New York Activists Relieved By Ruling In Lawsuit Over Living Will

NEW YORK — A new appellate court ruling puts some teeth into New Yorkers' living wills, health care proxies and ability to ensure their explicit wishes are respected at the end of their lives.

The Appellate Division of the State Supreme Court overturned a lower court's decision that a dying Westchester County man did not suffer any damages by being kept alive for 30 days at Montefiore New Rochelle Hospital when doctors refused to follow his living will or his wife's legal requests as his health care proxy.

The reversal, issued March 31, marks the first time doctors and a hospital are being held accountable for ignoring or violating the documents that many people fill out and depend on — and that's critical for ensuring that a person’s wishes are respected, said officials at Compassion & Choices, a national nonprofit dedicated to expanding and empowering options at the end of life such as medical aid in dying.

The case itself involved Dr. Gerald Greenberg, who completed an advance directive and health care proxy form in 2011. In his living will, Greenberg specified that in the event of irreversible brain damage, he did not want to be provided medical treatment beyond that which would ensure his comfort. He named his wife, Elaine Greenberg, as his proxy, and authorized her to make all medical decisions on his behalf in the event he was incapacitated.

Then Greenberg developed advanced Alzheimer’s and no longer had the ability to make his own medical decisions.

In November 2016, he was transported to Montefiore Hospital in New Rochelle with severe sepsis. The hospital was provided with copies of Greenberg’s living will and health care proxy form. Elaine Greenberg, acting as her husband’s proxy, instructed the hospital to only provide comfort care and no other treatment.

However, the hospital proceeded to treat the sepsis, conducting tests including brain CT, chest X-ray and ECG, and administering intravenous antibiotics.

Greenberg lived an additional 30 days and, during that time, his widow said, he was in immense pain instead of dying peacefully within a day or two.

Afterward, the family filed a malpractice lawsuit against the hospital for the unwanted medical treatment Greenberg received.

When the lower court dismissed the case, the Greenbergs appealed, and Compassion & Choices submitted a friend-of-the-court brief on behalf of Stacey Gibson, a Garrison, New York, resident who has executed her own advance care planning documents and wants those documents enforced if or when necessary; and of Jennifer Friedlin, a Brooklyn resident who was a designated proxy for her father with advanced Alzheimer’s and whose advance care planning documents were disregarded by hospital staff at the end of his life.

“Put simply, if people can sue for damages when healthcare providers and hospitals ignore do-not-resuscitate orders and living wills, those providers will be far more likely to follow them," the nonprofit said in the amicus brief.

The appeals court ruled that the Greenberg family does have a case.

"A competent adult’s right to refuse medical treatment, even where refusal may result in death, is well established by case law," the appeals court said. It found that the plaintiff had grounds "for proceeding with the medical malpractice claim set forth in the complaint on the theory that the failure to follow decedent’s directives was a departure from the standard of care."

The court’s decision was a relief, Friedlin said. “At the end of my father’s life, all I wanted was to reflect peacefully on his legacy and the love we had for one another. Instead, I spent his final days fighting with his doctors to respect the decisions he carefully documented in his living will. The court’s decision will help ensure other families will not go through what mine did.”

Gibson, 70, has been involved with Compassion & Choices since the death of her husband, Sid, in 2014.

"He died at 68 of a progressive neurological disease which spanned the course of 8 years. His life was glorious. His death was not," she told Patch. "I promised him I would ensure that no one in New York has to suffer the way he did without an option over their end-of-life choices. I have been advocating for medical aid in dying since his passing."

It's personal on another level as well. Gibson was diagnosed with DCIS breast cancer in 1998 and went through surgery and radiation; was diagnosed in 2019 with early-stage lung cancer that was treated with surgery; and in February was diagnosed with small lymphocytic lymphoma that currently is asymptomatic.

"So luckily I am being watched and will be treated if and when symptoms occur," she said Tuesday. "I have extraordinary respect for doctors who have detected my cancers early, treated me, and continue to follow my health.

"Yet doctors do not know the totality of me as a human being — they only know my medical conditions. That is why I have taken the time, based on my experiences and values, to put together my advance care planning documents," she said. "The court’s decision reinforces a doctor’s obligation to respect the decisions I have made in those documents, and if they do not, ensures they will be held liable for the harm they cause."

Gibson has created her living will and directives for treatment and named her health care proxies.

"My stepdaughter is my primary agent, and my grandson is my secondary," she said. "They have read my documents, and have agreed to carry out my wishes."

Crafting advance directives is a personal choice, she said. "Everyone needs to do what is right for them according to their own personal value systems."

She acknowledges it isn't easy for people to bring up the topic with their families.

"This is a very difficult subject and the receiver needs to be ready to accept the information, process it, and act on it, if they are being asked to do something," she said. "That may take some time and that’s OK. Perhaps introducing the subject gradually over time may be the best approach."

She said she believes it's a gift for people to be able to think about what is important to them when they are not in crisis, have those important conversations, document the decisions — and their right to have doctors and hospitals honor them.