675 NYS2d 807 | N.Y. Sup. Ct. | 1998
OPINION OF THE COURT
Anna Kushnir is an elderly hospital patient who was admit
A hearing was held in the courthouse on May 1, 1998, at which time Dr. Manuel Hovian testified as to the patient’s mental and physical condition. This was followed by a bedside hearing held at Parkway Hospital on May 4, 1998, during which the court observed the patient and took testimony from her son, Emil Molozanoff, the nutritionist, Marsha Walsh Geissler, and the hospital’s medical director, Dr. Shashi Patel.
FINDINGS OF FACT
Anna Kushnir is a 79-year-old Russian immigrant who was admitted to the Dry Harbor Nursing Home in October 1996 with a diagnosis of Alzheimer’s disease. In the course of the IV2 years at Dry Harbor she has progressively deteriorated both physically and mentally and in January 1998 she became noncommunicative. She is also incontinent and unable to leave her bed. Both Dr. Patel and Dr. Hovian testified that her condition is irreversible and will continue to deteriorate, regardless of whether or not she receives a feeding tube. When observed by the court, she was lying in a fetal position and attempts to communicate with her through a Russian interpreter proved futile. Her son, Emil, is her only living survivor. His father was killed during World War II when-he was three years old, and his mother was both mother and father to him.
When the son was asked whether his mother had ever expressed her wishes regarding medical treatment, if she became mentally incompetent, he related an incident that took place approximately 10 years earlier.
CONCLUSIONS OF LAW
New York, as well as most States, recognizes the common-law right of a competent person to decline medical treatment. (See, Schloendorff v Society of N. Y. Hosp., 211 NY 125, 129-130; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517, 528.) However, Mrs. Kushnir is totally incompetent and will never be able to express her wishes regarding the use of the feeding tube. Therefore, the court is placed in the unenviable position of attempting to ascertain the patient’s wishes since this is the subjective standard required by the New York courts. Moreover, in order for the court to determine that the feeding tube should be withheld, the patient’s wishes to that effect must be established by “clear and convincing evidence”. The Court of Appeals selected this standard because it impresses the fact finder with the importance of the decision and it forbids relief whenever the evidence is loose, equivocal or contradictory. (Matter of Storar and Matter of Eichner v Dillon, 52 NY2d 363, 379.) The evidence must be unequivocal when the decision to terminate life support is at issue. (Matter of Westchester County Med. Ctr. [O’Connor], supra, at 529.) In the O’Connor case, relied upon by the petitioner, the Court
Mrs. O’Connor had expressed her wishes not to be kept alive by artificial means in the past when family members and friends were dying of cancer. At the time of Mrs. O’Connor’s hearing, she was not suffering a terminal illness, but was aged and infirm from two debilitating strokes. She was awake and conscious, able to respond to simple comments, carry on limited conversations and was not experiencing any pain. She was not able to swallow food, because the stroke created a gag reflex problem. The Court said the infirmities she was concerned with and the medical procedures she eschewed should be compared with her condition now and the procedures in question (Matter of Westchester County Med. Ctr. [O’Connor], supra, at 532-533). The Court claimed that this comparison should not be dispositive, but should be only one of the elements to be considered. However, one cannot leave a reading of the decision in O’Connor without the feeling that this analysis was a major “element” in the Court’s final conclusion that “it cannot be said that Mrs. O’Connor elected to die under circumstances such as these” (supra, at 534).
Based on the Court of Appeals case-by-case reasoning in Storar (supra), Eichner (supra) and O’Connor (supra), this court finds that Parkway’s application to use a “PEG” feeding tube for Mrs. Kushnir should be denied. There is clear and convincing evidence that the use of such artificial means to prolong her life is against her wishes and would be futile and unnecessary. She does not have a gag reflex problem, as did
It is indeed unfortunate that Judges are called upon to play God in case-by-case situations. These decisions should properly be medical and personal — between the patient’s family and the medical profession. New York is one of the two States
Parkway’s petition for authorization to feed the patient by
. Transcript of hearing of May 4, 1998, at 13, lines 5-7.
. Transcript, op. cit., at 12, lines 17-22.
. Transcript, op. cit, at 5, lines 14-21.
. Transcript, op. cit., at 8, lines 10-18.
. It was common knowledge that Sonny Von Bulow was in a coma and was being fed artificially.
. At the May 4th hearing, the son was asked, “was that a similar condition to how your mother is now?” He answered, “In the sense of the brain activity, I think it’s the same.” (Transcript, op. cit., at 12, lines 3-6.)
. Missouri is the other State.
. See, 1997 NY Senate Bill S 4951 and 1997 NY Assembly Bill A 7026.