BAEC Bulletin May/June 2022

BAEC Bulletin | May/June 2022 | 25

Defendants, Hospital and attending physician, moved to dismiss for failure to state a cause of action. Their sole argument was that Plaintiff’s claim is one based upon “wrongful life”, which theory is disallowed under Cronin v. Jamaica Hosp. Med. Ctr , 60 AD3d 803. Supreme Court dismissed the complaint, and Plaintiff appealed. In a unanimous signed opinion, the First Department reversed, and denied the motion for Summary Judgment. It held that the “wrongful life” cases were inapplicable to this case. In this case the Plaintiff was seeking damages for medical malpractice which resulted in conscious pain and suffering. Here, the relevant documents executed by a competent adult refused certain life-sustaining treatments under certain conditions. There was a medical determination that those conditions were present. Therefore, the “wrongful life” cases do not bar Plaintiff from proceeding with a medical malpractice claim on the theory that the failure to follow decedent’s directives was a departure from the standard of care. •

Estate of Greenberg v. Montefiore New Rochelle Hospital, 2022 NY Slip Op. 02194 (1st Dept., 2022) We usually stick to cases in the Fourth Judicial Department, but we found this case so interesting that we had to share it. This case deals with the enforceability of end-of-life documents refusing care. The Plaintiff was the wife of the decedent. Decedent had a Health Care Proxy and Living Will, both of which contained end of life provisions refusing life sustaining treatments including cardiac resuscitation, mechanical respiration, tube feeding or antibiotics. The decedent had suffered from Alzheimer’s Disease. He as unable to communicate in any meaningful manner, and could not recognize his wife and children. He was found lying on the floor at his nursing home, and was taken to Montefiore New Rochelle Hospital. There his son, acting under the Health Care Proxy, executed a Medical Order for Life- Sustaining Treatment (MOLST) that provided the decedent was to receive comfort measures only, and not to receive intravenous fluids or antibiotics. The first physician who examined decedent determined that decedent was suffering from sepsis. The physician noted in the chart, No Tube Feeds; No antibiotics; No IV Fluids. Shortly thereafter, the attending physician, a different physician, examined decedent and ordered intravenous antibiotics, multiple tests, and administration of other medications that were not necessary to alleviate pain. The decedent lived another 30 days before passing away. Plaintiff sued for damages for medical malpractice, alleging that decedent endured pain and suffering for approximately 30 days until he died. Plaintiff claimed that the defendants had departed from the standard of care by failing to abide by decedent’s wishes as expressed in his Health Care Proxy, Living Will and the directives of his health care agents made orally and in the MOLST. “The new [actuarial/life expectancy] tables reflect a longer life expectancy.”