The Creation Of A Health Care Proxy Under New York Law Does Not Trigger An Agent’s Authority To Make Health Care Decisions

Rita Stein, on behalf of herself and as executrix of the estate of her deceased husband Milton Stein, filed a lawsuit in federal court against the County of Nassau, the Nassau County Police Department, and four emergency responders. Rita claimed that the emergency responders violated her and her husband’s rights under the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution and committed the state-law torts of assault and negligence when they refused to transport Milton — who was unresponsive at the time — to the hospital of Rita’s choosing and then physically prevented Rita from interfering with their provision of emergency medical care to Milton.

Milton had appointed Rita as his health care agent in 1990, pursuant to a statutory Health Care Proxy. Thus, Rita was authorized to make medical decisions on Milton’s behalf. However, defendants refused to honor Rita’s status as Milton’s health care agent, even though Rita showed them the duly executed proxy designating her as such. Defendants contended that health care proxies are not valid in a non-hospital setting. On defendants’ motion for summary judgment, the Federal District Court found that the applicability of health care proxies to non-hospital settings had not been “clearly established” at the time of the incident, and therefore qualified immunity barred Rita’s suit against the emergency responders. Rita appealed.

The United States Court of Appeals for the Second Circuit found that, under New York law, the creation of a health care proxy did not trigger an agent’s authority to make health care decisions on behalf of her principal. Instead, the Second Circuit held that authority “commence[s] upon a determination, made pursuant to [New York Public Health Law § 2983(1)], that the principal lacks capacity to make health care decisions.” N.Y. Pub. Health Law § 2981(4). That determination must be made by an attending physician in writing. Since there was no indication that such a determination had been made in this case, the emergency responders had no reason to believe that Rita had authority to act on Milton’s behalf and were entitled to qualified immunity. The Second Circuit granted summary judgment for the emergency responders on the constitutional claims; however it remanded the case to the District Court to examine the tort claims, since these claims did not necessarily involve the Health Care Proxy.

The federal district court’s opinion is annexed here – Stein v. Barthelson, Federal District Court Opinion

The federal appellate court’s opinion is annexed here – Stein v. Barthelson, 2nd Circuit Opinion

(Source: New York State Bar Association Elder Law Section E-newsletter)