Grace Plaza of Great Neck, Inc. v. Elbaum

183 A.D.2d 10, 588 N.Y.S.2d 853, 1992 N.Y. App. Div. LEXIS 10728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1992
• Status: Published

Opinions

OPINION OF THE COURT

Bracken, J.

The Supreme Court held that a health care facility which provides life-saving medical treatment to an incompetent patient in accordance with the orders of the patient’s attending physician, but over the objections of the patient’s conservator, forfeits the fees to which it would otherwise be entitled as a matter of contract, at least where the conservator in question claims to know what the patient’s own wishes would be regarding the administration of life-saving medical treatment. We believe that this holding is erroneous as a matter of law. It does nothing to advance the right of incompetent persons to refuse medical treatment, but instead exalts the "right” of surrogate decision makers, without any written authorization from the patient, to dictate what kind of medical treatment an incompetent patient should receive. New York law does not recognize such a "right”. Instead New York law denies to all persons, whether family members or not, the right to decide when another person should die (see, Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Matter of Storar, 52 NY2d 363, cert denied 454 US 858). For these reasons, we conclude that the order must be reversed insofar as appealed from.

In September 1986 the plaintiff nursing home agreed to provide certain services to Jean Elbaum, an unconscious patient who could not survive without artificial nutrition and hydration, on condition that the defendant Murray Elbaum pay for the services. Mrs. Elbaum had never executed a living will.¹ Mr. Elbaum entered into this contract knowing that the services to be provided by the plaintiff would include the maintenance of a gastrointestinal feeding tube which had already been inserted at North Shore Hospital.

In October 1987 Mr. Elbaum demanded the cessation of nutrition and hydration, claiming that Mrs. Elbaum would have made a like demand, if she had been able to do so. Responding that there was no "clear indication” of Mrs. Elbaum’s desires in this respect, and also asserting that its own ethical standards would, in any event, prohibit it from withdrawing life-saving medical treatment from one of its patients, the plaintiff refused to comply with Mr. Elbaum’s demand and encouraged him to transfer Mrs. Elbaum to another, presumably more compliant, nursing home.

Mr. Elbaum’s response was to breach his contract by refusing to pay for any of the services which were thereafter rendered by the plaintiff, including those services needed to save Jean Elbaum’s life; the record does not reveal any effort on his part to locate an alternative nursing home. Efforts made by the plaintiff to locate another facility were fruitless; those facilities which were contacted "would not admit the patient for the purpose of removing the tube”.

To uphold the decision of the Supreme Court, we would have to promulgate a new rule of law: that health care providers must withdraw life support from their incapacitated patients, even in the absence of court authorization, whenever the incapacitated patient’s personal representative, claiming to act in the name of the patient’s own "right to die”, demands the withdrawal of life support. This rule would obviate the need for any judicial intervention for the purpose of defining what the wishes of an incapacitated patient actually are by attaching a presumption of infallibility to the conservator’s opinion as to the nature of those wishes, thus making the conservator the final arbiter of the conservatee’s life or death. While this rule may one day become part of the law in this State, if certain proposals are ever enacted into law,² it is not the law now, nor was it the law at the time of the events herein.

The defendant Murray Elbaum argues that he rightfully refused to pay the plaintiff nursing home for the services it was rendering to his wife, Jean Elbaum, pursuant to its contract with him. He contends that as soon as he informed the plaintiff of his belief that Jean Elbaum, if able to do so, would have refused nutrition and hydration, the plaintiff should have withdrawn nutrition and hydration, and should have consequently caused its patient’s death, even in the absence of a court order. Mr. Elbaum also argues, in support of his counterclaims, that in continuing to furnish nutrition and hydration to Mrs. Elbaum, the plaintiff committed a battery.

Mr. Elbaum contends, and our dissenting colleague agrees, that our decision in Elbaum v Grace Plaza (148 AD2d 244) is dispositive of these arguments, because the text of our decision in that case contains statements to the effect that the plaintiff’s services were "undesired”. It is true that this is precisely what our Court found. In holding that, if competent, Jean Elbaum would have refused nutrition and hydration, we concluded that the plaintiff’s furnishing of such services was, as a matter of fact, "undesired” by her. What we obviously did not hold, however, is that the plaintiff acted wrongfully in keeping Mrs. Elbaum alive until the actual nature of her desires had in fact been proved.

Mr. Elbaum argues that because, in 1989, this Court found that Mrs. Elbaum would, if able, refuse the life-saving treatment offered to her, the plaintiff nursing home should have known, in 1987, that those were in fact Mrs. Elbaum’s wishes. This argument attributes to the plaintiff not only the power to see into the mind of a comatose patient, but the power to see into the minds of the members of an appellate court which, as of 1987, was not to be convened for another two years. Clearly, the plaintiff at no point knew Mrs. Elbaum’s wishes, nor could it ever have known anything more than Mr. Elbaum’s view as to what those wishes were. The rule which prevents physicians from recovering payment for medical services which are not desired (e.g., Shapira v United Med. Serv., 15 NY2d 200) should not be applied in a case where, because the patient is comatose, her desires cannot be known, but can only be deduced, with a greater or lesser degree of certainty, from evidence of her past conduct and past statements.

In Matter of Eichner (Fox) (73 AD2d 431, 450, mod on other grounds 52 NY2d 363), this Court stated that a physician who, without court authorization, deliberately causes the death of a "vegetative” patient, could face criminal prosecution for homicide (citing Penal Law §§ 120.30, 125.00, 125.15 [3]; § 125.25 [1] [b]; 2 Wharton, Criminal Law § 137 [14th ed]; Repouille v United States, 165 F2d 152, 153-154; see also, In re President & Dirs. of Georgetown Coll., 331 F2d 1000, at 1009, n 18, cert denied 377 US 978; Jones v United States, 308 F2d 307; Payne v Marion Gen. Hosp., 549 NE2d 1043 [Ind App]; People v Roberts, 211 Mich 187, 178 NW 690; cf., Barber v Superior Ct., 147 Cal App 3d 1006, 195 Cal Rptr 484; Annotation, Homicide—Physician’s Withdrawal of Life Supports from Comatose Patient, 47 ALR4th 18; Comment, The Crime of Aiding a Suicide, 30 Yale LJ 408 [discussing People v Roberts, supra]). In modifying our decision in Matter of Eichner (supra), the Court of Appeals did not disagree with this assertion, and stated that physicians who engage in such conduct "act at their peril” unless prior judicial approval is obtained (Matter of Storar, 52 NY2d 363, 382, supra), thus reaffirming the rule that passively causing death can constitute criminal homicide (see, People v McDonald, 49 Hun 67 [no defense that infant’s death by starvation resulted from inaction]; see also, People v Phillips, 64 Cal 2d 574, 414 P2d 353 [doctor liable for murder based on advice to patient to forego life-saving surgery]). Mr. Elbaum now contends that the plaintiff acted "at its peril” not because it was willing to withdraw life support from an incompetent patient without court permission, but because it refused to withdraw life support from an incompetent patient without court permission. We cannot accept this argument.

New York at present expressly rejects any form of surrogate decision-making in "right to die” cases because such an approach would be "inconsistent with our fundamental commitment to the notion that no person or court should substitute its judgment as to what would be an acceptable quality of life for another” (Matter of Westchester County Med. Ctr. [O’Connor], supra, at 530; see, People v Eulo, 63 NY2d 341, 357; Matter of Storar, supra; see also, Cruzan v Harmon, 760 SW2d 408 [Mo], affd sub nom. Cruzan v Director, Mo. Dept. of Health, 497 US 261). New York requires that incompetent patients be given adequate hydration and nutrition (see, 10 NYCRR former 416.3; 10 NYCRR 415.12 [i], [j]; see also, Public Health Law § 2803-c [3] [e]; NYS Dept of Health Mem 89-24 [Oct. 20, 1989]; 42 CFR 483.25 [j]). New York provides for civil, administrative, and, as noted above, even criminal penalties for any health-care professional who violates these obligations without court approval (see, Public Health Law § 2801-d; see also, Public Health Law §§ 12, 12-b, 16; 10 NYCRR 81.7 [b]; People v Flushing Hosp. & Med. Ctr., 122 Misc 2d 260). The legal obligation to provide adequate nutrition and hydration to such patients ceases only after a "trier of fact [has been persuaded] that the patient held a firm and settled commitment to the termination of life supports under the circumstances like those presented” (Matter of Westchester County Med. Ctr. [O’Connor], supra, at 531; see also, Matter of Wickel v Spellman, 159 AD2d 576; Elbaum v Grace Plaza, 148 AD2d 244, supra; Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1).

That the State, through its various agencies, in fact threatens to impose administrative, civil, and even criminal sanctions on those physicians who withdraw life support from incompetent patients without court permission was made particularly evident in the present case when an Assistant District Attorney, representing the People of the State, expressly told the court that if the plaintiff had withdrawn life support from Mrs. Elbaum without court permission, it "would have faced the prospect of criminal sanction including a Grand Jury inquest, possibly an indictment, a trial and a conviction”. The State should not be allowed to threaten that such legal sanctions may be imposed on a physician who withdraws life support without court permission, on the one hand, while at the same time threatening to impose sanctions (loss of payments otherwise owed under contract; liability for battery) on a physician who waits for court permission before withdrawing life support, on the other. Several commentators have already warned that, as the law develops in this sensitive area, the courts should be careful to avoid creating such "Catch-22” situations (see, Oddi, The Tort of Interference with the Right to Die: The Wrongful Living Cause of Action, 75 Geo LJ 625, nn 51-53; Grant, Cleave, A Line Less Reasonable: Cruzan and the Looming Debate Over Euthanasia, 2 Md J Contemp Legal Issues 99; see also, Rosenblum, Forsythe, The Right to Assisted Suicide: Protection of Autonomy, or an Open Door to Social Killing? 6 Issues in L & Med 3).

Our dissenting colleague’s claims are not only unprecedented in New York, but have scant support even in those States which have adopted the "substituted judgment” rule, and thus allow for various kinds of surrogate decision-making (e.g., Matter of Jobes, 108 NJ 394, 529 A2d 434; Brophy v New England Sinai Hosp., 398 Mass 417, 497 NE2d 626; Conservatorship of Drabick, 200 Cal App 3d 185, 245 Cal Rptr 840). Even in these States, in which the right to die is broader than in New York, "the law will not require the medical profession to yield to private demands of surrogate decision makers” (Westhart v Mule, 213 Cal App 3d 542, 261 Cal Rptr 640, 646 [Crosby, Acting P. J., concurring] [depublished]). It has also been held, in these other jurisdictions, that no medical professional may be compelled to violate his own medical ethics by being forced to remove a feeding tube from an incompetent patient, unless the patient’s conservator proves the total unavailability of any physician willing to do so (see, Brophy v New England Sinai Hosp., supra; Conservatorship of Morrison, 206 Cal App 3d 304, 307, 253 Cal Rptr 530). In some of these States, it has been held that no cause of action for battery may be maintained against a medical professional who continues to provide treatment to a patient over the objections of the patient’s family (see, McVey v Englewood Hosp. Assn., 216 NJ Super 502, 524 A2d 450; see also, Werth v Taylor, 190 Mich App 141, 475 NW2d 426 [consent to life-savings treatment presumed, notwithstanding objections of an unconscious patient’s representative]; Benoy v Simons, 66 Wash App 56, 831 P2d 167; Bartling v Glendale Adventist Med. Ctr., 184 Cal App 3d 961, 229 Cal Rptr 360; cf., Estate of Leach v Shapiro, 13 Ohio App 3d 393, 469 NE 2d 1047; Young v Oakland Gen. Hosp., 175 Mich App 132, 437 NW2d 321).

It is important to recall that in Elbaum v Grace Plaza (supra, at 256-257), this Court held not only that Jean Elbaum had the right to have her feeding tube removed, but also that the plaintiff had no duty to participate in the removal of that tube in violation of its own medical-ethical judgment. Instead, the Court held that, in the event that no other nursing home facility would admit Mrs. Elbaum, the plaintiff would have to allow a physician retained by Mr. Elbaum to enter its premises in order to remove the tube. This aspect of our Elbaum decision is fully consistent with Matter of Delio v Westchester County Med. Ctr. (supra) and other cases (e.g., Brophy v New England Sinai Hosp., supra) which hold that medical professionals should not be compelled by the State to engage in conduct which they themselves consider unethical. A patient who wishes to abstain from life-saving medical treatment may have the right to do so, but has no right to force a physician to assist, actively or passively, in what the physician himself might regard as the equivalent of suicide.

In the present case, we cannot fault the plaintiff for. asserting its right to refrain from engaging in conduct which it considered unethical. Its ethical position is not idiosyncratic within the medical community (see, e.g., Grisez, Should Nutrition and Hydration be Provided to Permanently Unconscious and Other Mentally Disabled Persons, 5 Issues in L & Med 165; May, Feeding and Hydrating the Permanently Unconscious and Other Vulnerable Persons, 3 Issues in L & Med 203). It did nothing to impede Mrs. Elbaum’s transfer to another facility; instead, it actively sought to expedite that process. The apparent unwillingness of other facilities to admit Mrs. Elbaum for the sole purpose of removing her feeding tube can only be attributed to the fact that it was widely considered improper to engage in such life-terminating conduct without court authorization. In the absence of proof to the contrary, we can only presume that once court authorization had been obtained in Elbaum v Grace Plaza (supra), a facility willing to admit Mrs. Elbaum for the purpose of removing the tube was located without apparent difficulty. The plaintiff should not be held to have acted wrongfully when it refused to do the very thing (removal of life support without court permission) which no other comparable medical facility was willing to do.

In light of the foregoing, the defendant’s argument in the present case rests not so much on the proposition that Jean Elbaum had the right to die as on the proposition that the plaintiff and Dr. Corn had an absolute duty to put aside their own ethical scruples, as well as their fear of criminal prosecution, to assist her in the exercise of that right. Consistent with this position, Mr. Elbaum argues on appeal that a "requirement that patients be removed from non-complying nursing homes * * * would chill the exercise of [their] fundamental right to control [their] own medical treatment”. In other words, patients (competent or incompetent) bent on exercising their "right to die” should be spared the inconvenience of finding a compliant physician: all health care providers should be legally obligated to assist in bringing about the patient’s death and nursing homes should be required to do so, even without the approval of the patient’s physician. We cannot accept this argument. While we recognize the right of a patient to control the course of his or her treatment, we do not recognize any right to force a health care provider to render treatment which is contrary to his or her own conscience.

Our dissenting colleague makes a crucial finding of fact based on a proposition which we regard as wholly speculative, i.e., that Mrs. Elbaum’s wishes were at all times known to the plaintiff. According to the dissent, the plaintiff was "undeniably heedless of [Mrs. Elbaum’s] wishes”, and acted "in violation of her clearly declared wishes”. We see no basis in the record for making this finding of fact.

We consider it an exercise in futility, both as a matter of law and as a matter of science, to enter into a debate as to whether the plaintiff "knew” what Mrs. Elbaum wanted. No one had that knowledge. A more accurate way to frame the question is this: whether the plaintiff knew, or could have known, that the defendant, Mr. Elbaum, had within his control enough evidence to meet the "clear and convincing” standard of proof, and thus satisfy a court of law that Mrs. Elbaum wanted to die. To state, as the dissent apparently does, that the plaintiff should have had such knowledge, is to say that the decisions of New York courts in "right to die” cases are always perfectly predictable, and that the plaintiff should have known, in 1987, how this Court, in 1989, would ultimately decide the case of Elbaum v Grace Plaza (supra).

The dissent states that our decision in Elbaum v Grace Plaza (supra) is dispositive of all the issues now being raised on this appeal. The only similarity between the present case and Elbaum v Grace Plaza (supra) is that they involve the same parties: the issues brought up for review in the two cases are completely different. Whether Mrs. Elbaum had the right to die is one issue. Whether the plaintiff committed a battery or forfeited its contractual rights because it refused to assist Mrs. Elbaum in the exercise of this right, in the absence of judicial guidance, and in violation of its own ethics, is another, entirely different, issue.

Much is made of the fact that Dr. Corn testified that he would not remove artificial nutrition or hydration from a patient, even under court order. There never has been a court order issued in this State commanding a particular physician to do an act which is directly contrary to the physician’s own medical ethics; *in fact, our decisions in Elbaum v Grace Plaza (supra) and Matter of Delio v Westchester County Med. Ctr. (supra) hold that such an order would be erroneous. Thus, while Dr. Corn’s expressed willingness to suffer the penalties of contempt rather than compromise on an issue of conscience might provoke either admiration or indignation, depending on one’s point of view, the fact remains that his attitude in this regard is totally irrelevant.

The dissent places great weight on a letter from the plaintiff dated February 16, 1988, wherein the plaintiff took the position that it would not be willing to remove Mrs. Elbaum’s feeding tube even if evidence of her wishes were forthcoming. What the dissent overlooks is that our decision in Elbaum v Grace Plaza (supra) essentially confirmed the plaintiffs view that it had a legal right to abide by its own ethical standards.

It is asserted that, in light of our decision today, all health care providers in charge of competent patients will have an additional financial incentive to prolong the lives of such patients over the objections of the patients’ families. This may be true, and the potential evil which we see is that some beleaguered families may, regrettably, be forced to resort to litigation, although we believe that the dissent overdramatizes the extent to which this might place a burden on the judicial system. What is not noted is that, if Mr. Elbaum’s conduct in this case were condoned, health care providers would have an additional financial incentive to obey, without question, the orders of those conservators who might prematurely despair of their conservatee’s recovery, or the orders of those conservators whose judgment might be tainted by motives less altruistic than Mr. Elbaum’s. The potential evil we see resulting from this, i.e., the possible death of even one patient whose life might have been saved, is infinitely greater, in our view.

We therefore hold that, under the law as it stood at the time this case arose, the plaintiff committed no legal wrong, incurred no legal liability, and forfeited no legal right, when, in the absence of judicial guidance, it continued to provide life-saving medical treatment to a comatose patient over the objections of the patient’s conservator. If there are any reasons why this case should fall outside the scope of this rule, neither the Supreme Court nor our dissenting colleague has explained them to our satisfaction.

For these reasons, the order appealed from is reversed insofar as appealed from, on the law, the original determination in the order entered June 16, 1989, denying that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint is reinstated, the plaintiff is granted partial summary judgment as to liability for services rendered to Jean Elbaum, and the matter is remitted to the Supreme Court, Nassau County, for an assessment of damages.

Further, the order is affirmed insofar as cross-appealed from. The Supreme Court properly dismissed the defendant’s counterclaims. The actions of Dr. Corn and of the plaintiff did not constitute a battery (see, McVey v Englewood Hosp. Assn., 216 NJ Super 502, 524 A2d 450, supra). We need not pass on whether this claim is barred by the doctrine of claim preclusion.

1 . Public Health Law article 29-C, which is "intended to establish a decision-making process to allow competent adults to appoint an agent to decide about health care treatment in the event they lose decision-making capacity” (L 1990, ch 752, § 1) had not yet been enacted at the time the present dispute arose. Thus, the plaintiff nursing home could not benefit from the grant of immunity from civil or criminal liability which that legislation confers upon those health care professionals who withdraw life support from incapacitated patients in "good faith” reliance on the directions of a health care agent (see, Public Health Law § 2986 [1]).

2 . The New York State Task Force on Life and the Law has recommended amending the law so as to confer upon an incapacitated person’s "family” (a term which, depending on the case, is defined so as to mean a spouse, a parent, an adult son or daughter, or a "close friend”) the right to authorize the cessation of life-saving medical treatment. Pursuant to the recommendations made by this Task Force, the patient’s "family” would be empowered to direct the cessation of life support only if (1) a "bioethics” committee of the patient’s hospital or nursing facility approves, (2) the patient is permanently unconscious, (3) the patient is terminally ill, or (4) a court order is obtained (see, New Law on Medical Treatment Decisions Urged by Task Force, NYLJ, Mar. 24,1992, at 1, col 1).