In the Matter of Philip K. Eichner, on Behalf of Joseph C. Fox
Eighty-three-year-old Joseph Fox went into a PVS after a hernia operation. He was a member of a Roman Catholic religious order, the Society of Mary. The local director of the society, Philip Eichner, filed suit, asking for permission to have Fox's respirator removed.
The court reasoned that "the highest burden of proof beyond a reasonable doubt should be required when granting the relief that may result in the patient's death." The need for high standards "forbids relief whenever the evidence is loose, equivocal, or contradictory." Fox, however, had discussed his feelings in the context of formal religious discussions. Only two months before his final hospitalization, he had stated he would not want his life prolonged if his condition were hopeless. The court argued, "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" (In the Matter of Philip K. Eichner, on Behalf of Joseph C. Fox v. Denis Dillon, as District Attorney of Nassau County, N.Y., 420 N.E.2d 64, 1981).
The case of Joseph Fox was the first where the reported attitudes of an incompetent patient were accepted as "clear and convincing."
In the Matter of Westchester County Medical Center, on Behalf of Mary O'Connor
Not all patients express their attitudes about the use of life-sustaining treatments in serious religious discussions as did Joseph Fox. Nonetheless, courts have accepted evidence of "best interests" or "substituted judgments" in allowing the termination of life-sustaining treatments.
In 1985 Mary O'Connor had a stroke that rendered her mentally and physically incompetent. More than two years later she suffered a second major stroke, after which she had additional disabilities and difficulty swallowing. O'Connor's two daughters moved her to a long-term geriatric facility associated with the Westchester County Medical Center. During her hospital admission, her daughters submitted a signed statement to be added to their mother's medical records. The document stated that O'Connor had indicated in many conversations that "no artificial life support be started or maintained in order to continue to sustain her life."
In June 1988, when Mary O'Connor's condition deteriorated, she was admitted to Westchester County Medical Center. Because she was unable to swallow, her physician prescribed a nasogastric tube. The daughters objected to the procedure, citing their mother's expressed wish. The hospital petitioned the court for permission to provide artificial feeding, without which O'Connor would starve to death within seven to ten days. The lower court found in favor of O'Connor's daughters. The hospital subsequently brought the case of the seventy-seven-year-old woman before the Court of Appeals of New York (In the Matter of Westchester County Medical Center, on Behalf of Mary O'Connor, 531 N.E.2d 607 [N.Y. 1988]).
O'Connor's physician testified that she was not in a coma. While he anticipated that O'Connor's awareness might improve in the future, he believed she would never regain the mental ability to understand complex matters. This included the issue of her medical condition and treatment. The physician further indicated that, if his patient were allowed to starve to death, she would experience pain and "extreme, intense discomfort."
A neurologist testifying for the daughters reported that O'Connor's brain damage would keep her from experiencing pain. If she did have pain in the process of starving to death, she could be given medication. However, the doctor admitted he could not be "medically certain" because he had never had a patient die under the same circumstances.
The New York Court of Appeals majority concluded that, although family and friends testified that Mary O'Connor "felt that nature should take its course and not use artificial means" and that it is "monstrous" to keep someone alive by "machinery," these expressions did not constitute clear and convincing evidence of her present desire to die. Also, she had never specifically discussed the issue of artificial nutrition and hydration. Nor had she ever expressed her wish to refuse artificial medical treatment should such refusal result in a painful death.
The court further noted that O'Connor's statements about refusing artificial treatments had generally been made in situations involving terminal illness, specifically cancer—her husband had died of cancer and so did two of her brothers, her stepmother, and a close friend. Judge Wachtler, speaking for the Court of Appeals majority, stressed that O'Connor was not terminally ill, was conscious, and could interact with others, albeit minimally. Her main problem was that she could not eat on her own, and her physician could help her with that. Writing for the majority, Judge Wachtler stated:
Every person has a right to life, and no one should be denied essential medical care unless the evidence clearly and convincingly shows that the patient intended to decline the treatment under some particular circumstances…. This is a demanding standard, the most rigorous burden of proof in civil cases. It is appropriate here because if an error occurs it should be made on the side of life.
THIS IS TOO RESTRICTIVE
New York Court of Appeals' Judge Simons differed from the majority in his opinion of O'Connor's condition. O'Connor's "conversations" were actually limited to saying her name and the words okay, all right, and yes. Neither the hospital doctor nor the neurologist who testified for her daughters could say for sure that she understood their questions. The court majority mentioned the patient's squeezing her doctor's hand in response to some questions, but failed to add that she did not respond to most questions.
While it was true the patient was not terminally ill, her severe mental and physical injuries—should nature take its course—would result in her death. Judge Simons believed the artificial feeding would not cure or improve her deteriorating condition.
The Court of Appeals' Judge Wachtler had noted that O'Connor talked about refusing artificial treatment in the aftermath of the deaths of loved ones from cancer. He claimed this had no bearing on her present condition, which was not terminal. Judge Simons pointed out that O'Connor had worked for twenty years in a hospital emergency room and pathology laboratory. She was no casual observer of death, and her "remarks" about not wanting artificial treatment for herself carried a lot of weight. Her expressed wishes to her daughters, who were nurses and coworkers in the same hospital, could not be considered "casual," as the majority observed. Judge Simons stated:
Until today, under New York law, decisions concerning medical treatment remained the right of the patient. Today's opinion narrowly circumscribes our rule to a degree that makes it all but useless. Few, if any, patients can meet the demanding standard the majority has adopted….
The majority, disguising its action as an application of the rule on self-determination, has made its own substituted judgment by improperly finding facts and drawing inferences contrary to the facts found by the courts below. Judges, the persons least qualified by training, experience, or affinity to reject the patient's instructions, have overridden Mrs. O'Connor's wishes, negated her long-held values on life and death, and imposed on her and her family their ideas of what her best interests require.
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