Supreme Court, Broome County, July 23, 2021

Letitia James, Attorney General, Binghamton (Aaron Marcus of counsel), for petitioner.

Mental Hygiene Legal Service, Third Department, Binghamton (A. Laura Bevacqua of counsel), for respondent.

On December 24, 2020, Renee M. Gotthardt, deputy director of operations at Greater Binghamton Health Center (GBHC), filed a petition with an order to show cause seeking an order of the court approving a medical order for life-sustaining treatment (MOLST) for C.H., who was a resident of GBHC at the time the petition was filed, or alternatively, allowing the MOLST executed by United Health Services (UHS) Wilson Hospital on behalf of Mr. H while he was a patient there to transfer to and become legally operative at GBHC. The petition alleged that Mr. H was admitted to UHS Wilson Hospital from October 17, 2020, through October 23, 2020, for aspiration pneumonia and, on October 22, 2020, a MOLST was executed on his behalf. [*2]It further alleged that Mr. H subsequently returned to GBHC, and that, at the time the petition was filed, Mr. H was terminally ill, was approaching the end of his life, and lacked capacity to make health care decisions on his own behalf.

The court issued an order to show cause dated December 30, 2020, setting a hearing via Microsoft Teams for January 7, 2021, at which time Aaron Marcus, Esq., Assistant Attorney General (AG), appeared on behalf of GBHC, and Mental Hygiene Legal Service (3d Dept) (MHLS), A. Laura Bevacqua, Esq., of counsel, appeared on behalf of Mr. H.^[FN*] The court heard testimony from Dr. Lizeth Diaz, who indicated that she considered Mr. H terminally ill without any expectation of retaining capacity or an improved medical condition. She testified that the MOLST was executed by UHS while Mr. H was a patient at the hospital, and, in the best interest of Mr. H, he was established as a "do not resuscitate" patient. Many attempts {**72 Misc 3d at 1075}were made to contact Mr. H's friends or family, as Mr. H resided at GBHC for more than 20 years, and no one ever responded or visited.

Based on Dr. Diaz's testimony, the court found, on the record, that the evidence supported the implementation of the MOLST at GBHC. The court further found that it was unclear whether there was a statutory or regulatory basis to allow the court to order the implementation via transfer of the existing MOLST in the context of a placement at GBHC, a non-hospital setting. The court reserved decision, allowing each side the opportunity to brief the issue.

The AG submitted a letter summation on January 22, 2021, and MHLS submitted one on February 22, 2021. The court was informed Mr. H died on February 6, 2021, before submissions were complete. While Mr. H's death may have rendered this application moot, the court finds that the controversy presented by this petition is likely to recur, typically evades review, and raises an important question. (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 811 [2003].) Thus, the court will decide this issue even though the decision has no practical effect on these parties.

The Family Health Care Decisions Act was signed into law on March 16, 2010, and was intended to "[fill] a gap that remains in New York law" by establishing a decision-making process applicable for patients who lack decision-making capacity and advanced directives when they are placed in a nursing home or hospital. (L 2010, ch 8, § 1; Public Health Law art 29-CC.) The statute sets forth the requirements for determining incapacity; provides for the selection of a surrogate decision-maker from a priority list; empowers such surrogates to make health care decisions for patients who lack capacity and who have not otherwise appointed an agent to make health care decisions; requires the surrogate to adhere to the substituted judgment/best interests standard; and limits the circumstances in which a surrogate may authorize the withholding or withdrawal of life-sustaining treatment. Under the statute, a determination of incapacity can be made pursuant to court order, upon the appointment of a Mental Hygiene Law article 81 guardian for health care decisions or pursuant to a medical determination by a physician. (Public Health Law § 2994-c.)

Public Health Law § 2994-d (5) provides that

"[i]n addition to the standards set forth in subdivision four of this section, decisions by surrogates to{**72 Misc 3d at 1076} withhold or withdraw life-sustaining treatment . . . shall be authorized only if [*3]the following conditions are satisfied, as applicable:

"(a) (i) Treatment would be an extraordinary burden to the patient and an attending practitioner determines, with the independent concurrence of another physician, nurse practitioner or physician assistant, that, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B) the patient is permanently unconscious; or

"(ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending practitioner with the independent concurrence of another physician, nurse practitioner or physician assistant to a reasonable degree of medical certainty and in accord with accepted medical standards."

The statute further states that when

"a patient with an order to withhold or withdraw life-sustaining treatment is transferred from a mental hygiene facility to a hospital or from a hospital to a different hospital, any such order or plan shall remain effective until an attending practitioner first examines the transferred patient, whereupon an attending practitioner must either: 1. Issue appropriate orders to continue the prior order or plan . . . ; or 2. Cancel such order, if the attending practitioner determines that the order is no longer appropriate or authorized." (Public Health Law § 2994-l.)

The statute itself is silent as to the transfer of a patient's MOLST from a hospital to a mental hygiene facility, and that is the issue presently before the court. The bill jacket to the amendment of this section contains some guidance, as it states:

"existing Article 29-B of the Public Health [L]aw is amended to apply to orders not to resuscitate for residents of mental hygiene facilities. Conforming amendments are also made to certain sections of the public health law and mental hygiene law to{**72 Misc 3d at 1077} accommodate the new surrogate selection structure and orders not to resuscitate statutes." (Letter from Senate Introducer, Mar. 15, 2010, Bill Jacket, L 2010, ch 8 at 6.)

The New York State Department of Health also provides some guidance filling in the gap left by the statute. In the guidance provided on MOLST forms on its website, the Department indicates that a signed MOLST form should be "transported with patients as they travel to different health care settings" (New York State Department of Health, Medical Orders for Life-Sustaining Treatment [MOLST] [rev Dec. 2020], https://www.health.ny.gov/professionals/patients/patient_rights/molst/).

Based on the foregoing, and the testimony provided at the hearing, the court finds that had Mr. H survived, the MOLST should have traveled with him if he were transferred from GBHC back to a hospital setting.

An issue not raised in the petition but raised by MHLS at the hearing and in its summation was whether the MOLST that petitioner sought to transfer with Mr. H was properly entered in the first instance. That issue is largely a factual one specific to Mr. H, rendered moot by his passing. The court declines to address that issue. This decision pertains only to the issue of a valid MOLST transferring with a patient from a hospital setting to a psychiatric setting, which the court finds is permissible.