Argued December 15, 1981
Decided March 31, 1981
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, DAVID O. BOEHM, J., ARTHUR B. CURRAN, J.
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ROBERT C. MEADE, J.
Stephen R. Sirkin, District Attorney (John B. Nesbitt of counsel), for District Attorney of Wayne County, appellant in the first above-entitled proceeding.
Robert Abrams, Attorney-General (Stanley Fishman, Shirley Adelson Siegel and Vincent M. Barone of counsel), for Charles S. Soper, appellant in the first above-entitled proceeding. James I. De Point for respondent in the first above-entitled proceeding.
Arlene A. Hughes, guardian ad litem for John Storar in the first above-entitled proceeding.
Denis Dillon, District Attorney (William C. Donnino, Anthony J. Girese and Judith R. Sternberg of counsel), for appellant in the second above-entitled proceeding. William F. Levine, Michael B. Grossman, Bertram B. Daiker and George Danzig Levine for respondent in the second above-entitled proceeding.
Robert C. Minion, guardian ad litem pro se, and John F. Mulholland for guardian ad litem in the second above-entitled proceeding. Jacqueline Nolan-Haley for Americans United for Life, amicus curiae in the second above-entitled proceeding.
In these two cases the guardians of incompetent patients objected to the continued use of medical treatments or measures to prolong the lives of the patients who were diagnosed as fatally ill with no reasonable chance of recovery. In Matter of Eichner, Brother Fox, an 83-year-old member of the Society of Mary, was being maintained by a respirator in a permanent vegetative state. The local director of the society applied to have the respirator removed on the ground that it was against the patient's wishes as expressed prior to his becoming incompetent. In Matter of Storar, a State official applied for permission to administer blood transfusions to a profoundly retarded 52-year-old man with terminal cancer of the bladder. The patient's mother, who was also his legal guardian, refused consent on the ground that the transfusions would only prolong his discomfort and would be against his wishes if he were competent. In each case the courts below have found that the measures should have been discontinued.
The orders of the lower courts were stayed and the treatments continued pending appeals to the Appellate Division and this court. Nevertheless both of the patients have died, thus rendering these particular controversies moot. However, the underlying issues are of public importance, are recurring in other courts throughout the State and, as these cases illustrate, are likely to escape full appellate review even when the appeals have been expedited. Under those circumstances we may, and often have, addressed the issues despite the mootness (see, e.g., Matter of Oliver v Postel, 30 N.Y.2d 171, 177-178; Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 436-437), particularly when, as here, the controlling principles have not been previously identified and discussed by this court (cf. Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707).
Brother Fox died after the case had been argued at the Appellate Division but before the decision had been handed down. John Storar died after the case had been argued in this court.
We also note that certain types of actions abate upon the death of a party (1 Am Jur 2d, Abatement Survival and Revival, § 75). The reason for the rule is lost in antiquity (1935 Report of NY Law Rev Comm, pp 157, 159, 176-179) and in modern times the rule itself has been abrogated by statute, except in a few cases (see, e.g., EPTL 11-3.2, 11-3.3; People v Mintz, 20 N.Y.2d 753). In the absence of any reason or controlling precedent to the contrary we have concluded that the problems posed by the death of the patients in these particular cases are properly resolved by consideration of the principles applicable to moot controversies (cf. People v Smith, 44 N.Y.2d 613, 617).
It should be emphasized though, that any guidance we may provide for future cases is necessarily limited. Unlike the Legislature, the courts are neither equipped nor empowered to prescribe substantive or procedural rules for all, most, or even the more common contingencies. Our role, especially in matters as sensitive as these, is limited to resolving the issues raised by facts presented in particular cases.
The need for judicial restraint in this area is illustrated by the dissent which has abstractly endorsed the right of third parties, at least family members, to adopt a course of "passive euthanasia" with respect to fatally ill incompetent patients, although it is not necessary to reach that issue on the facts of these cases. Presumably this right could only be exercised by family members, thus imposing a "restriction" which itself is open-ended, reaching to the limits of the family tree. We also assume that despite the blanket indorsement, the dissenter realizes the potential abuses involved in that concept and that because of that danger, the propriety of applying that concept can only be assessed in the context of a particular case.
On the records we have concluded that the order should be reversed in the Storar case. In the Eichner case the order should be modified and resolved on a narrower ground than relied on by the Appellate Division.
THE EICHNER CASE
For over 66 years Brother Joseph Fox was a member of the Society of Mary, a Catholic religious order which, among other things, operates Chaminade High School in Mineola. In 1970 Brother Fox retired to Chaminade where he resided with the religious members of the school's staff and continued to perform limited duties. In late summer of 1979 he sustained a hernia while moving some flower tubs on a roof garden at the school. He was then 83 years old and, except for the hernia, was found to be in excellent health. His doctor recommended an operation to correct the condition and Brother Fox agreed.
While the operation was being performed on October 1, 1979 he suffered cardiac arrest, with resulting loss of oxygen to the brain and substantial brain damage. He lost the ability to breathe spontaneously and was placed on a respirator which maintained him in a vegetative state. The attending physicians informed Father Philip Eichner, who was the president of Chaminade and the director of the society at the school, that there was no reasonable chance of recovery and that Brother Fox would die in that state.
After retaining two neurosurgeons who confirmed the diagnosis, Father Eichner requested the hospital to remove the respirator. The hospital, however, refused to do so without court authorization. Father Eichner then applied, pursuant to article 78 of the Mental Hygiene Law, to be appointed committee of the person and property of Brother Fox, with authority to direct removal of the respirator. The application was supported by the patient's 10 nieces and nephews, his only surviving relatives. The court appointed a guardian ad litem and directed that notice be served on various parties, including the District Attorney.
At the hearing the District Attorney opposed the application and called medical experts to show that there might be some improvement in the patient's condition. All the experts agreed, however, that there was no reasonable likelihood that Brother Fox would ever emerge from the vegetative coma or recover his cognitive powers.
There was also evidence, submitted by the petitioner, that before the operation rendered him incompetent the patient had made it known that under these circumstances he would want a respirator removed. Brother Fox had first expressed this view in 1976 when the Chaminade community discussed the moral implications of the celebrated Karen Ann Quinlan case, in which the parents of a 19-year-old New Jersey girl who was in a vegetative coma requested the hospital to remove the respirator (see Matter of Quinlan, 137 N.J. Super. 227, revd 70 N.J. 10, cert den sub nom. Garger v New Jersey, 429 U.S. 922). These were formal discussions prompted by Chaminade's mission to teach and promulgate Catholic moral principles. At that time it was noted that the Pope had stated that Catholic principles permitted the termination of extraordinary life support systems when there is no reasonable hope for the patient's recovery and that church officials in New Jersey had concluded that use of the respirator in the Quinlan case constituted an extraordinary measure under the circumstances. Brother Fox expressed agreement with those views and stated that he would not want any of this "extraordinary business" done for him under those circumstances. Several years later, and only a couple of months before his final hospitalization, Brother Fox again stated that he would not want his life prolonged by such measures if his condition were hopeless.
In a thoughtful and comprehensive opinion, Mr. Justice ROBERT C. MEADE at the Supreme Court held that under the circumstances Brother Fox would have a common-law right to decline treatment and that his wishes, expressed prior to becoming incompetent, should be honored. The court noted that the evidence of his stated opposition to use of a respirator to maintain him in a vegetative state was "unchallenged at every turn and unimpeachable in its sincerity."
The Appellate Division modified in an exhaustive and wide-ranging opinion by Presiding Justice MILTON A. MOLLEN. The court held that the patient's right to decline treatment was not only guaranteed by the common law but by the Constitution as well. It also found that this right should not be lost when a patient becomes incompetent and, if a patient has not made his wishes known while competent as Brother Fox had done, an appropriate person should be appointed to express the right on his behalf by use of "substituted judgment". The court went on to establish an elaborate set of procedures to be followed by doctors, hospitals, family members, parties and the courts before future applications of this nature may be entertained or granted. THE STORAR CASE
John Storar was profoundly retarded with a mental age of about 18 months. At the time of this proceeding he was 52 years old and a resident of the Newark Development Center, a State facility, which had been his home since the age of 5. His closest relative was his mother, a 77-year-old widow who resided near the facility. He was her only child and she visited him almost daily.
In 1979 physicians at the center noticed blood in his urine and asked his mother for permission to conduct diagnostic tests. She initially refused but after discussions with the center's staff gave her consent. The tests, completed in July, 1979, revealed that he had cancer of the bladder. It was recommended that he receive radiation therapy at a hospital in Rochester. When the hospital refused to administer the treatment without the consent of a legal guardian, Mrs. Storar applied to the court and was appointed guardian of her son's person and property in August, 1979. With her consent he received radiation therapy for six weeks, after which the disease was found to be in remission.
However in March, 1980 blood was again observed in his urine. The lesions in his bladder were cauterized in an unsuccessful effort to stop the bleeding. At that point his physician diagnosed the cancer as terminal, concluding that after using all medical and surgical means then available, the patient would nevertheless die from the disease.
In May the physicians at the center asked his mother for permission to administer blood transfusions. She initially refused but the following day withdrew her objection. For several weeks John Storar received blood transfusions when needed. However, on June 19 his mother requested that the transfusions be discontinued.
The director of the center then brought this proceeding, pursuant to section 33.03 of the Mental Hygiene Law, seeking authorization to continue the transfusions, claiming that without them "death would occur within weeks". Mrs. Storar cross-petitioned for an order prohibiting the transfusions, and named the District Attorney as a party. The court appointed a guardian ad litem and signed an order temporarily permitting the transfusions to continue, pending the determination of the proceeding.
 In response to the dissent we note that as a matter of public policy a medical facility generally has no responsibility or right to supervise or interfere with the course of treatments recommended by the patient's private physician, even when the patient is incapable of consent due to age (Fiorentino v Wenger, 19 N.Y.2d 407). That would be a matter to be decided by the private physician with the patient's family and the hospital would have no power to intervene or standing to sue.
In this respect this case is unusual because John Storar did not have a personal physician. His medical care was provided by various physicians assigned by the State facility where he resided. Thus under the peculiar facts of this case the center's concern for potential liability was real, at least insofar as it related to its role as treating physician. In other words here the center's status was more than that of a hospital which generally would lack sufficient interest to warrant any court relief.
At the hearing in September the court heard testimony from various witnesses including Mrs. Storar, several employees at the center, and seven medical experts. All the experts concurred that John Storar had irreversible cancer of the bladder, which by then had spread to his lungs and perhaps other organs, with a very limited life span, generally estimated to be between 3 and 6 months. They also agreed that he had an infant's mentality and was unable to comprehend his predicament or to make a reasoned choice of treatment. In addition, there was no dispute over the fact that he was continuously losing blood.
The medical records show that at the time of the hearing, he required two units of blood every 8 to 15 days. The staff physicians explained that the transfusions were necessary to replace the blood lost. Without them there would be insufficient oxygen in the patient's blood stream. To compensate for this loss, his heart would have to work harder and he would breathe more rapidly, which created a strain and was very tiresome. He became lethargic and they feared he would eventually bleed to death. They observed that after the transfusions he had more energy. He was able to resume most of his usual activities — feeding himself, showering, taking walks and running — including some mischievous ones, such as stealing cigarette butts and attempting to eat them.
The attending physicians recognized that it was possible that at some point the rate of blood loss might increase to such an extent that transfusions would be completely ineffective. At the time of the hearing, however, the rate had remained relatively constant.
It was conceded that John Storar found the transfusions disagreeable. He was also distressed by the blood and blood clots in his urine which apparently increased immediately after a transfusion. He could not comprehend the purpose of the transfusions and on one or two occasions had displayed some initial resistance. To eliminate his apprehension he was given a sedative approximately one hour before a transfusion. He also received regular doses of narcotics to alleviate the pain associated with the disease.
On the other hand several experts testified that there was support in the medical community for the view that, at this stage, transfusions may only prolong suffering and that treatment could properly be limited to administering pain killers. Mrs. Storar testified that she wanted the transfusions discontinued because she only wanted her son to be comfortable. She admitted that no one had ever explained to her what might happen to him if the transfusions were stopped. She also stated that she was not "sure" whether he might die sooner if the blood was not replaced and was unable to determine whether he wanted to live. However, in view of the fact that he obviously disliked the transfusions and tried to avoid them, she believed that he would want them discontinued.
The court held that the center's application for permission to continue the transfusions should be denied. It was noted that John Storar's fatal illness had not affected his limited mental ability. He remained alert and carried on many of his usual activities. However, the court emphasized that the transfusions could not cure the disease, involved some pain and that the patient submitted to them reluctantly. The court held that a person has a right to determine what will be done with his own body and, when he is incompetent, this right may be exercised by another on his behalf. In this case, the court found that John Storar's mother was the person in the best position to determine what he would want and that she "wants his suffering to stop and believes that he would want this also."
The court observed that "He remains alert to his environment, and he apparently recognizes the presence of others * * * He recognizes his attending day nurse, and pulls down his pajama bottoms when it is time for administration of his medicine."
The Appellate Division affirmed in a brief memorandum.
In the Eichner case the Supreme Court properly granted the petition. At common law, as CARDOZO noted, every person "of adult years and sound mind has a right to determine what should be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages * * *. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained" (Schloendorff v Society of N.Y. Hosp., 211 N.Y. 125, 129-130; see, also, Pearl v Lesnick, 20 A.D.2d 761, affd 19 N.Y.2d 590; Garzione v Vassar Bros. Hosp., 36 A.D.2d 390, affd 30 N.Y.2d 857; 2 Harper and James, Law of Torts, 61 [1968 Supp]; Patient's Right to Refuse Treatment Allegedly Necessary to Sustain Life, Ann., 93 ALR 3d 67). Even in emergencies, however, it is held that consent will not be implied if the patient has previously stated that he would not consent (Restatement, Torts 2d, § 62, Illustration 5; Powell, Consent to Operative Procedures, 21 Md. L Rev 189, 199; Bryn, Compulsory Life Saving Treatment for the Competent Adult, 44 Fordham L Rev 1, 15, n 64). The basic right of a patient to control the course of his medical treatment has been recognized by the Legislature (see Public Health Law, §§ 2504, 2805-d; CPLR 4401-a).
Father Eichner urges that this right is also guaranteed by the Constitution, as an aspect of the right to privacy. Although several courts have so held (see, e.g., Matter of Quinlan, 70 N.J. 10, supra; Superintendent of Belchertown State School v Saikewicz, 373 Mass. 728), this is a disputed question (see, e.g., Bryn, op. cit., pp 5-9), which the Supreme Court has repeatedly declined to consider (see Note, The "Living Will": The Right to Death With Dignity?, 26 Case Western Reserve L Rev 485, 501, n 76; see, also, Garger v New Jersey, 429 U.S. 922, supra). Neither do we reach that question in this case because the relief granted to the petitioner, Eichner, is adequately supported by common-law principles.
The District Attorney urges that the patient's right to decline medical treatment is outweighed by important State interests when the treatment is necessary to preserve the patient's life. We recognize that under certain circumstances the common-law right may have to yield to superior State interests, as it would even if it were constitutionally based (Roe v Wade, 410 U.S. 113, 154-155; Doe v Bolton, 410 U.S. 179). The State has a legitimate interest in protecting the lives of its citizens. It may require that they submit to medical procedures in order to eliminate a health threat to the community (see, e.g., Jacobson v Massachusetts, 197 U.S. 11). It may, by statute, prohibit them from engaging in specified activities, including medical procedures which are inherently hazardous to their lives (Roe v Wade, supra, pp 150, 154). In this State, however, there is no statute which prohibits a patient from declining necessary medical treatment or a doctor from honoring the patient's decision. To the extent that existing statutory and decisional law manifests the State's interest on this subject, they consistently support the right of the competent adult to make his own decision by imposing civil liability on those who perform medical treatment without consent, although the treatment may be beneficial or even necessary to preserve the patient's life (see, e.g., Schloendorff v Society of N.Y. Hosp., 211 N.Y. 125, supra; Matter of Erickson v Dilgard, 44 Misc.2d 27; Matter of Melideo, 88 Misc.2d 974; Public Health Law, §§ 2504, 2805-d; CPLR 4401-a). The current law identifies the patient's right to determine the course of his own medical treatment as paramount to what might otherwise be the doctor's obligation to provide needed medical care. A State which imposes civil liability on a doctor if he violates the patient's right cannot also hold him criminally responsible if he respects that right. Thus a doctor cannot be held to have violated his legal or professional responsibilities when he honors the right of a competent adult patient to decline medical treatment.
In other cases the State may be able to assert additional interests, such as, prevention of suicide or, perhaps, protection of minor children or dependents. Those concerns are inapplicable here. Brother Fox' condition was not self-inflicted (see, e.g., Bryn, op. cit., pp 16-24) and he has no children or dependents.
The District Attorney also urges that whatever right the patient may have is entirely personal and may not be exercised by any third party once the patient becomes incompetent. He notes that although a court may appoint a guardian to manage an incompetent's financial affairs and to supervise his person, some rights have been held to be too personal to be exercised by an incompetent's representative (see, e.g., Mainzer v Avril, 108 Misc. 230, 232; Matter of Barletta, 2 Misc. 2 135, 139; Matter of Rasmussen, 147 Misc. 564, 566; cf. Matter of Buttonow, 23 N.Y.2d 385, 394; Matter of Hills, 264 N.Y. 349, 354; 44 CJS, Insane Persons, § 49; 27 N.Y. Jur, Incompetent Persons, § 81). He argues that a right to decline lifesaving treatment conflicts with the patient's fundamental and constitutionally guaranteed right to life (US Const, 14th Amdt) and to permit a third party to choose between the two means, in effect, that the right to life is lost once the patient becomes incompetent. Finally he urges that if a patient's right to decline medical treatment survives his incompetency, it must yield to the State's overriding interest in prohibiting one person from causing the death of another, as is evidenced by the homicide laws.
The District Attorney's arguments underscore the very sensitive nature of the question as to whether, in case of incompetency, a decision to discontinue life sustaining medical treatment may be made by some one other than the patient (see, also, Kamisar, Some Non-Religious Views Against Proposed "Mercy-Killing" Legislation, 42 Minn L Rev 969; Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, 30 Rutgers L Rev 304). However, that issue is not presented in this case because here Brother Fox made the decision for himself before he became incompetent. The Supreme Court and the Appellate Division found that the evidence on this point, as well as proof of the patient's subsequent incompetency and chances of recovery was "clear and convincing". We agree that this is the appropriate burden of proof and that the evidence in the record satisfies this standard.
Although this is a civil case in which a preponderance of the evidence is generally deemed sufficient, the District Attorney urges that the highest burden of proof beyond a reasonable doubt should be required when granting the relief may result in the patient's death. But that burden, traditionally reserved for criminal cases where involuntary loss of liberty and possible stigmatization are at issue (Addington v Texas, 441 U.S. 418, 428), is inappropriate in cases where the purpose of granting the relief is to give effect to an individual's right by carrying out his stated intentions. However, we agree with the courts below that the highest standard applicable to civil cases should be required. There is more involved here than a typical dispute between private litigants over a sum of money. Where particularly important personal interests are at stake, clear and convincing evidence should be required (Addington v Texas, supra, p 424). It is constitutionally required in cases of involuntary civil commitments (Addington v Texas, supra) and we have recognized the need for the higher standard in exceptional civil matters (see, e.g., Ross v Food Specialties, 6 N.Y.2d 336; Amend v Hurley, 293 N.Y. 587; Porter v Commercial Cas. Ins. Co., 292 N.Y. 176). Clear and convincing proof should also be required in cases where it is claimed that a person, now incompetent, left instructions to terminate life sustaining procedures when there is no hope of recovery. This standard serves to "impress the factfinder with the importance of the decision" (Addington v Texas, 441 U.S. 418, 427, supra) and it "`forbids relief whenever the evidence is loose, equivocal or contradictory'" (Backer Mgt. Corp. v Acme Quilting Co., 46 N.Y.2d 211, 220).
In this case the proof was compelling. There was no suggestion that the witnesses who testified for the petitioner had any motive other than to see that Brother Fox' stated wishes were respected. The finding that he carefully reflected on the subject, expressed his views and concluded not to have his life prolonged by medical means if there were no hope of recovery is supported by his religious beliefs and is not inconsistent with his life of unselfish religious devotion. These were obviously solemn pronouncements and not casual remarks made at some social gathering, nor can it be said that he was too young to realize or feel the consequences of his statements (cf. Matter of Quinlan, 70 N.J. 10, supra). That this was a persistent commitment is evidenced by the fact that he reiterated the decision but two months before his final hospitalization. There was, of course, no need to speculate as to whether he would want this particular medical procedure to be discontinued under these circumstances. What occurred to him was identical to what happened in the Karen Ann Quinlan case, which had originally prompted his decision. In sum, the evidence clearly and convincingly shows that Brother Fox did not want to be maintained in a vegetative coma by use of a respirator.
In the Storar case, of course, we do not have any proof of that nature. John Storar was never competent at any time in his life. He was always totally incapable of understanding or making a reasoned decision about medical treatment. Thus it is unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent. As one of the experts testified at the hearing, that would be similar to asking whether "if it snowed all summer would it then be winter?" Mentally John Storar was an infant and that is the only realistic way to assess his rights in this litigation (see Bryn, op. cit., p 24, n 107). Thus this case bears only superficial similarities to Eichner and the determination must proceed from different principles.
A parent or guardian has a right to consent to medical treatment on behalf of an infant (Public Health Law, § 2504, subd 2). The parent, however, may not deprive a child of lifesaving treatment, however well intentioned (Matter of Sampson, 29 N.Y.2d 900; Matter of Vasko, 238 App. Div. 128; Matter of Santos v Goldstein, 16 A.D.2d 755, mot for lv to app dsmd 12 N.Y.2d 642; cf. Matter of Hofbauer, 47 N.Y.2d 648). Even when the parents' decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State's interests, as parens patriae, in protecting the health and welfare of the child (Matter of Sampson, supra; Jehovah's Witnesses v King County Hosp. Unit, 390 U.S. 598, affg 278 F. Supp. 488; People ex rel. Wallace v Labrenz, 411 Ill. 618, cert den 344 U.S. 824; Power of Public Authorities to Order Medical Care for A Child Over Objection of Parent or Guardian, Ann., 30 ALR 2d 1138; cf. Prince v Massachusetts, 321 U.S. 158). Of course it is not for the courts to determine the most "effective" treatment when the parents have chosen among reasonable alternatives (Matter of Hofbauer, 47 N.Y.2d 648, supra). But the courts may not permit a parent to deny a child all treatment for a condition which threatens his life (compare Custody of A Minor, 375 Mass. 733, with Matter of Hofbauer, supra, p 656). The case of a child who may bleed to death because of the parents' refusal to authorize a blood transfusion presents the classic example (Jehovah's Witnesses v King County Hosp., supra; Matter of Sampson, supra).
In the Storar case there is the additional complication of two threats to his life. There was cancer of the bladder which was incurable and would in all probability claim his life. There was also the related loss of blood which posed the risk of an earlier death, but which, at least at the time of the hearing, could be replaced by transfusions. Thus, as one of the experts noted, the transfusions were analogous to food — they would not cure the cancer, but they could eliminate the risk of death from another treatable cause. Of course, John Storar did not like them, as might be expected of one with an infant's mentality. But the evidence convincingly shows that the transfusions did not involve excessive pain and that without them his mental and physical abilities would not be maintained at the usual level. With the transfusions on the other hand, he was essentially the same as he was before except of course he had a fatal illness which would ultimately claim his life. Thus, on the record, we have concluded that the application for permission to continue the transfusions should have been granted. Although we understand and respect his mother's despair, as we respect the beliefs of those who oppose transfusions on religious grounds, a court should not in the circumstances of this case allow an incompetent patient to bleed to death because someone, even someone as close as a parent or sibling, feels that this is best for one with an incurable disease.
Whether the presence or absence of excessive pain would be determinative with respect to the continuation of a life sustaining measure need not be reached under the facts of this case.
In conclusion we note that it has been suggested by the District Attorney in the Eichner case that these applications do not present a justifiable controversy; that they call for innovations in the law, both substantive and procedural, which should be left to the Legislature, subject only to review by the courts for compliance with constitutional requirements (see, also, Matter of President Directors of Georgetown Coll., 3 F.2d 1000, 1010, 1015 [BURGER, J., dissenting]; Sharpe Hargest, Lifesaving Treatment for Unwilling Patients, 36 Fordham L Rev 695; Note, 77 Harv L Rev 1539). We, of course, cannot alter statutory responsibility but we can declare the rights and obligations of the parties under existing law. In fact the District Attorney does not contend that the courts can never rule upon the legality of such activities but suggests that the courts should wait for the parties to act before considering whether there is any civil or criminal liability. However, 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 v Carey, 42 N.Y.2d 527, 530). Nor is it inappropriate for those charged with the care of incompetent persons to apply to the courts for a ruling on the propriety of conduct which might seriously affect their charges.
We emphasize, however, that any such procedure is optional. Neither the common law nor existing statutes require persons generally to seek prior court assessment of conduct which may subject them to civil and criminal liability. If it is desirable to enlarge the role of the courts in cases involving discontinuance of life sustaining treatment for incompetents by establishing, as the Appellate Division suggested in the Eichner case, a mandatory procedure of successive approvals by physicians, hospital personnel, relatives and the courts, the change should come from the Legislature.
Accordingly, the order of the Appellate Division should be reversed, without costs, in the Storar case and modified, without costs, in the Eichner case by deleting everything but the authorization to the petitioner to discontinue use of the respirator.
I agree, and for the reasons stated by the majority, that these two cases should be addressed on their merits, notwithstanding that the deaths of the two patients have rendered moot the specific legal issues tendered. Similarly, I agree with the conclusion reached by the majority in Matter of Eichner. I find the address of the majority in Matter of Storar, however, inadequate to what 1 conceive to be the jurisprudential responsibility of our court in this case; I also differ with the result they reach.
I do not question that Judge WACHTLER'S opinion constitutes an accurate and clear statement of the highest common factors on which all members of the court are in agreement. In the normal case, if such an exposition were sufficient to dispose of the particular appeal, I would be reluctant to add a separate writing which would serve only to reflect an individual preference as to analysis or expression. These are not run-of-the-mill cases, however; they pose issues for judicial resolution in a field of the most far-reaching and solemn implications concerning which we do not yet have the benefit of any legislative enactment in New York or the guidance of any extensive body of decisional law. At the same time, while there is compelling reason to believe that the problems of the nature presented in these two cases have been of significant incidence in our society for many years, only relatively recently have they been identified for judicial attention. There are, however, abundant manifestations of both the breadth and depth of interest and concern on the part of the medical profession, theologians, ethicists, moralists, sociologists and criminologists, as well as of the public at large. In this circumstance I am persuaded that we have a special responsibility to express our views with respect to judicial participation in the resolution of individual cases, even if to do so results in unveiling differences in points of view among us or reveals doubt as to the extent of the authority or role of our courts in such cases. Either may provide the initiative for or underscore the desirability of legislative address and action.
(See, e.g., Kutner, Euthanasia: Due Process For Death with Dignity; The Living Will, 54 Ind LJ 201; Ufford, Brain Death/Termination of Heroic Efforts to Save Life — Who Decides?, 19 Washburn LJ 225; Note, Informed Consent and the Dying Patient, 83 Yale LJ 1632; Survey, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 Notre Dame Lawyer 1202; Fletcher, Ethics and Euthanasia, 73 Am J Nursing 670; Williamson, Prolongation of Life or Prolonging the Act of Dying?, 202 JAMA 162; 3 Houts, Courtroom Medicine, § 1.06, p 1-53; Pope Pius XII, Prolongation of Life, 4 AM Q Papel Doctrine 393; Burt, Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations.)
The generic issue presented is not of broad scope. We all recognize the right of a competent adult to make decisions with respect to his own medical or surgical care even if the consequence of the particular decision be to hasten death. The question before us is whether, and under what circumstances, a surrogate decision can be made on behalf of the patient when he is incompetent to make it himself, where he has been diagnosed as incurably ill, and where the decision relates to the withholding or withdrawal of extraordinary life support medical procedures. The question poses the problem of judicial involvement in passive euthanasia (sometimes called "dysthanasia") — the deliberate withholding or withdrawal of available clinical means for the prolongation of the life of a patient for whom there is little or no hope of recovery or survival. Treating as the subject does with irreversible decisions affecting life and death, we approach, and even may be thought by some to trespass on, the domain of Providence. Few areas of judicial activity present such awesome questions or demand greater judicial wisdom and restraint.
Because "euthanasia" can have two meanings, to avoid any possible misunderstanding I explicitly disclaim any intention, expressly or by implication, to invite consideration of "active" euthanasia — the deliberate use of a life shortening agent for the termination of life.
I identify two aspects of the problem so fundamental as to call for exposition by this court, neither of which receives express attention in the writing of the majority. The first is explicit acknowledgment that the problem is one which the judicial system is unsuited and ill-equipped to solve and which should not usually be made the subject of judicial attention. The lapse of time necessarily consumed in appellate review before there can be a final judicial determination will almost always be unacceptable and makes recourse to judicial proceedings impractical. The methodology and the techniques of our classic adversary system are not best suited to the resolution of the issues presented. The courts can claim no particular competence to reach the difficult ultimate decision, depending as it necessarily must not only on medical data, but on theological tenets and perceptions of human values which defy classification and calibration.
There is reliable information that for many years physicians and members of patients' families, often in consultation with religious counselors, have in actuality been making decisions to withhold or to withdraw life support procedures from incurably ill patients incapable of making the critical decisions for themselves. While, of course, there can be no categorical assurance that there have been no erroneous decisions thus reached, or even that in isolated instances death has not been unjustifiably hastened for unacceptable motives, at the same time there is no empirical evidence that either society or its individual members have suffered significantly in consequence of the absence of active judicial oversight. There is no indication that the medical profession whose members are most closely aware of current practices senses the need for or desires judicial intervention.
(Levisohn, Voluntary Mercy Deaths, 8 J For Med 57, 68 [Levisohn conducted a survey of the Chicago Medical Convention which revealed that 61% of the physicians present believed that euthanasia was being practiced by members of the profession]; Euthanasia Questions Stir New Debate, Med World News, Sept. 14, 1973, p 75 [87% of respondents to a poll of the Association of American Physicians reported they approved of passive euthanasia]; see, also, e.g., Harrison's Principles of Internal Medicine [9th ed], pp 6-7; Survey, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 Notre Dame Lawyer 1202, 1213; Wilkes, When Do We Have The Right To Die?, Life, Jan. 14, 1972, p 48; Medical Ethics: The Right To Survival, Hearings Before The Subcommittee On Health Of The Committee On Labor Public Welfare, 93 Cong, 2d Sess 9 .)
Luis Kutner, Chief Justice of the World Court of Human Rights, has recently written that doctors' attitudes toward euthanasia have changed: "Suprisingly, in a survey reported in mid-1974, 79% of physicians responding expressed some belief in the right of the patient to have a say about his death. The subject of death has also become an important part of medical school curriculum, whereas in the past there was a tendency to neglect it in other than a strictly clinical sense. Moreover, at its annual conference, the austere American Medical Association formally adopted the following policy statement: `The cessation of the employment of extraordinary means to prolong the life of the body where there is irrefutable evidence that biological death is imminent is the decision of the patient and-or his immediate family * * *'. This provided doctors with a sanction for what many had actually been doing for some time, since the practice of turning off machines, for example, to allow death to come to a patient whom only the machine is keeping alive is a fairly common practice for hospitals. As a matter of fact, doctors at the Yale University School of Medicine willingly acknowledged that they had quietly allowed 43 severly deformed infants to die by withholding treatment after the parents agreed there was little chance for `meaningful life.' The doctors disclosed this in hopes of breaking down `a major social taboo.'" (Kutner, Euthanasia: Due Process For Death With Dignity; The Living Will, 54 Ind LJ 201, 223.)
For all the foregoing reasons I would explicitly affirm the proposition that judicial approval is not required for discontinuance of life support procedures in situations such as those now before us and that neither civil nor criminal liability attaches simply by reason of the absence of a court order of authorization.
As to the second aspect, I nevertheless recognize that there will be occasions in which the courts will have thrust on them cases such as the two now before us. It is not difficult to anticipate instances in which for one or more of a variety of reasons a member of the patient's family or a close friend might desire to seek formal judicial approval of a proposal to withhold or to withdraw a particular extraordinary life support procedure. I would therefore explicitly affirm the authority of our courts, in proper cases and in proceedings appropriately instituted, to grant authorization for withholding or withdrawal of extraordinary life support medical procedures, notwithstanding the absence of evidence of an anticipatory expression of the attitude or wishes of the particular patient (as was present and the critical factor in the Eichner case).
Thus I would have hoped that our court in the appeals now before us, would expressly have recognized the availability of, but not the necessity for, judicial approval of surrogate decisions in cases such as these. The fact that there is no such recognition serves to underscore the high desirability, here and elsewhere expressed, of legislative attention and action.
Similarly, to the extent that an impelling reason for continuing to entertain cases which have become individually moot is to identify and discuss controlling principles and to set standards and provide guidance, not only for the lower courts which can be expected to confront similar cases, but also (and of greater practical significance) to the medical care providers who nearly daily are confronted with individual instances in which consideration is being given to withdrawal of life support procedures, our writings in these cases must fall short of what surely would have been desirable had it been possible to reach a broader consensus. Other than indicating an unreadiness to approve the detailed procedures laid down by the Appellate Division in Matter of Eichner the court will have provided little if any procedural guidance either to the lower courts in our State — for instance, as to who has standing to bring such proceedings and what must be shown to warrant judicial authorization for the relief sought — or to the medical care providers as to how or whether they may properly and safely proceed in the absence of express judicial authorization. I would much have preferred writings that would have provided more constructive direction both for the courts, to which will surely be presented, and perhaps in increasing volume, applications of the character now before us, and for hospitals and physicians, on whom the burden of responsibility for daily decisions so often falls. Absent such enabling consensus however, I perceive no useful purpose to be served by one member of the court presuming to express his views on what are procedural matters (as distinguished from the expression which I have felt compelled to make on two substantive issues).
With respect to the disposition of the appeals in these two cases: as stated, I would concur in result in Matter of Eichner; in Storar I would modify the order of the Appellate Division to the extent of dismissing the petition of Charles S. Soper as Acting Director of the Newark Developmental Center, and, as so modified, affirm. The dismissal would be premised on lack of standing of the hospital (or its director on behalf of the hospital) as a medical care provider to have instituted the proceeding seeking judicial authorization to continue blood transfusions against the wishes of Dorothy Storar, the patient's mother, guardian and committee. Medical care providers have at best only a tangential interest in the outcome of the litigation and can have no legitimate individual stake in the institution (or continuation) or the discontinuance of the medical procedure. Cases may arise in which it is appropriate to name the provider as a party defendant for the purpose of giving practical effect to the court's decision. In matters such as these it has been the practice in the past to recognize the standing of a public or quasi-public official to institute judicial proceedings (e.g., see cases cited majority opn, pp 380-381). Until today, however, this court has never recognized the standing of a medical care provider to seek authorization to continue medical care against the wishes of the patient or one who stands in his stead. Additionally I am apprehensive that to accord standing to medical care providers to seek authorization for continuation of extraordinary life support procedures in cases such as this might foster a perception that obtaining judicial approval should be the normal expectation (rather than a procedure to be resorted to only in extraordinary circumstances) and thus lead to an increase in the institution of such proceedings, in some instances as anticipatory defensive strategy with respect to possible future claims for malpractice. Nor would I know what significance, if any, to ascribe to the circumstance that extraordinary medical procedures in particular now often involve a very heavy economic cost which might, at least in some instances, have a bearing on the provider's incentive to institute or continue such care (as well, on the other side of the equation, as possibly to lead dependent family members to oppose expensive treatment). I would, however, recognize the standing of a member of the family such as John Storar's mother, or a close friend as in Eichner, to institute a judicial proceeding for authorization to withhold or to withdraw life support measures.
Nothing in article 33 of the Mental Hygiene Law or in the administrative regulations of the commissioner (14 N.Y.CRR 27.9 [c]) (assuming the power of the commissioner by promulgation of regulation to confer standing) conferred standing on the acting director of the developmental center to institute the present proceeding.
As to the merits in Storar, I find no sufficient ground, as a matter of law, to reverse the determination made by Supreme Court, now affirmed at the Appellate Division, and I perceive no other predicate on which the court can disturb the order of the Appellate Division; it cannot consider the matter de novo or make new determinations of fact except where the evidence in the record is so overwhelming as to require a particular determination as a matter of law.
While there was evidence, to which the majority refers, that the discontinuation of blood transfusions would have "eventually" led to John Storar's death (and inferentially perhaps before death would otherwise have been caused by his cancer of the bladder), no finding was made as to what extension of life would attend the continuation of transfusions. Supreme Court made the ambiguous finding, undisturbed by the Appellate Division, that "Storar has a life expectancy of from two to six months regardless of whether the blood transfusions are continued or not". Similarly, although evidence was introduced that following transfusions Storar had more energy and was able to resume most of his usual, limited activities, the courts below made no finding that continued transfusions would improve the quality of his life or, if so, in what respects or to what extent. In the absence of factual determinations with respect to these matters (and in my view the evidence in the record is not sufficient to justify this court's now supplying such findings as a matter of law), I cannot conclude as a matter of law that the courts below erred in authorizing discontinuance of the blood transfusions in the light of the factual determinations which the courts did make, to wit:
Indeed, in one perspective this case might be said to fall in a classification quite distinct from that in Eichner, namely, one concerning the authority of the courts to authorize a surrogate determination on behalf of an incompetent adult who is incurably ill, but lacks capacity to make such a determination himself, to discontinue an extraordinary life support medical procedure which is not necessarily prolonging his life, i.e., a decision relating to the quality but not the duration of life of a patient facing inescapably accelerated death. The courts below, and now the majority in our court, however, have analogized this case to that of Eichner, posing the question of extending ("at best * * * only a short extension of life", as the Appellate Division stated it [ 78 A.D.2d 1013]) the life of an incurably ill patient.
That John had cancer of the bladder which was both inoperable and incurable, with a life expectancy of from two to six months; that one who has cancer of the bladder suffers severe pain and the need for medication increases as the cancer spreads; that John had been in frequent pain and as his pain had increased his need for medication had also increased;
That the blood transfusions were painful although not excessively so; that because of John's apprehension and manifest dislike of the procedure the nurse had been giving him a shot approximately one hour before the transfusion; that he submitted to the blood transfusions reluctantly and because of the force that compelled him to submit; that recently he had had to be physically restrained and to have his arm tied down to prevent him from pulling out the needle used for the transfusion; that in contrast to his behavior prior to the commencement of the transfusions, he thereafter ventured outside his room infrequently; that he had appeared to be progressively more uncomfortable during the procedures; that as a result of the transfusions there was frequent clotting in his urine which made urination more painful; that the blood contributed to increased levels of sensitivity to the pain he was experiencing and contributed to his discomfort;
That the transfusions did not serve to reduce John's pain or to make him more comfortable; that the blood forced on him did not serve a curative purpose or offer a reasonable hope of benefit;
That if the transfusions were stopped John would suffer no additional pain, his discomfort would not increase, and indeed cessation might serve to make him less aware of the physical sensations he was experiencing and even lead to a subsiding of the bleeding from his bladder lesions;
That in the circumstances the blood transfusions were extraordinary treatments;
That because of his lifelong profound mental retardation John was incompetent to refuse or consent to the continuation of the blood transfusions or to make a reasoned choice as to his own wishes or best interests;
That his mother over his lifetime had come to know and sense his wants and needs and was acutely sensitive to his best interests; that she had provided more love, personal care, and affection for John than any other person or institution, and was closer to feeling what John was feeling than anyone else; that his best interests were of crucial importance to her;
That in his mother's opinion it would have been in John's best interests to discontinue the transfusions, and she believed that he would wish to have them stopped.
No one suggests that there is not sufficient evidence in this record to support each of these factual findings.
I would hold that the courts below had power to authorize the withdrawal of extraordinary life support measures and that, in the circumstances of this case, there was no error of law when the courts below exercised that power to grant Mrs. Storar's cross application to discontinue blood transfusions for her son, John.
Brother Fox and John Storar having each passed away, whether, had each one lived, it would have been more appropriate to prolong his life, hasten his death, or neither, is now moot. In this posture, two of my colleagues, incanting the need for judicial restraint, nevertheless have chosen to plunge into what in the end must be recognized for no more than an academic legal debate. In my view, that is a mistake. Far better would it be if we accepted the conclusion nature has wrought and left the cases where they were.
I do not question the power of courts to decide such questions. In open cases, when there is disagreement among those in whom reside the practical and primary responsibility to make such agonizing moral choices, when the disputants reach an impasse, the judiciary, the arm of our society trained to decide controversies between persons or between persons and the State, cannot shirk its obligation. But the cases before us now are already irrevocably concluded.
True, on rare occasions, we entertain causes that are abstract. But, never ones so deeply affected by so many nonlegal disciplines — theology, philosophy, sociology, psychology, biology, to name but a few. For the ultimate and forbidding issues are no less than the right to live or, if you will, the right to die (see, e.g., Veatch, Death, Dying and the Biological Revolution [Yale U Press]; Downing, Euthanasia and the Right to Die [Peter Own Limited, Lond]; Sefer Chasidism [Frankfurt ed, No. 315-318]; and see, generally, authorities cited in ns 1, 3 of Judge JONES' dissenting-in-part opn on this appeal).
It also goes without saying that the unavoidably complex interplay of the principles emanating from these competing specialities has grown with abounding medical and technological changes. These have dramatically enlarged the potential for prolonging the process of dying, painracked though it may be.
Consequently, it can come as no surprise that decisions on this subject — and today there is no dearth of them (e.g., Matter of Quinlan, 70 N.J. 10; Superintendent of Belchertown State School v Saikewicz, 373 Mass. 728; Matter of Eichner [ Fox], 73 A.D.2d 431 [MOLLEN, P.J.]) — all were handed down to meet the demands of ongoing controversies.
In this extraordinarily sensitive area of litigation, each new case is bound to present its own peculiar circumstances. Judicial freedom to react to its factual refinements, if need be quickly and, to a considerable degree, on a largely ad hoc basis, is essential. Given the precedential strictures of stare decisis (see, e.g., Thornton v Roosevelt Hosp., 47 N.Y.2d 780), to lay down law, then, is needlessly to tie our hands against the time when we are confronted by an appeal we have to decide. To reach out to do so prematurely is not to adjudicate, but legislate. Worse, I respectfully suggest, it is unwise to undercut a great strength of the common-law process, the evolution of law step by step as it moves from case to case.
I, therefore would dismiss each case for mootness.
In Matter of Storar: Order reversed, without costs, cross petition denied and petition granted.
Chief Judge COOKE and Judges JASEN, GABRIELLI and MEYER concur with Judge WACHTLER; Judge JONES dissents in part and votes to modify in an opinion; Judge MEYER votes to reverse, agrees with the reasoning in Part I of opinion by Judge JONES; Judge FUCHSBERG dissents and votes to reverse and remit the matter to Supreme Court, Monroe County, with directions to dismiss the proceeding for mootness in a separate opinion.
In Matter of Eichner: Order modified, without costs, in accordance with the opinion herein, and, as so modified, affirmed.
Chief Judge COOKE and Judges JASEN, GABRIELLI and MEYER concur with Judge WACHTLER; Judge JONES concurs in result in an opinion in Part I of which Judge MEYER also concurs; Judge FUCHSBERG dissents and votes to reverse and remit the matter to Supreme Court, Nassau County, with directions to dismiss the proceeding for mootness in a separate opinion.