New York City Health & Hospitals Corp. v. Sulsona

• Decision Date: 25 April 1975
• Citation: 81 Misc.2d 1002,76 A.L.R.3d 905,367 N.Y.S.2d 686
• Parties: , 76 A.L.R.3d 905 Application of the NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Petitioner, v. Daniel SULSONA, a patient located at Bronx Municipal Hospital Center, et al., Respondents.
• Court: New York Supreme Court

Page 686

367 N.Y.S.2d 686

81 Misc.2d 1002, 76 A.L.R.3d 905

Application of the NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Petitioner, v. Daniel SULSONA, a patient located at Bronx Municipal Hospital Center, et al., Respondents.

Supreme Court, Special Term, Bronx County, Part XII.

April 25, 1975.

George Kalkines, New York City, and Robert S. Asher, New York City, for petitioner; W. Bernard Richland, Corp. Counsel, New York City, for Dominic DiMaio by Leonard Bernikow, Kew Gardens, of counsel.

Louis J. Lefkowitz, Atty. Gen. by Eugene P. O'Brien, Asst. Atty. Gen., of counsel; Mario Merola, Dist. Atty., Bronx County, and Daniel J. Sullivan, Asst. Dist. Atty., for respondents.

MARY JOHNSON LOWE, Judge:

In this season of rebirth and reaffirmation of life, this court (Supreme Court, Criminal Branch, Part XII) is called upon to assume the ironic task of determining what is the legal definition of death, or more precisely, when death occurs.

Public Health Law, Article 43, generally known as the Uniform Anatomical Gifts Statute, is this State's affirmation of our public policy of encouraging anatomical gifts by a donor or a donor's next of kin of organs for transplanation so that others might live as a result of the charity of those who have died.

The New York City Health and Hospitals Corporation, petitioner herein, brings this action for a declaratory judgment to define legally the time of death as used in Sections 4301 and 4306 of the Public Health Law because of its alleged inability to effectuate the intent of Article 43 with the result that needless deaths of potential recipients have occurred.

Article 43 does not define 'death' or 'the time of death' and there presently exists a discrepancy between the common law criteria for determining death which are the easily observable absence of heartbeat and respiration (Black's Law Dictionary, 4 Ed.Rev.1968, p. 488) and the medically recognized concept of 'brain death' as defined by criteria formulated by the Harvard Medical School's Ad Hoc Committee In the common law era, prior to modern anatomical transplantation, this distinction would have been largely academic, even if it were then noted; but medical science has now advanced to the point of perfecting mechanical means to support circulatory and respiratory functions and is, in fact, capable of substituting artificial mechanisms for the natural ones.

to Examine the Definition of Brain Death (Report of the Ad Hoc Committee of the Harvard Medical School, JAMA 205:337--340, 1968; also see, Refinements in Criteria for the Determination of Death: An Appraisal, JAMA 221:48--53, 1972).

The case and controversy herein arises as a result of these scientific developments and because the common law definition of death is not in accordance with the uniformly accepted medical practice of today causing physicians seeking to implement the intent of the Uniform Anatomical Gifts Statute to employ the 200 year old definition of death rather than the generally accepted medical standard due to fear of potential criminal or civil liability.

This controversy arose dramatically on March 4, 1975, when Richard Smith, aged 27, was transferred from Lincoln Hospital and admitted to the Neurological Service at Bronx Municipal Hospital Center in a comatose condition, suffering from a gunshot wound to the left temporal area of the brain. The patient was found to be totally unresponsive with no spontaneous respiration or movement. The patient was placed on mechanical respiratory support systems to assist him during intensive treatment. Tests were conducted in accordance with generally accepted medical standards and it was determined that the patient was neurologically dead on March 5, 1975. The parents of the patient authorized the physicians to remove both kidneys and eyes for transplant purposes. That although this patient was a suitable donor and appropriate consents had been obtained from next-of-kin, the hospital did not proceed to effect removal of organs because of potential legal problems associated with the legal definition of death and further by policy of the Chief Medical Examiner prohibiting removal of organs from homicide victims. On March 6th the patient, in addition to neurological death, suffered cardiovascular failure and was pronounced dead. The organs were not removed, even after cardiovascular failure, because of the aforesaid prohibition and as a result two patients were then deprived of kidneys.

Two patients awaiting kidney transplants had been identified and were prepared to undergo transplant surgery at Montefiore Hospital and Medical Center. There were 23 such patients whose genetic and immunological tests were found to be compatible recipients of Mr. Smith's kidneys.

On March 5, 1975 at 9:47 P.M. patient Daniel Sulsona, aged 21 years, was admitted to the Neurological Service at Bronx Municipal On March 7th, at 6:40 A.M. patient Sulsona, in addition to neurological death, suffered cardiovascular failure and was pronounced dead. The physicians, on the advice of counsel, proceeded to remove the kidneys to patient Sulsona and thereafter successfully transplanted them into two recipients who were matched for genetic and immunological compatibility.

Hospital Center in a comatose condition suffering from a gunshot would to the right parietal region of the brain. The patient was totally unresponsive, with no spontaneous respiration or movements. The patient was placed on mechanical respiratory support systems to assist him during intensive treatment. Tests were conducted in accordance with generally accepted medical standards, and it was determined that the patient was neurologically dead on March 6, 1975. Mrs. Maria Sulsona, mother of the patient, authorized the removal of the patient's kidneys for transplant purposes. Given the almost identical fact pattern in the Sulsona case with that of patient Smith, petitioner commenced the instant action by order to show cause returnable on Friday, March 7, 1975 at 2 P.M. to permit the petitioner to declare patient Sulsona dead and to authorize the removal of the kidneys for transplantation.

The Smith and Sulsona cases typify circumstances which occur virtually on a daily basis in the municipal hospitals and which, therefore, lend even greater urgency for judicial resolution of these issues.

In support of the petition herein, the Court has heard District Attorney Mario Merola, District Attorney of Bronx County; Dr. Jack Fein, Assistant Professor, Neurological Surgery at the Albert Einstein College of Medicine; Dr. Julius Korein, Professor of Neurology at New York University Medical Center and Chief of Electroencephalography at Bellevue Medical Center; Dr. Samuel L. Kountz, Professor and Chairman of the Department of Surgery, State University of New York, Downstate Medical Center in Brooklyn and the recognized authority in the field of transplant surgery; Dr. Frank J. Veith, Professor of Surgery at Albert Einstein College of Medicine, Co-Director of the Transplant Unit at Montefiore Hospital and Chairman of the Transplant Advisory Committee for the New York-New Jersey Regional Transplant Program and Dr. Louis N. Baker, Director of the New York-New Jersey Regional Transplant Program.

Each of these doctors was accepted by all parties as the medically recognized experts in their fields and there was unanimous agreement among the doctors that the kidneys obtained from donors whose death was diagnosed on the common-law criteria of cardiac and respiratory failure have an 88% Incidence of post-operative renal failure; while those kidneys resulting from 'brain death' criteria are indistinguishab from kidneys obtained from living donors and therefore have the Dr. Kountz testified that in the New York-New Jersey region there are about 800 to 1000 patients per year who suffer renal failure and that the number of patients in this region in end-stage renal disease approximate a public health crisis.

optimal chance of successful transplantation, or between 10% And 20% Incidence of post-operative renal failure.

Dr. Kountz further testified that the absence of a clear, legal definition of death has a chilling effect upon transplant surgery in that it causes undue emotional distress on the part of the next of kin who wish to donate organs of the deceased. Hospital administrators do not know how to proceed in implementing the Uniform Anatomical Gifts Act and physicians are reluctant to expose themselves to possible criminal or civil liability.

Assistant Attorney General David H. Berman, in argument stated it was the duty of the Court to construe the statute as constitutional, if there was any reasonable interpretation of the statutory term 'death.' He further stated that the courts have traditionally construed legislative intent.

Mr. Bernikow, representing Medical Examiner DiMaio stated that the Medical Examiner takes no position in that part of this proceeding dealing with definition of death but was solely concerned with the post-mortem duties legally imposed upon his office.

After hearing all of the evidence and arguments of all parties herein, and due deliberation being had thereon, it is the finding of this Court:

That because of the urgent nature...