Withdrawing a Feeding Tube in New York
New York Rule Compounds Dilemma Over Life Support
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May 12, 1992
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Had Rosemarie Doherty lapsed into a coma in Arkansas, Iowa, Louisiana, Texas or a long list of other states, her family could have instructed doctors to remove the feeding tube that snakes from her nose to her stomach and the breathing tube that is taped into a hole in her throat.
Had she lapsed into a coma in Florida or Washington, D.C., the instructions could even have come from a close family friend.
But Mrs. Doherty was living in New York State when she choked on a sandwich and fell unconscious on her kitchen floor in Brooklyn. As a result, her husband and son have spent a wrenching year trying to persuade doctors that she would not want to be kept alive this way.
New York's law on the removal of life support is the strictest but perhaps the most nebulous in the United States: It requires "clear and convincing evidence" of what a patient would have wanted, but leaves it to each hospital to determine exactly what that is. Interpreting Court Ruling
Over the last 10 years, as technology has become ever more proficient at keeping alive people who are not aware, nearly every state in the country has come to recognize living wills and, in the case of the vast majority of people who never sign such documents, to recognize a family's right to decide for someone they love. Although decisions are still difficult and disputes still arise between doctors and families, the law in those states -- either in specific legislation or in court precedents -- is generally on the side of families who request the withdrawal of life support.
But New York has never passed such legislation. What happens here is almost entirely a result of a 1988 court ruling, written by the state's chief judge as he was struggling to help his 86-year-old mother recover from a stroke.
Hospital administrators have interpreted the ruling to mean that when a patient has not left written instructions, families must prove the patient would not want to be kept alive by machines. The judge, Sol Watchler, acknowledges that the decision reflects his feelings about his mother's condition, but he says the ruling has been applied more widely than the court foresaw. Strong Opposition
In any case, more and more New York families find themselves scrambling to provide the proof demanded by hospital officials, often without success.
Recently Mrs. Doherty's husband, William, sat stroking the hand of his unresponsive wife, who was moved late last year from a hospital to a Brooklyn nursing home. "They said I'd need five people to swear Rosie had specifically said she would never want this tube, that tube, this antibiotic, that transfusion," Mr. Doherty said. "We never talked like that. Who talks like that? But I know she wouldn't want to live like this. No one would. Would you?"
This year, Gov. Mario M. Cuomo is expected to propose a new law to bring New York into line with nearly every other state (the exception being Missouri, where Nancy Cruzan was fed by a tube for years despite her family's objections and where laws are almost identical to current practice in New York). The legislation would allow family members to speak for patients who can no longer speak for themselves.
The bill faces strong opposition from conservative Catholic and Jewish groups, who fear this would make it too simple to end a person's life, and it has re-energized the right-to-die debate in New York.
Those who oppose the bill argue that there is no absolute way to define a person's condition as hopeless. They cite examples of people who recovered despite doctors' predictions that they never would. And no matter what the circumstances, they believe that everything should be done to keep someone alive because, they say, only God should determine when someone dies.
"It's one thing when the individual himself makes that choice -- we even have problems with that," said David Zweibel, general counsel and director of government affairs for Agudath Israel of America. "But this is a substantial step down the slippery slope toward recognizing suicide or euthanasia." Mother's Conversation
The law as it currently exists in New York is a result of a lawsuit brought in 1988 by the Westchester County Medical Center against the family of Mary O'Connor, a 77-year-old woman who was being fed through a tube in her nose after a series of strokes which left her conscious but severely debilitated. The hospital wanted to surgically insert a more permanent feeding tube into her digestive tract. But her daughters, both nurses, refused to consent to the surgery, saying their mother had said she would not want to be kept alive by artificial means.
Among the evidence the daughters presented was a conversation they had with their mother when a family friend underwent a long, painful chemotherapy treatment for cancer. Her daughters said Mrs. O'Connor discussed the futility of the treatment and believed the pain her friend was facing was not worth it.
The New York State Court of Appeals ruled that Mrs. O'Connor's statements to her daughters were not specific enough and were merely general reactions to the unsettling topic of death "no different than those that many of us might make."
The O'Connor standard currently determines end-of-life decision-making in New York State. Hospitals interpret it to mean that if a patient has a living will, then life-sustaining treatment can be withdrawn. If a patient has a health-care proxy -- an option the legislature created two years ago allowing a patient to designate a specific member of the family to make all decisions on the patient's behalf -- then hospitals are required, with some exceptions, to follow the instructions of that proxy.
If, however, the patient has signed no directive in advance -- and studies find that 85 percent of patients do not -- hospitals must assume a patient wanted life support continued unless the family can prove otherwise.
But Judge Wachtler, author of the O'Connor opinion, said in an interview that applying the O'Connor standard to a comatose patient is not appropriate. The decision, he said, referred specifically to a patient who was conscious but who could not care for herself in any way. "Our decisions should not be extrapolated and applied to situations that were not before us," he said. "We're not responsible for how they read our cases."
But some legal experts say Judge Wachtler's disclaimer is too simple. Individual court decisions are always looked to for general guidance, they say, particularly in areas where legislators have not specifically acted.
"Judges, when they write these decisions, know perfectly well the subsequent process of construal," said Susan M. Wolf, an associate for law at the Hastings Center for Biomedical Ethics in Briarcliff Manor, N.Y.
In October 1988, while Judge Wachtler was writing the O'Connor decision, his 86-year-old mother suffered a stroke.
In an interview, the Judge described his mother's ailment, acknowledging that it did affect his view of the O'Connor case. "She could barely speak or move," he said, "but she was eventually brought back to the point where she could say a few words. She said to me, 'Let me go.' I wasn't about to listen to that because there was some chance that she might recover."
Mrs. Wachtler, now 90, works behind the counter in another son's jewelry store.
Whatever the background or intent of the O'Connor decision, the result is that nearly all hospitals in the state believe that life support cannot be withdrawn if the family cannot provide "clear and convincing evidence" that that is what the patient would have wanted.
The standard of proof is high. At New York Hospital two years ago, for instance, an elderly man refused to sign a consent form for a feeding tube for his 94-year-old wife, who lay paralyzed after two severe strokes. The couple had been married for 70 years, and the husband said his wife often told him "when it's my time, I'm ready to go," said Susan Mascitelli, director of patient services administration at New York Hospital.
"That wasn't specific enough," Mrs. Macitelli said. "We had no choice but to get a court order for a feeding tube. The judge said he had no choice but to grant the order." Who Can Decide
In March, the Governor's Task Force on Life and the Law released draft legislation to change the law. The task force proposal lists the people who would be allowed to decide for a patient who has not left a living will or health-care proxy and who can no longer make decisions. The list ranks the surrogates, putting a spouse before grown children, followed by parents, siblings and friends. The proposed law instructs surrogates to base their decisions on what they believe the patient would have wanted. If they do not know, the proposed law says the surrogates must make a decision in the patient's best interests.
At the moment, 28 states have similar laws and virtually all the rest are considering them, said Fenella Rouse, executive director of Choice in Dying, a right-to-die advocacy and research group in Manhattan. In nearly every other state in the country, she said, there is a common-law tradition of allowing families to make these decisions and the proposed legislation is merely a codification of current practice. In New York and Missouri, however, which have a tradition of limiting surrogate decision-making, the proposed laws would reverse current practice.
Mr. Doherty sees the proposed law as his wife's only hope. She should have signed a health-care proxy, he said, authorizing him to make decisions on her behalf. "She should have -- she didn't," he said, noting that his entire family has since signed such documents.
"She didn't sign and she can't sign now," he said. "Does that mean she has to be sentenced to this?"
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Source: https://www.nytimes.com/1992/05/12/us/new-york-rule-compounds-dilemma-over-life-support.html
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