Schiavo Again??

From the New York Law Journal:

In a case echoing the fight over Terri Schiavo's fate in Florida, a Queens judge has ordered that artificial nutrition and hydration be provided to a woman with end-stage dementia.

Supreme Court Justice Martin E. Ritholtz's decision in the legal battle over whether to insert a feeding tube through the wall of a woman's stomach centers on Jewish beliefs about the afterlife and an analysis of the history of New York's version of a living will, the health care proxy.

The legal action began in January, shortly after 86-year-old Lee Kahan, suffering from pneumonia, pulmonary edema and advanced Alzheimer's disease, was admitted to St. John's Episcopal Hospital in Far Rockaway. She was awake, but unable to express any preferences.

Ms. Kahan's health care agent — her daughter, Joan Simonson, appointed via a health care proxy executed in 1998 — refused to allow insertion of a percutaneous endoscopic gastrostomy tube (or PEG) into her mother's stomach to facilitate long-term hydrating and feeding, the same procedure reportedly declined by Pope John Paul II.

The hospital discharged Ms. Kahan, returning her to West Lawrence Care Center, where she continued to receive hydration and nutrition via a nasogastric tube. Such tubes are indicated for temporary use only, as prolonged use can lead to aspiration or infections, both potentially fatal.

Three weeks later, on Feb. 19, Ms. Kahan's sister, Rose Borenstein, petitioned the Queens Supreme Court to have a PEG inserted. Ms. Borenstein also sought to have Ms. Kahan's health care proxy voided and to be appointed her guardian. She asked that Ms. Simonson be precluded from "interfering with health care decisions about artificial hydration and nutrition" for Ms. Kahan.

At an emergency hearing three days later, Ms. Borenstein and Ms. Simonson presented their cases.

Ms. Borenstein testified that her sister had become increasingly traditional in her observance of Judaism following her retirement as a legal secretary in 1996. Because of Ms. Kahan's "commitment to traditional or religious judaism," her sister said, "she would, if she could express her wishes, opt for the optimal life-sustaining treatment so she could live as long as possible, even though prolonged life could be a burden."

Ms. Kahan's daughter, Ms. Simonson, said that her "whole concern is that [her mother] not be caused any suffering and that she be able to live out the rest of her natural life . . . as comfortably as possible."

This aspect of the dispute was resolved by an agreement: Later that afternoon, after two doctors testified as to the necessity of the PEG, Ms. Simonson withdrew her objection and consented to allow it.

Two issues, however, remained: whether the court should enjoin Ms. Simonson from serving as her mother's health care agent and whether, in the alternative, the court should preclude her from making decisions regarding her mother's nutrition and hydration.

In deciding to allow Ms. Simonson to remain as health care agent but not to make decisions regarding Ms. Kahan's nutrition and hydration, Justice Ritholtz, in Borenstein v. Simonson, 4120/2005, laid out the origins of New York's health care proxy law.

The decision will be published Tuesday.

The state Legislature passed the Health Care Agents and Proxies Law in July 1990, six days after the U.S. Supreme Court concluded in Cruzan v. Missouri Department of Health, 497 US 261, that failures to honor a patient's desires might be avoided if states considered patients' appointments of health care proxies.

The New York law recognized society's split regarding artificial hydration and nutrition — that some feel it is another form of treatment, comparable to, say, artificial ventilation, while others believe it to be the "act of providing sustenance to a living person." To withdraw nutrition and hydration, the latter group believes, is no different than withdrawing air.

The new law generally favored the former group, by requiring health care proxies to explicitly state a patient's preferences regarding artificial nutrition and hydration. Otherwise, the agent does not have the authority to decide.

Because Ms. Kahan did not clearly state her preferences, Ms. Borenstein argued, Ms. Simonson exceeded the scope of her responsibilities and should be discharged as agent.

Justice Ritholtz agreed that Ms. Simonson overstepped her authority by preventing the insertion of the PEG. However, he added, her attempt to do so did not constitute grounds for her removal as agent.

Split in Jewish Law

To invalidate the health care proxy, the petitioners had to demonstrate that Ms. Simonson's actions constituted "bad faith," as set forth in Public Health Law §2992.

That question required an understanding of the Orthodox Jewish view of the treatment of the critically ill, according to Justice Ritholtz.

The judge cited numerous conflicting interpretations of the Halacha, or Jewish law.

"From a Halachic perspective, a persistent vegetative state and Alzheimer's disease are not terminal conditions, per se. . . . Patients with these illnesses deserve the same full range of treatment that is made available to any other patient," he wrote. "On the other hand, Halacha certainly takes pain and suffering into account." Because of the split in Halachic authority, Justice Ritholtz concluded that Ms. Simonson could not be deemed to have acted in bad faith.

Therefore, "the revocation of the Health Care Proxy held by [Ms.] Simonson is unwarranted," he held. However, Justice Ritholtz added that because the proxy did not specifically grant her such authority, Ms. Simonson's proxy did not extend to issues regarding artificial nutrition and hydration. Therefore, quoting from a different clause of her health care proxy, he ruled, "Lee Kahan, though incompetent, suffering from end-stage dementia, is entitled, in her own words, to 'life-sustaining treatment.'"

Public Courtroom

He concluded the decision by citing In Re Schiavo, 851 So. 2d 182, a decision by the Court of Appeals for the Second District of Florida: "It may be unfortunate that when families cannot agree, the best forum we can offer for this private personal decision is a public courtroom and the best decision-maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life." Since the PEG was inserted six weeks ago, Ms. Kahan's condition has improved, according to her sister's attorney, Samuel A. Abady. "I'm told that she's much more comfortable and has gained weight," he said. "She seems, according to her siblings, to be happier."

- Art Caplan