering from a gangrenous condition of both feet as the result of third degree frostbite. For about one month prior to seeking medical treatment, he had been living in a station wagon in northern Saratoga County after his eviction from his home. Respondent was receiving Social Security benefits based upon a mental disability and has a history of psychiatric hospitalizations. Shortly after his admission, petitioner's staff physicians recommended amputation of portions of both feet. When respondent refused to consent to these procedures and nearest relatives declined to become involved in the decision making on the issue, petitioner brought this proceeding seeking judicial authorization to perform the amputations based upon respondent's mental incompetency.

Respondent's present physical condition was described at the hearing by petitioner's chief of surgery. Substantial portions of respondent's feet are dead, gangrenous and mummified. There is localized infection. The level of demarcation between normal and affected tissue has widened and the normal tissue in these areas has become red and swollen. There is no possibility that the dead tissue will revitalize or heal. Without surgical amputation, the dead tissue will ultimately fall off, leaving exposed bone which in turn will eventually crack and fall away. It is possible that the resultant wounds will heal, but in all likelihood there will be a nonhealing stump at least on the right foot. The right foot will not be weight bearing and will continue to be the source of severe pain. Although no lifethreatening infection presently exists, the failure to amputate substantially enhances the risk of generalized infection, the development of "wet" gangrene, requiring more serious amputations and may possibly lead to death. The risks of surgery would be small. The operation would leave respondent with the use of his left foot, but require a prosthetic device for the right leg to enable him to walk. The surgery would accelerate the rehabilitation process for maximum ambulatory functioning.

The evidence of respondent's mental condition consisted of the testimony of a treating staff psychiatrist and of a court-appointed psychiatrist who examined respondent at the time of the hearing, and petitioner's records of respondent's hospitalization. Both psychiatrists diagnosed respondent as a paranoid schizophrenic, manifested generally in his belief that the treating physicians are trying to hurt him, a loosening of thought association and idiosyncratic thinking. He was intermittently verbally abusive and threatening to hospital staff, interfered with the application of his dressings and refused intravenous injections of antibiotics and the taking of blood samples. For a period of time he refused to take psychotropic drug medication, during which he suffered hallucinations of being attacked by scissors and heard the voices of his deceased parents through the radio. Both psychiatrists opined that respondent lacked any realistic insight into the nature of his condition or capability of understanding the risks and benefits of surgery or the consequences of his refusal to accept treatment. Respondent testified on his own behalf. At the conclusion of the hearing, Supreme Court found that respondent was mentally incompetent to give or withhold consent to the recommended surgery and granted petitioner's application for authorization to perform the amputation. This appeal followed.

In our view, petitioner has met its burden of establishing by clear and convincing evidence that respondent was incompetent to give or refuse consent (see, Matter of Storar, 52 N.Y.2d 363, 379, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153; Matter of Harris v. Roberts, 91 A.D.2d 1141, 1142, 458 N.Y.S.2d 719); that is, respondent is incapable of making an informed, rational decision on the basis of the risks and benefits of the surgery (see, Public Health Law §§ 2504, 2805-d; Canterbury v. Spence, D.C.Cir., 464 F.2d 772, 780, cert. denied 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518) and comprehending the seriousness of his condition and the consequences of not having the procedure performed (Matter of Hanes v. Ambrose, 80 A.D.2d 963, 437 N.Y.S.2d 784; New York City Health & Hosps. Corp. v. Stein, 70 Misc.2d 944, 946, 335 N.Y.S.2d 461). The testimony of both psychiatric experts, as well as that of respondent himself, convincingly established that, although respondent knows his feet have been injured and understands what is entailed in an amputation, his psychotic fears and beliefs have resulted in a self-denial of the severity of his condition and the likely, and possibly even life-threatening, consequences of failing to undergo surgery. Despite the uncontested medical proof to the contrary, he is certain that his condition will get better rather than worse and that although his blackened skin may fall off, the feet underneath will be usable. His testimony exhibited a wholly irrational trust in the natural healing of his affliction and a belief that his hospitalization and treatment have only been for "experimental" purposes. Supreme Court also properly found that the benefits to be derived from surgery clearly outweighed any risks, despite the possible adverse effects on his mental...