Guardian Removes Life Support From Terminally-Ill Patient Contrary To Wishes Of Health Care Proxy

At the time of the Court’s decision, Marie Fecoskay was an 87 year old woman who had been admitted to the hospital because of an infection. A few days after admission, Mrs. Fecoskay went into cardiac arrest, became comatose as a result of oxygen deprivation and was placed on a ventilator with feeding tube.

The matter came before the Court on application of the agent under Mrs. Fecoskay’s power of attorney, seeking a Court Order preventing the removal of life support from Mrs. Fecoskay. The agent was prompted to act when he learned that one of Mrs. Fecoskay’s  daughters discussed discontinuation of life support with Mrs. Fecoskay’s physician. To maintain the status quo, the Court entered an Order directing the hospital to do all things necessary to keep Mrs. Fecoskay alive. The Court also appointed a guardian ad litem for Mrs. Fecoskay.

Testimony was presented to the court at three hearings. Robert Solomon, M.D., Mrs. Fecoskay’s treating physician, testified that he did not know what Mrs. Fecoskay would wish to do about the continuation of life support. Peter Roytman M.D., who was involved in treating Mrs. Fecoskay at the hospital, indicated that Mrs. Fecoskay had no cognitive functions, was unresponsive to most stimuli and would not live for long without life support. Michel Gerardi, M.D., co-chair of the hospital’s bioethics committee, testified that Mrs. Fecoskay had only lower brain stem function, and that there was no reasonable possibility that she would regain any cognitive functioning.

Two of Mrs. Fecoskay’s daughters testified that they had not discussed the matter of life support or issues related to death with their mother. However, both adult children opined that their mother would not wish to remain on life support based upon her decision to terminate life support for their father when he was terminally ill.

The agent under the power of attorney also testified. He indicated that Mrs. Fecoskay signed a Durable Power of Attorney for Health Care (Proxy Directive) and an lnstruction Directive allegedly expressing her wish to be kept alive under all circumstances. However, the Instruction Directive did not comply with the statutory requirements since it lacked the signature of any witness other than the agent.

In addition, the guardian ad litem issued a report and recommendation, concluding that Mrs. Fecoskay would decide against the continuation of life support. The guardian ad litem reasoned that, as a woman who loved life and did not ever wish to talk about death, Mrs. Fecoskay would not want to have her life prolonged by artificial means.

The Court found the law as follows:

[T]he decision to withhold or continue treatment is that of the patient or his surrogate decision maker. In Re Quinlin, 70 N.J. 10 (1976); In Re Conway, 98 N.J. 321 (1985). It is the role of that surrogate to determine and effectuate what the patient would have chosen if she were able. The case law is clear that the decision to continue or terminate life support systems is not left to the court. In Matter of Jobes, 108 N.J. 394 (1987) the court held that it is not the role of the trial court to decide whether treatment should be removed from a comatose patient but rather to establish criteria that respect the right to setf determination and protect incapacitated patients.

Based upon those facts, the Court concluded that “if able to express her desires regarding the continuation of life support when to do so was almost certainly futile Mrs. Fecoskay would not chose to do so.” The Court held that the Instructive Directive and Proxy Directive were invalid because the designated representative was the sole witness and, as a result, that the invalid documents had little value. Further, the Court acknowledged that Mrs. Fecoskay expressed her thoughts about end-of-life medical treatment on but one occasion: when her husband suffered from cancer, she chose to terminate life support. As a result, the Court appointed one daughter as guardian who was authorized to approve the removal of life support from Mrs. Fecoskay. Mrs. Fecoskay has since passed away.

The Court’s written decision can be found here – Fecoskay Decision

The Order entered by the Court can be found here – Fecoskay Order