Lydia E. Hall Hosp., Application of

• Decision Date: 22 October 1982
• Parties: In the Matter of the Application of LYDIA E. HALL HOSPITAL, Petitioner, for an order authorizing medical treatment of Peter Cinque, Respondent, Mark Cinque, Mary Biondo, Joseph Cinque, Additional Respondents.
• Court: New York Supreme Court

Page 706

455 N.Y.S.2d 706

116 Misc.2d 477

In the Matter of the Application of LYDIA E. HALL HOSPITAL, Petitioner,

for an order authorizing medical treatment of Peter Cinque, Respondent,

Mark Cinque, Mary Biondo, Joseph Cinque, Additional Respondents.

Supreme Court, Special Term,

Nassau County, Part II.

Oct. 22, 1982.

Morris Ehrlich, P.C., New York City, for petitioner Lydia E. Hall hosp.

Meiselman, Boland, Reilly & Pittoni, Mineola, for respondents and the Cinque Family; by M. John Pittoni, Mineola, of counsel.

Thomas W. Stanisci, Mineola, guardian ad litem for respondent Peter Cinque.

MEMORANDUM

ARTHUR D. SPATT, Justice.

This Court must decide whether, under the facts here presented and the law of our state, life sustaining treatment for a 41 year old man can be terminated.

Background

By order to show cause signed October 15, 1982, at 5:30 p.m., petitioner Lydia E. Hall Hospital (herein referred to as the "Hospital") sought an order of this Court authorizing the Hospital to continue hemo dialysis treatment of their patient Peter Cinque. The order to show cause was directed to Mark Cinque, Mary Biondo and Joseph Cinque as next of kin of patient Peter Cinque.

The petition annexed to the order to show cause recites that Peter Cinque is suffering from end stage renal disease, diabetes mellitus, blindness and bilateral amputations due to gangrene "and may unless hemo dialysis is administered to him in connection with the treatment for said disease suffer loss of life."

The Court conducted an informal hearing in chambers at the time of the issuance of the order to show cause. After hearing Dr. Norma Wenger and Mark Cinque, the Court orally directed the Hospital to continue the dialysis treatment, and set the matter down for a plenary hearing at the Hospital on Monday, October 18, 1982, at 10:00 a.m. In addition, Dr. Wenger expressed no objection to the discharge of the patient from the Hospital.

Later that same evening, having received additional information from the Hospital, and upon further reflection, the Court telephonically directed the Hospital not to discharge the patient and issued a short form order directing the Hospital to continue routine dialysis treatment; not to discharge or release the patient; and for all parties to appear and take part in the continued hearing at the Hospital on Monday, October 18, 1982, at 10:00 a.m.

Prior to and at the hearing on October 18, 1982, the Court was advised that Peter Cinque, who had been previously alert, oriented and competent, had developed respiratory arrest and was in a coma. After having personally observed the patient's comatose condition, and after hearing competent medical proof confirming that fact, sua sponte and on the application of the patient's next of kin, the Court appointed Thomas W. Stanisci, Esq. as guardian ad litem to protect the rights and interests of Peter Cinque. Counselor Stanisci came to the Hospital and thereafter participated in the October 18th hearing.

In order to permit the guardian to review the records and the evidence, and to afford the Court another opportunity to attempt to communicate directly with Peter Cinque, the hearings were recessed to October 21, 1982, at which time they were concluded. At the October 21 hearing, the guardian and the Cinque family orally applied for an order removing all other life preserving extraordinary means of treatment.

Findings of Fact

Peter Cinque, an unmarried man 41 years of age, has no dependents. He is, however, blessed with a loving family of a mother, six brothers and a sister. Peter was afflicted with juvenile diabetes mellitus at age 5. Diabetes mellitus is a metabolic disorder in which the ability to oxidize carbohydrates is more or less lost, usually resulting from faulty pancreatic activity with consequent disturbance of the normal insulin mechanism. This condition produces hyperglycemia (abnormal increase in the glucose level in the blood) and may result in acidosis and coma. The ravages of this insidious disease may affect other parts and functions of the body and may result in chronic complications, including neuropathy (disorder of the nervous system), retinopathy (degenerative disease of the retina), nephropathy (disease of the kidneys), and generalized changes in large and small blood vessels. (See Stedman's Medical Dictionary 4th Edition at p. 385; Dorland's Illustrated Medical Dictionary, 25th Ed. at p. 434.)

Although life dealt him this cruel blow, Peter Cinque persevered and attained an education sufficient to become a teacher and to lead a useful life until the spreading residuals of the diabetes took their toll. He apparently continued his studies until 1979. By reason of the retinopathy, he became, within the last few years, totally blind.

In addition, both kidneys were affected and are inoperative. He is in end stage renal disease, and, since 1979, has required hemo dialysis in order to live. Dialysis is a cleansing procedure of the blood accomplished by way of attachment to a machine. Peter must have dialysis three times a week, each procedure taking four hours to accomplish.

As a result of severe peripheral neuropathy and serious peripheral vascular disease, he has been confined to a wheelchair and recently, as a result of these diseases which emanated from his basic diabetic condition, Peter sustained bilateral amputations of both lower extremities; his left leg was amputated below the knee; his right leg was amputated above the knee. The surgical wound involving the left stump is not healing well; and if this condition persists, he will require an above-the-knee amputation of the left leg.

Other medical problems inflicted upon this gravely ill man are gastrointestinal bleeding, a bleeding ulcer and calcification of the aorta.

These medical conditions, including the recent bilateral amputations, were a competent producing cause of great pain and suffering to Peter Cinque. He was blind, totally incapacitated, crippled and wracked with pain which necessitated analgesic medication including the use of demerol.

Despite these grievous physical ailments, with few deviations, Peter remained mentally alert and competent. Although on three or four occasions he had semi-comatose episodes, they were for short periods of time, and his mental condition returned to normal. These episodes were caused by chemical imbalance on a metabolic basis secondary to dialysis, and did not result in brain damage. His mental condition was oriented, adjusted and normal to October 17, 1982.

On Sunday, October 17, 1982, at approximately 5:00 a.m., Peter Cinque sustained respiratory arrest and stopped breathing. A "code" alarm was sounded and his life was saved. However, he has, since that time, been in a coma. The neurological diagnosis by Dr. Morris Dickman is severe anoxic encephalopathy, meaning a lack of oxygen in the brain. So that, superimposed on Peter's other catastrophic illnesses, residuals and disabilities, he has sustained irreversible diffuse damage to both hemispheres of the brain at the cortical and subcortical levels.

According to Dr. Dickman, he is in a coma and could improve only to a vegetative state and will be totally unable to make a rational decision. Even if there is improvement, says Dr. Dickman, he will never have the ability to speak or think. The time for Peter Cinque to himself make a decision as to his future medical treatment has passed. The Court will have to consider whether Peter made a decision not to be further treated by dialysis based on evidence of his past actions before he was rendered incompetent.

The Court attempted on two separate occasions, on Monday, October 18th and Thursday, October 21st, to personally talk with Peter Cinque in the intensive care unit of the Hospital, without success. The Court found him to be in a coma and unable to communicate.

Thus, a man clearly able to make an informed and rational decision right up to the early morning hours of October 17th, is now comatose and incompetent.

Dr. Norma Lee Wenger, an internist specializing in nephrology, has treated Peter Cinque since 1979. She testified that his kidneys were destroyed, do not function and cannot remove toxic waste. He requires maintenance hemo dialysis three times a week, for a total of twelve hours, in order to survive. Without dialysis Peter Cinque will be dead within one week or sooner.

Dr. Wenger stated that Peter's condition of blindness, end stage renal failure, peripheral neuropathy and brain damage are irreversible and incurable. Although she stated, at one point in her testimony, that he was not terminally ill, she said that his life expectancy on dialysis was six months, and even less than six months in view of the recent brain damage. In her words with continuing dialysis treatment, he will be terminal in six months or less. Dr. Wenger stated that the termination of dialysis would not be a painful experience.

According to the Cinque family, Peter Cinque, while competent, did clearly and unequivocally make an informed decision to refuse further dialysis treatment. They offer substantial evidence in support of this significant contention.

Vincent Cinque, Anthony Cinque and A.P. Cinque, brothers, testified as to Peter's constant pain and despair, and his decision not to continue to live in this hopeless manner. Nicholas J. Cinque, another brother, stated that Peter told him in early October that he did not want to be kept alive artificially, because of the pain; and that, on October 14, 1982, Peter said, "I want this artificial means of keeping me alive ended."

Mary A. Biondo, his only sister, testified that in February, 1982, Peter announced to the family that he wished to go off dialysis. On October 11, 1982, Peter's birthday, they discussed his decision to discontinue his dialysis, and Mary assured him that she and all the family will support him. On Friday, October 15, Mary put the question to Peter directly. "I am aware of your...