Saunders v. State

• Decision Date: 16 July 1985
• Citation: 492 N.Y.S.2d 510,129 Misc.2d 45
• Parties: In the Matter of Selma L. SAUNDERS, Applicant, v. The STATE of New York, Respondent.
• Court: New York Supreme Court

Page 510

492 N.Y.S.2d 510

129 Misc.2d 45

In the Matter of Selma L. SAUNDERS, Applicant, v. The STATE of New York, Respondent.

Supreme Court, Special Term,

Nassau County, Part I.

July 16, 1985.

Russo & Tanenbaum, P.C., Albertson, for applicant.

Robert Abrams, Atty. Gen., Mineola, for respondent.

Fenella Rouse, Staff Atty., The Society for the Right to Die, New York City, amicus curiae.

BERNARD F. McCAFFREY, Justice.

This matter concerns a document entitled, "Instructions Relating to Medical Treatment and Death/Refusal of Further Care" (also known as "Living Will") of Selma L. Saunders who now asks the court, as a matter of first impression, to rule upon the proposed "Living Will" and interpret said Will and judicially implement her written desires and instructions.

Reduced to its simplest terms a "Living Will" is a document in which one states, while in good health, what measures he or she does not want used to extend one's life when one is dying.

The applicant, Selma L. Saunders, is 70 years of age and suffers from both emphysema and lung cancer, and is currently confined to her daughter's home in Oceanside, New York, where she has oxygen administered to her on an almost continual bases. Her condition is described as being progressive and without current known medical cure.

On or about April 24, 1984, while the applicant was residing in Philadelphia, Pennsylvania, she prepared and executed a "Living Will"; said document was prepared by her attorneys in Philadelphia. The document is annexed to the moving papers as an exhibit; it consists of a cover-page and three and one-half typewritten pages signed by the applicant and attested to by witnesses.

The applicant petitions the court to make a determination as to the validity and effectiveness of the document within the State of New York. She seeks this relief at this time in order that the document will be operative without the requirement of any further court determination, if certain events in paragraph "B" of the document occur. Paragraph "B" provides as follows:

"B. If, due to injury or illness, sudden or gradual, I become incompetent, and my condition becomes such that: (1) I am in irreversible coma, in the opinion of my treating physician; or (2) I have been continuously unconscious for a period of one (1) week, and in the opinion of my treating physician, I have suffered severe irreversible brain damage which will permanently render me incompetent; (or that even partial physical recovery would be accompanied by severe, irreversible brain damage rendering me incompetent); or (3) my condition is terminal and hopeless and death is imminent; then, as of that time, I withdraw my actual and implied consent to and substitute this REFUSAL of, all further treatment of me by artificial means and devices (such as the use of a respirator) and all further therapeutic or emergency case; and I direct that all further treatment of me or my condition by such artificial means and devices or the rendition of such further therapeutic or emergency care shall cease."

The document goes on further to state that the determination of the effective time of the "Refusal" in paragraph "B" of the document is a medical decision and empowers the treating physician to make the determination to honor said "Refusal" of further medical treatment, applying his own medical judgment. The document further absolves and releases any physician or hospital on account of honoring the "Refusal", and reaffirms said "Refusal" as hers and that any physician or hospital is acting in accordance with her own directions. Finally, the document reflects that the applicant is not claiming any so-called "right to die" or any right to commit suicide through this "Refusal". Rather, according to the document, the applicant is insisting upon what she describes as her "right as a competent adult to refuse to submit to medical and surgical procedures although the inevitable consequences of her decision will be my death."

The respondent, State of New York, appears in this proceeding by the Attorney General in opposition to the application requesting that it be denied contending that there is no justiciable controversy.

Also as an affirmative defense, the Attorney General claims it is merely a nominal respondent in this action and, inasmuch as there is no indication that the applicant has had any contact with any state agency or employee relative to her medical treatment, naming the State of New York as a party respondent is improper. Furthermore, it is claimed that the State may only be sued as it has consented to be sued and is otherwise immune from suit and has not consented to be sued as an entity in the Supreme Court of the State of New York, and so the action must be dismissed as the court has no jurisdiction of the subject matter of the action.

A memorandum of law has been submitted by the Society for the Right to Die as Amicus Curiae. Said Society urges the court to find that a "Living Will", such as that executed by the applicant, is clear and convincing evidence of a patient's wishes, which may be acted upon when the patient is incompetent and without hope of recovery.

The Society estimates that its members and contributors number 100,000 nationwide, more than 18,000 of whom are in New York. In addition to its members who have requested "Living Wills", hundreds of thousands of "Living Wills" have been distributed on request to people who have not become contributing members. The Society estimates that approximately 80,000 "Living Wills" have been executed in New York.

Although there are aspects of the case at bar wherein it can be said that the application is premature, or not ripe for determination, yet, for all the reasons set forth by the parties, the underlying issue is of public importance and is of a recurring nature of a type that is likely to escape any appropriate court review or determination, because it reaches the court at a time when it is really too late for the court to afford any meaningful relief.

The fact the applicant has not yet entered a specific hospital, or that she has not been denied her choice of medical treatment in the past, is not a sufficient basis on which to deny the application out of hand on technical grounds despite the holding in A.B. v. C., 124 Misc.2d 672, 477 N.Y.S.2d 281.

The court finds that even at the present time a substantial controversial issue exists with respect to the applicant's future rights concerning the manner in which her life and body should be treated in the event her very existence becomes dependent upon artificial life supporting systems. Such an issue pertaining to a prospective right invokes and does not foreclose an application for declaratory relief. (Borg v. New York Majestic Corp., Sup., 139 N.Y.S.2d 72).

The court is vested with discretionary power to exercise the right of a declaratory judgment. "CPLR § 3001 is a remedial provision the primary purpose of which is to stabilize legal relations and eliminate uncertainty as to the scope and content of present or prospective obligations." (New York Civil Practice--Weinstein, Korn & Miller, Vol. 3 § 3001.02; see Barry v. Ready Reference Publishing Co., 25 A.D.2d 827, 269 N.Y.S.2d 665). The aim of a declaratory judgment is to enable a party whose rights, privileges and powers are endangered, threatened or placed in uncertainty to evoke the aid of the court to obtain a declaration of his or her rights or legal relations. The objective of the declaratory judgment in our practice is to obtain relief from just such uncertainty and doubt. (See Town of Ohio v. People, 264 App.Div. 220, 35 N.Y.S.2d 107).

The present action is in the nature of a declaratory judgment as defined by Article 30 of the CPLR which provides at § 3001 as follows:

"The Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the party to a justiciable controversy, whether or not further relief is or could be claimed. If the court declines to render such a judgment it shall state its grounds."

Furthermore, the court finds that it is properly called upon to declare the meaning of 10 NYCRR § 405.25(a)(7) (Patient's Rights) as to its implementation and application to petitioner and to define, in the light of 10 NYCRR § 405.25(a)(7), the effect of a document referred to as a "Living Will" which the petitioner has executed. (see Maguire v. Monaghan, 206 Misc. 550, 554, 134 N.Y.S.2d 320). Also, rather than to dismiss the petition on technical grounds, the court finds that it is necessary to make a determination on behalf of the petitioner and to set forth the effect of the document for physicians and hospitals dealing with the care of the petitioner in order that there be no need for court orders or concern for their own rights in fulfilling their obligation to carry out the wishes of the petitioner as expressed in said document to the extent, at least, that the court believes it should do so.

Responsible parties who wish to comply with the law in cases where the legal consequences of the contemplated action is uncertain need not act at their peril (New York Public Interest Research Group, Inc. v. Carey, 42 N.Y.2d 527, 530, 399 N.Y.S.2d 621, 369 N.E.2d 1155).

The State of New York does not prohibit a patient from declining necessary medical treatment, nor does it prohibit a doctor from honoring a patient's refusal. (See Matter of Storar & Eichner v. Dillon, 52 N.Y.2d 363, 438 N.Y.S.2d 266) The court finds that every human being competent and of sound mind has a right to determine what should be done with his or her body and health, (see Matter of Lydia E. Hall Hospital, 116 Misc.2d 477, 455 N.Y.S.2d 706).

It is certainly not against public policy to permit a terminally ill patient to choose not to delay the inevitable and imminent termination of his or her life. (see Matter of Eichner, 73 A.D.2d 431, 426 N.Y.S.2d 517; 52 N.Y.2d 363, ...