Elbaum v. Grace Plaza of Great Neck, Inc.

148 A.D.2d 244, 544 N.Y.S.2d 840, 1989 N.Y. App. Div. LEXIS 10643
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 2, 1989
StatusPublished
Cited by11 cases

This text of 148 A.D.2d 244 (Elbaum v. Grace Plaza of Great Neck, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elbaum v. Grace Plaza of Great Neck, Inc., 148 A.D.2d 244, 544 N.Y.S.2d 840, 1989 N.Y. App. Div. LEXIS 10643 (N.Y. Ct. App. 1989).

Opinion

OPINION OF THE COURT

Per Curiam.

The threshold issue presented on this appeal is whether it has been shown by clear and convincing proof that the conservatee, Jean Elbaum, who is in an irreversible, persistent, vegetative state without hope of recovery, and is presently receiving nutrition and hydration through a gastrointestinal tube, made a firm and settled decision, while competent, to decline such treatment under her present circumstances. Assuming that such a showing has been made, a further issue which has been raised by the defendant Grace Plaza of Great Neck, Inc. (hereinafter Grace Plaza), the nursing home in which Mrs. Elbaum has been a patient for almost three years, is whether Mrs. Elbaum’s wishes may be overcome by the nursing home’s interest in safeguarding what it perceives to be the ethical integrity of both the facility and the medical profession. We respond to the initial question posed in the affirmative and we find no basis for Grace Plaza’s refusal to allow Mrs. Elbaum’s wishes to be carried out.

I.

On June 30, 1986, the then-approximately 60-year-old Jean Elbaum was admitted to North Shore University Hospital suffering from headaches, memory difficulties and confusion. A CAT scan performed after Mrs. Elbaum’s admission to the hospital revealed the existence of subarachnoid bleeding. During the next 30 to 48 hours, according to Mrs. Elbaum’s attending physician, Dr. Jeffrey Kessler, Mrs. Elbaum’s condition markedly deteriorated. She thereafter fell into a deep [247]*247coma and became unresponsive except for reflex responses and other brain stem reflexes that remained preserved. During the several weeks thereafter, Mrs. Elbaum’s condition continued to deteriorate despite the hospital’s efforts. Dr. Kessler stated that during this period he authorized the use of a nasogastric tube, which was inserted through Mrs. Elbaum’s nose and into her stomach, to provide her with nutrition and hydration. On July 28, 1986, Dr. Kessler diagnosed Mrs. Elbaum as being in an irreversible, persistent, vegetative state with no hope of recovery. Notably, this diagnosis is not controverted by any evidence in the record.

According to Dr. Kessler’s testimony, he did not apprise Mrs. Elbaum’s husband or children of his diagnosis until sometime between July 28 and August 6, 1986. When the Elbaum family was ultimately informed of Mrs. Elbaum’s physical condition, Dr. Kessler also advised them that because Mrs. Elbaum was severely neurologically impaired, the continued use of a nasogastric tube as a means of feeding was not desirable. Rather, a gastrointestinal feeding tube, inserted through the abdominal wall during a surgical procedure known as a gastrostomy, would be necessary. The family was also informed that Mrs. Elbaum would require long-term nursing care and that no nursing home would accept her as a patient without a gastrostomy having been performed. When the insertion of a gastrointestinal tube was initially proposed, Mr. Elbaum asked what would happen if he refused to give his consent to such a procedure. Dr. Kessler responded that the hospital would be required to commence legal proceedings to authorize such a procedure. Mr. Elbaum informed Dr. Kessler that the Elbaum family was reluctant to consent to the insertion of the gastrointestinal tube in view of Mrs. Elbaum’s previously expressed wishes to the contrary. According to Dr. Kessler, the Elbaum family continued to "drag their feet and be extremely reluctant to sign for the gastrostomy”, but their consent was finally provided after the family was repeatedly told that legal proceedings would result unless consent was given. The gastrostomy was performed on September 2, 1986, and 2Vi weeks later, Mrs. Elbaum was transferred to Grace Plaza.

On the eve of her transfer to the nursing home, Mr. Elbaum and his daughter met with the defendant Dr. Lester Corn, the medical director for Grace Plaza, and, according to their testimony, advised him that Mrs. Elbaum had previously stated that in the event she was ever in a "vegetable-like” [248]*248state with no hope of recovery, she would not want to be kept alive, and that she had specifically stated that she did not want the use of a respirator, antibiotics or tubes to keep her alive. Dr. Corn testified, however, that while he was told about the circumstances under which the gastrointestinal tube had been implanted, Mr. Elbaum and his daughter merely advised him that he was not to intervene or perform any heroic measures to prolong Mrs. Elbaum’s life. Dr. Corn stated further that neither Mr. Elbaum nor his daughter suggested, at that time, that the gastrointestinal tube be removed.

Shortly after Mrs. Elbaum’s arrival at Grace Plaza, Mr. Elbaum, by letter dated September 22, 1986, provided Grace Plaza with a "Do Not Resuscitate” order (hereinafter DNR order) whereby the nursing home was advised that his wife was to receive no resuscitation and that no heroic measures were to be taken to sustain her life. The order further provided that, in the event Mrs. Elbaum developed an infection, no antibiotics or drug treatments were to be administered, and that no mechanical or other artificial respiratory means were to be used to sustain her life. According to Mr. Elbaum, after he provided Grace Plaza with the DNR order, he repeatedly advised Dr. Corn, on at least 6 to 12 different occasions, of his wife’s wishes with respect to the nonuse of respirators, tubes and antibiotics. On those occasions, Mr. Elbaum advised Dr. Corn that his wife had expressly stated that she would not want the use of feeding tubes if she were in an irreversible vegetative state. According to Mr. Elbaum, some of his discussions with Dr. Corn on these occasions were precipitated by the fact that the nursing home continued to administer antibiotics without Mr. Elbaum’s prior knowledge or consent. Dr. Corn admitted that he never notified the Elbaum family that he had administered antibiotics to -Mrs. Elbaum in 1987. Dr. Corn stated, however, that these treatments were necessary to prevent the possible spread of infection to the other patients.

By letters dated October 6, 1987, Mr. Elbaum advised both Dr. Corn and Celia Strow, the administrator of Grace Plaza, that in keeping with his wife’s previously described wishes, the gastrointestinal tube should be removed and that Dr. Corn, the nursing home and its staff should "refrain from administering anything other than comfort care to her”. Mr. Elbaum stated that he had not put his wife’s wishes in writing to the nursing home previously because he fully expected that Dr. Corn, who was aware of Mrs. Elbaum’s wishes, would comply with those wishes. By letter dated October 9, 1987, Dr. [249]*249Corn responded to Mr. Elbaum’s request and stated that the withdrawal of the gastrointestinal tube was contrary to the "dedication, to the law and to the policies and philosophy of Grace Plaza”. Thereafter, Mr. Elbaum ceased making any payments to Grace Plaza for his wife’s care.

Celia Strow testified that after her receipt of Mr. Elbaum’s written request for withdrawal of his wife’s gastrointestinal tube, she orally informed Mr. Elbaum of the facility’s policy against such an action and that she, thereafter, attempted without success to find a suitable nursing facility for Mrs. Elbaum which would accede to Mr. Elbaum’s request. By letter dated February 16, 1988, Ms. Strow advised Mr. Elbaum that the search for a transfer site had been unsuccessful. Moreover, Ms. Strow stated that the nursing home did not have a clear indication of Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ajnoha v. JC Penney Life Insurance
480 F. Supp. 2d 663 (E.D. New York, 2007)
Borenstein v. Simonson
8 Misc. 3d 481 (New York Supreme Court, 2005)
Knight v. Beverly H. C. Bay Manor H. C. Ctr.
820 So. 2d 92 (Supreme Court of Alabama, 2001)
Martin v. Martin
450 Mich. 204 (Michigan Supreme Court, 1995)
Grace Plaza of Great Neck, Inc. v. Elbaum
623 N.E.2d 513 (New York Court of Appeals, 1993)
Grace Plaza of Great Neck, Inc. v. Elbaum
183 A.D.2d 10 (Appellate Division of the Supreme Court of New York, 1992)
Wickel v. Spellman
159 A.D.2d 576 (Appellate Division of the Supreme Court of New York, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
148 A.D.2d 244, 544 N.Y.S.2d 840, 1989 N.Y. App. Div. LEXIS 10643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elbaum-v-grace-plaza-of-great-neck-inc-nyappdiv-1989.