Shirley C., Matter of

• Decision Date: 31 August 1987
• Citation: 519 N.Y.S.2d 328,136 Misc.2d 843
• Parties: In the Matter of SHIRLEY C., a Patient at Pilgrim Psychiatric Center.
• Court: New York Supreme Court

Page 328

519 N.Y.S.2d 328

136 Misc.2d 843

In the Matter of SHIRLEY C., a Patient at Pilgrim Psychiatric Center.

Supreme Court, Suffolk County.

August 31, 1987.

Robert Abrams, Atty. Gen., Happauge, for Pilgrim Psychiatric Center, petitioner by John Stolfi, Asst. Atty. Gen.

Paul Gianelli, Hauppauge, for Sonia Schwartz, intervenor.

Francis Savastan, Director of Mental Health Information Service, Guardian Ad Litem by Lesley Margaret DeLia, Pilgrim State Hosp. West Brentwood.

DENIS R. HURLEY, J.S.C.

By order to show cause returnable on July 24, 1987, the petitioner, in his capacity as Acting Executive Director of Pilgrim Psychiatric Center (hereinafter "Hospital"), seeks an order authorizing a "modified radical mastectomy of the left breast" to be performed on Shirley C., a patient at the facility. That request is opposed by the patient's daughter, Sonia Schwartz. Mrs. Schwartz was granted intervenor status in the proceeding with the consent of the Assistant Attorney General, representing the Hospital, and the Mental Health Information Service lawyer-guardian ad litem, representing Mrs. C..

The basis for Mrs. Schwartz's opposition is that a more conservative, less mutilating form of treatment should be afforded to her mother than the modified radical mastectomy requested by the Hospital, viz. a lumpectomy followed by radiation treatment.

Initially, it must be emphasized that Mrs. Schwartz is not the guardian ad litem for her mother, nor is she in a position to

dictate the medical treatment to be provided in this case. The question before this court is whether the petitioner-hospital has established that the requested modified radical mastectomy is necessary, and in the best interest of the patient. However as an intervenor, Mrs. Schwartz had the right to call witnesses to the stand, cross-examine the witnesses called by others, and otherwise fully participate in the court proceeding, as she has done.

FACTS

Mrs. C. is eighty one years of age, and has been hospitalized for mental illness for more than forty years.

In April of this year, a mass was detected in her left breast. It was felt by the Hospital--correctly as all parties to the present action concede--that Mrs. C.'s mental illness rendered her incapable of providing, or withholding consent to the needed medical procedures. Accordingly, her daughter's permission was sought for a biopsy and, if necessary, for a modified radical mastectomy which, of course, would have involved the removal of her mother's breast. That permission was not given. Rather, authorization was provided for an excisional biopsy of the tumor, which was done on June 26, 1987. Malignancy was found, and the Hospital thereafter commenced the present action.

A number of doctors testified at the hearing, including Elliot Grossman, M.D., a consulting surgeon to the Pilgrim Psychiatric Center who was called by the Hospital, and Leonard Kessler, M.D., an, inter alia, Board Certified oncologist, who testified on behalf of Mrs. Schwartz's position.

It is unnecessary to detail the considerable medical evidence in the record, for the areas of disagreement are few.

Doctors Grossman and Kessler agree that the two alternative medical procedures under discussion (viz. modified radical mastectomy, and lumpectomy followed by radiation treatment) are: (1) equally effective for her type of cancer which is in the earliest, or Stage 1(a) clinical phase (2) both conventional in the sense of being routinely performed and accepted in the medical profession and (3) comparable "cost wise" to the extent that factor may legitimately be included in the equation in this case. Both procedures would involve an auxillary nodes dissection, conducted in an effort to determine whether the malignancy has metastasized.

Both procedures have "pluses" and "minuses". A modified radical mastectomy would entail the loss of a breast, but would not involve follow-up radiation treatment for this patient. The alternate procedure would leave the breast essentially intact, but would require radiation therapy for 15 minutes a day over the course of six weeks. The uncontroverted testimony of Doctor Kessler described the resulting side effects from radiation as probably minimal, consisting of a slight loss of appetite, possible mild nausea and possible thickening of the radiated tissue.

The pivotal area of disagreement is whether Mrs. C. is an appropriate candidate for radiation therapy. She suffers from Parkinson's disease and from tardive dyskinesia. Is she capable of keeping her chest area sufficiently still so that radiation may be administered?

Doctor Grossman testified that he observed Mrs. C. suffer almost continuous tremors while she was lying on a table for a fifteen minute period on August 24, 1987, in presence of himself and Doctor Diamond. More importantly, he reported to the court that Doctor Diamond, who is the radiologist who would normally service a patient such as Mrs. C. from the Pilgrim Psychiatric Center, has indicated that he will not do so in this case regardless of the results of the present proceeding.

Unfortunately, Doctor Diamond did not testify. Doctor Grossman, who is a surgeon rather than a radiologist, did not know for what part of the fifteen sessions a patient must remain still. Doctor Kessler, the oncologist who had a one year residency in radiology, indicated that the period is between forty-five seconds and one minute if a linear accelerator is used. Doctor Kessler also observed that Mrs. C. recently underwent a bone scan which required Doctor Kessler further testified that the patient's dual affliction of Parkinson's disease and tardive dyskinesia involve tremors of the extremeties, not the trunk and chest area which would be subject to radiation in this case. In his judgment--based on his experience, review of the records furnished to him and his one hour examination of the patient--Mrs. C. is an appropriate candidate for radiation therapy. He opined that even if she ultimately proves not to be--contrary to his expectation--the more conservative treatment should be tried prior to removing her breast.

her to remain relatively still for a period of forty-five to sixty minutes, although neither he nor Doctor Grossman knew exactly how still.

Parenthetically, it is clear that the modified radical mastectomy would be less burdensome to the Hospital caretaker, due to the reduced need for follow-up care, and the posture taken by Doctor Diamond of Central General Hospital which facility provides for most--but not all--of the surgical needs of patients at Pilgrim Psychiatric Center.

And finally by way of a review of the facts, the evidence of the patient's self awareness will be considered. If she is incapable of appreciating the presence, or absence, of her breast, the present discussion would be academic. In that regard, Mrs. Schwartz testified that her mother has a sense of self awareness. For instance, Mrs. C. has insisted on putting on a brassiere, altering her hair style and wearing stockings before leaving the hospital grounds with her family members. Doctor Kessler similarly voiced the opinion that Mrs. C. possesses self awareness. Although she failed to answer most of his questions during her visit to his office on August 10th, she did tell him: "I don't want my breast cut off". Perhaps this was simply a meaningless utterance by a mentally ill person. Her guardian ad litem reports that Mrs. C. does not want "anything" done so, she argued, little, if any, weight should be given to the statement.

APPLICABLE LAW

The intervenor, Sonia Schwartz, argues that she is entitled to elect the type...