Matter of Zornow

[*1] Matter of Zornow 2011 NY Slip Op 52455(U) Decided on December 13, 2011 Supreme Court, Monroe County Polito, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2011
Supreme Court, Monroe County

In the Matter of Carole Zornow as, Petitioner pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of Joan M. Zornow, An Alleged Incapacitated Person.



10/7263

William P. Polito, J.

Proceeding

Catholic Family Center, a co-guardian of Joan M. Zornow, an incapacitated person, seeks clarification of the court's December 23, 2010 order and decision (In the Matter of Carole Zornow, 31 Misc 3rd 450, (Sup. Ct., Monroe County, 2010)).

Notice

All interested persons were notified of the in-court meeting/hearing date. The incapacitated person (IP), Joan M. Zornow, was represented by Mental Hygiene attorney, Kevin O'Connell, Highland Hospital by Attorney Miles Zatkowsky and Dr. Roger Oskvig, M.D. and Catholic Family Center, the co-guardian, by Attorney David Kaiser and attorney Jennifer Karr, Carole Zornow, co-guardian and daughter of IP. The other children were notified, and advised of the court proceeding through their former attorney, who advised the court that they chose not to appear or participate in the decision.

Issue[*2]

Catholic Family Center asks whether medically assisted nutrition and hydration would be obligatory if it was determined the next day that, based on Mrs. Zornow's changed medical condition, no doctor would find it medically appropriate to insert a feeding tube.

Decision

Since the issue sought for clarification was premature, the court determined to await the next day outcome to see if that possible situation occurred. In anticipation, the hearing was scheduled for the following Tuesday in the event immediate action was necessary. The court was advised that the feared possibility did not occur, and the procedure proceeded as planned without incident.

Need for Further Clarification

Nevertheless, there was a great deal of misunderstanding of the concepts applicable, and medical and theological confusion, both unintentional and intentional, which were expressed or advocated at the hearing, necessitating the court to address those concerns for future assistance.

Accordingly, each guardian is to presently provide a written report as to Mrs. Zornow's current status and medical condition after installation of the feeding tube.

History

The requested meeting of co-guardian, Catholic Family Center, was held on Wednesday, October 12, 2011. The transcription of the in-court meeting/hearing and the documents submitted are attached to this supplemental decision.

A decision to insert a feeding tube had been agreed to by the guardians prior to this meeting date, and was to be conducted the next day, notwithstanding that four of the six children, and apparently the hospital committee sought declination of food and water with the moral advice of Marvin Mich, an ex priest with a Catholic theological background, who advised that such denial of nutrition and hydration under Mrs. Zornow's current medical condition was morally allowable. Mr. Mitch was unable to submit an affidavit setting forth the basis of his opinion, and deferred to another person, Patricia Scholles, a PHD with theological background and President of St. Bernard's School of Theology and Ministry, who submitted the same. (Ex. 4).

However, the guardians, nevertheless, had determined that their decision to [*3]administer food and water under the medical conditions existing was in accordance with the court's December 23, 2010 decision. That order and decision determined that the Catholic patient's religious principles regarding nutrition and hydration were to be applied. The court previously found that the applicable Catholic principles are that Catholics, with "advanced Alzheimer's disease" not in a terminal condition where death

is not imminent, are obligated to receive nutrition and hydration even though it must be medically administered, (Matter of Zornow, 458-464, which explicitly identifies Advanced Alzheimer's at 461), provided the few exceptions are not applicable. Those few exceptions stated are where the medically assisted nutrition and hydration will not accomplish its purpose of providing nutrition and hydration to the patient, as well as the rare occurrences where the continued use of the feeding tube "may be excessively burdensome for the patient or may cause significant physical discomfort". (Id. 462-464).

Guardians Correct

The guardians were correct in their decision to proceed with medically assisted nutrition. (Transcript {T} pg 25) The artificial administration of a gastric (stomach) feeding tube will accomplish the purpose of providing food and nutrition to the patient, the failure of which will directly cause her death by starvation and dehydration, and not by her underlying medical condition. The tube can be placed without undue pain with the use of anesthesia. (T pg 31). The Catholic Family Center mistakenly assumed that the denial by two doctors in favor of a more accurate procedure in the placement of the tube into the stomach called "interventional radiology", which those doctors did not perform, amounted to a denial of the feeding tube because of her medical condition, rather than, more accurately, a determination of whether she was "medically appropriate and stable for the procedure". (T. pg 26-27, 29-31, 35-36).

A nasal gastric tube (administered through the nose) was also a temporary viable option for providing food without medical difficulty as shown by its proposed use

(although not for food) for barium delivery to the stomach to make it more visible for observation by the radiologist in accurately placing the gastric stomach tube. (T. pg 37).

The court clarifies that the additional exception allowing denial is not the difficulty in inserting the tube as implied by the Catholic Family Center's concerns, but, rather, the insertion and continued use in the rare situation where the administration of food and water results in or will result in a subsequent condition, which is excessively burdensome, or causes significant physical discomfort. None of those situations existed here.

Other clarifications

Mrs. Zornow had requested food and water[*4]

The court previously determined that, although mentally ill with Alzheimer's, Mrs. Zornow was sufficiently competent to make that health care decision for herself and was so understood by the nursing home administration at that time. (See note attached to Ex. 5 by E. Stock, RN Administrator; Rivers v. Katz, 67 NY2d 485, 534 esp. footnote 8, (1986)). In addition, the court also determined that the patient did not request removal of artificially administered food and water by the highest legal standard required of "clear and convincing" evidence, and, therefore, by case law medically assisted food and water is required to be administered. (In Matter of Mary O'Connor, 72 NY2d 517, (1988)).

A doctor's report dated January 3, 2002 was produced by the hospital committee at their prior joint meeting to apparently support its position to deny food and water, which document was not determinative or relevant since it did not declare Mrs. Zornow unable to make a health care decision, and was not submitted at the hearing on that issue. Most importantly, it was not relevant under any proper analysis. For even if Mrs. Zornow was not competent to make such a decision, there is no reciprocal legal requirement that the patient must prove by clear and convincing evidence or by a lesser standard that she wanted food and water or else she may then be deprived of the same. Such a position is contrary to the law. The cited case of O'Connor is still valid law, and has not been

changed by the Family Health Care Decisions Act. Accordingly, whether acting under her directions, which is consistent with her religious belief principles, or the common law of Eichner and O'Connor that ordinary treatment must be applied if not "clearly and convincingly indicated otherwise by the patient when competent, or by the Family Health Care Decisions Act which mandates the application of a person's religious beliefs, medically provided food and water must be administered.

However, the difficult task for the guardians is to determine under Catholic principles when her medical conditions changes, such that the treatment is extra-ordinary rather than ordinary. Extra-ordinary treatment may be denied to avoid excess or needless pain to the patient in allowing her to die a natural death without mercy killing, euthanasia, or doctor/surrogate assisted suicide. The important distinction is that the underlying medical condition is causing the natural death. The gravity of the failure to recognize and/or apply that distinction between caring and killing is for Catholics, Catholic surrogates, and society an extremely serious one. Pope John Paul II stated:

"For it is a question of the violation of the divine law, an offense

against the dignity of the human person, a crime against life, and an

attack on humanity." (Matter of Zornow, supra, pg 475). ... "such an act is

always a serious violation of the law of God, since it is the deliberate

and morally unacceptable killing of a human person." (Id at 476). [*5]

Mrs. Zornow's systems were not shutting down

Ms. Karr of Catholic Family Center stated that her understanding was that Mrs. Zornow was not taking food orally "because the Alzheimer's has shut down her

swallowing ability " which she agreed happens in persons with Alzheimer's condition. (T pg17, 18).

However, Mr. Zatkowsky, attorney for the hospital, stated that "her (Mrs. Zornow's) body is shutting down, organs are shutting down, her body won't take the food (orally), and she may only live days, weeks, months, or six months." (T pg 17-21). Since death is not imminent, he is clearly advocating application of the broader standards of the Family Health Care Decisions Act for termination of food and water, and not the actual medical conditions applicable to Mrs. Zornow consistent with her Catholic Faith principles, as aforesaid. Catholics cannot intentionally cause death by refusing ordinary treatment, including food and water, based on the quality of life as advocated here by the hospital's attorney.

Rather, Doctor Oskgiv indicated that Mrs. Zornow's system could accept, receive, and benefit from the administration of medically assisted nutrition and hydration, and such administration of food through a feeding tube could be accomplished painlessly subject to the testing to be conducted the next day. The anemia, which caused the admission to the hospital, due to a previously undetected broken leg was corrected with blood transfusions, and, presumably, the broken leg has been or is being treated.

Apparently the guardians agreed at that time that the blood transfusions were ordinary treatment for the anemia, and consented thereto. In Matter of Storar, 52 NY2d 363, (1981)the Court of Appeals at common law overrode the decision of the mother of a terminally ill 52 year profoundly retarded man and required the administration of blood transfusions as ordinary treatment, "like food." Without the transfusions he would have bled to death by a treatable cause unrelated to the cancer. With the transfusions, the court stated "he was essentially the same as he was before except of course he had a fatal

illness which would ultimately claim his life".

Ordinary versus extra ordinary

Although the doctor did not state or identify any other condition, he did advise that Mrs. Zornow's condition was deteriorating as expected from the advancement of the Alheimers, and that other secondary life threatening conditions would likely occur.

Other than the feeding tube, which is generally ordinary treatment with specific [*6]medical/Catholic moral exceptions not found here at this point, the court understood, as Dr. Oskgiv advised, that there may occur in the future secondary life threatening conditions. Those changed medical conditions will require a judgment by the guardians of whether the corrective treatment is "ordinary" versus "extraordinary". Those terms used in Catholic theology, differ greatly from the same words used for medical purposes. It was primarily here, in arriving at that moral evaluation that the court required consultation with "a priest or someone well trained in Catholic moral theology." (Matter of Zornow, supra, pg 454). Catholics are morally obligated to accept ordinary treatment, but, although not required, may refuse extra ordinary treatment, even if the underlying secondary condition causes death. Accordingly, the guardians may deny or withhold extra ordinary treatment. (See In the Matter of Eichner, 52 NY 363 (1981) where Brother Fox was disconnected from a respirator; In Matter of Zornow supra pgs 469,470,479; The 1980 Declaration on Euthanasia by Congregation for Doctrine of Faith explains the distinction between proportional and disproportional means, and between therapeutic treatments and the normal case due to the sick person.). However, even extra-ordinary treatment is not morally obligated to be denied, and may be administered to incompetent persons in a vegetative or Alzheimer's' state in some situations, such as, where the person is seeking the last sacraments or a family member wishes to see the loved one for the last time. Further, the moral determination and judgment is that of the Guardian(s) in accordance with Catholic principles, and not the doctor.

Improper Catholic Theological Opinion

Since the administration of the feeding tube is generally considered ordinary treatment except for a few well defined medical conditions the court anticipated the primary need for the theological opinion in the progression and occurrences of secondary conditions. However, the submitted moral opinion in the withdrawal or denial of food and water by Patricia Scholles (ex. 4) is not consistent with the moral standards of the Catholic Church's authoritative magisterium position as applied to Mrs. Zornow's existing medical conditions for the reasons aforesaid, and as properly determined here by the co-guardians. (See attached submission of co-guardian Carole Zornow, Court Exhibits 1-3). Rather, the moral opinions submitted are consistent with the dissenting Father Curran and others (See the Matter of Zornow, supra at 465-466, Confusion of Authoritative Catholic Religious Beliefs esp.par. 2). Patricia Scholles' statement that medically assisted food and water is not morally obligatory for Catholics, unless it "brings her (the patient) to a condition better than she enjoyed prior to the treatment" (underlining added) finds no basis in the Magisterium's declaration or commentary, or the United States Congregation of Catholic Bishop's commentary or even in the Directive No.58 of The Ethical and Religious Directives for Catholic Health Services regarding food and water, cited and contained in her submission (attached to ex 4), and is clearly contradictory thereto. Her [*7]aforesaid position was even more extreme than the secular standard stated in the Storar common law case cited and quoted above for denying blood transfusions.

Accordingly, the guardians are directed to consult in the future with theologians or priests, who are more traditional, knowledgeable, and adhere to the Magisterium's authoritative standard, other than the two herein.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. Attorney for the Catholic Family Center is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED.

Dated this 13th day of December, 2011 at Rochester, New York.

______________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT