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The Eichner/Storar Decision: A Year's Perspective

Published online by Cambridge University Press:  27 April 2021

Lee J. Dunn Jr.
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Extract

On March 31,1981, the New York Gurt of Appeals handed down its decision in the consolidated cases of Brother Joseph Fox and John Storar. The Eichner case was generally well known, having excited considerable national publicity both before and after the Appellate Division of the Supreme Court of New York handed down its opinion on March 17,1980. The Storar case,) conversely, was not as well known and was consolidated with the Eichner case, in the words of the Court of Appeals, because future similar cases would arise. As will be discussed more fully in this article, the consolidation of these two markedly dissimilar cases not only has created confusion, but also has served to obscure the position taken by the court of Appeals relative to other similar cases both in New York and other jurisdictions.

Brother Joseph Fox was an 83 year old member of a Catholic religious order who enjoyed good health until he suffered cardiac arrest during the performance of a hernia operation. As a result of the cardiac arrest, he became anoxic, suffered permanent brain damage, and became respirator-dependent.

Type
Article
Information
Law, Medicine and Healthcare , Volume 10 , Issue 3 , June 1982 , pp. 117 - 141
Copyright
Copyright © American Society of Law, Medicine and Ethics 1982

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References

In re Storar, 438 N.Y.S.2d 266 (N.Y. 1981) (consolidating Eichner v. Dillon).Google Scholar
Eichner v. Dillon, 426 N.Y.S.2d 517 (App. Div. 1980).Google Scholar
In re Storar, 434 N.Y.S.2d 46 (App. Div. 1980).Google Scholar
See N.Y. Mental Hyg. Law, §§78.01, et seq. (McKinney 1981).Google Scholar
The court specifically declined to base its holding on the constitutional right of privacy. In re Eichner, 102 Misc.2d 184, 199 (N.Y. Sup. Ct. Spec. Term 1979).Google Scholar
Id. at 213.Google Scholar
Id. at 211.Google Scholar
Compare, e.g., In re Quinlan, 355 A.2d 647 (N.J. 1976); Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct. App. 1978); In re Dinnerstein, 380 N.E.2d 134 (Mass. App. 1978).Google Scholar
The court found Father Eichner to be the “conduit” of Brother Fox and rejected the “fiction” necessitated by the “best interest” test of Quinlan and the “substituted judgment” test of Saikewicz, Eichner, supra note 5, at 210.Google Scholar
Eichner, , supra note 2, at 540.Google Scholar
Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417, 429 (Mass. 1977).Google Scholar
Storar, , supra note 1, at 270.Google Scholar
Eichner, , supra note 2, at 550.Google Scholar
Storar, , supra note 1, at 271–72.Google Scholar
Storar, , supra note 3, at 47.Google Scholar
Storar, , supra note 1, at 272.Google Scholar
Storar, , supra note 1, at 274. The District Attorney's other arguments—(1) that the patient's right to decline medical treatment is outweighed when the treatment is necessary to preserve life, (2) that any such right is personal and may not be exercised by another, and (3) that any such decision constitutes homocide—were also rejected by the court. See id. at 273–74.Google Scholar
Id. at 275.Google Scholar
Id. at 274.Google Scholar
Id. at 275. The other methods of treatment—surgical removal of the bladder, chemotherapy, and therapeutic radiology—had been dismissed as potential treatment modalities by the patient's attending physician, even though (in this writer's opinion) the possibility of surgical intervention, which would have removed the source of the bleeding, was not given sufficient serious consideration. Dr. Lee, the patient's attending physician, decided against a cystectomy because of its alleged high operative morbidity rate and the presumed lack of cooperation from the patient postoperatively. Dr. Lee was the only one of six physicians to testify at trial that the transfusions constituted “ordinary care.”Google Scholar
Id. at 275–76.Google Scholar
See Lane v. Candura, 376 N.E.2d 1232 (Mass. App. 1978); Satz v. Perlmutter, supra note 8; and In re Quackenbush, 383 A.2d 785 (N.J. 1978). Clearly, the court's problem with Storar was allowing a life-and-death decision to be made for a patient who had always been unable to express himself in the manner of Brother Fox. The court was not prepared to go as far as the Saikewicz court in creating legal fictions and imponderable criteria to provide questionable legal protection for the patient, but was also unwilling to allow terminal treatment decisions to be made by someone other than the patient.Google Scholar
See Storar, , supra note 1, at 279 (dissenting opinion of Justice Jones) (“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”). The majority opinion touched upon the standing issue in a footnote. The court recognized that generally a medical facility may not interfere with the treatment recommended by a patient's personal physician but asserted that in Storar, the medical center did have standing. It based its decision on the fact that Storar did not have a personal physician and received medical care from various physicians at the center, and that the medical center had a legitimate concern for potential liability stemming from its role as the treating physician. Storar, supra note 1, at 271, n.3.Google Scholar
Although the consolidated cases were both factually and legally distinguishable, the decision in the two cases is formally cited as In re Storar. This, at least arguably, places undue influence on the Storar portion of the opinion. This implied emphasis on the Storar portion of the opinion has already borne tainted fruit. In People v. Robbins, 83 A.D.2d 271 (4th Dept. 1981) the decedent's husband and minister were indicted for criminally negligent homicide for “counselling, urging, suggesting, and directing” Pamela Robbins from taking life-sustaining medication on religious grounds. The court, in dismissing the indictments, held that “to impose criminal liability for failure to summon medical aid for a competent adult … who has made a rational decision to eschew medical assistance … would be in direct conflict with the related rule that a competent adult has a right to determine whether or not to undergo medical treatment. 83 A.D.2d at 275 citing Storar, supra note 1, at 266 (emphasis added). Eichner clearly stands for that proposition, but Storar does not. Notwithstanding the fact that both Mr. Storar and Brother Fox were adjudicated incompetents at the time that the legality of the treatment issues underwent judical review, Brother Fox had at one time in his life expressed his desire not to have his life maintained by artificial means, while Mr. Storar had never been capable of so doing. Thus, if Storar and Eichner are viewed as one, it can reasonably be argued that only those individuals who have expressed their desires to eschew “extraordinary care” can have their wishes followed. Therefore, for the overwhelming majority of people who either have not or cannot express their wishes, that portion of the Court of Appeals opinion dealing solely with Mr. Storar (although specifically limited to adjudicated incompetents, see Storar, supra note 1, at 275–76) would appear already to have been interpreted to prohibit treatment decisions which could result in death being made by anyone other than the patient, including the patient's guardian or physician, and yet the court provides absolutely no guidelines or advice as to how or by whom those decisions can be made.Google Scholar
The statements that the patient “had more energy and was able to resume most of his usual, limited activities” after being transfused, and that an “extension of life would attend the continuation of transfusions” are unsupported in the record, a point that was not lost on Justice Jones. Storar, , supra note 1, at 280 (Jones, J., dissenting).Google Scholar
See Custody of a Minor, 379 N.E.2d 1053 (Mass. 1978); In re Benjamin C., Nos. J91419 and P645318 (Super. Ct., Los Angeles Cty., Cal. Feb. 15, 1979); In re Piotiowicz, No. 1948 (P. Ct., Essex Cty., Mass. Dec. 23, 1977). Moreover, in her brief, the guardian ad litem also cited New York authority which was consistent with the cases cited above, but which were apparently ignored by the majority.Google Scholar
In re Spring, 405 N.E.2d 115 (Mass. 1980).Google Scholar
See Eichner, , supra note 2, at 546–51.Google Scholar
Storar, , supra note 1, at 276.Google Scholar
See Severns v. Wilmington Medical Center, 421 A.2d 1334 (Del. 1980) (appears to require evidentiary hearing prior to withdrawal of care from terminal patient).Google Scholar