James E. Reid Selected for Admission to Knights of the Bar

2007

Knights of the Bar is an elite membership of the very best lawyers in the profession. Membership is by invitation only, based on recommendation. Attorneys are selected after a careful review of their leadership, excellence, and achievement in the practice of law. Selection criteria are rigorous, and fewer than three percent of all attorneys in practice will qualify.

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If you or a loved one has been injured because of someone else’s negligence, call on the New York personal injury lawyers of Greene & Reid. Call us toll free at (800) 886-9665 or simply complete a free online consultation form, and one of our attorneys will contact you to discuss your accident and answer your questions, free of charge. Greene & Reid has successfully advocated for clients in CortlandSyracuse, and Watertown.

Our New York injury lawyers handle cases in the areas of auto accidentbirth injuryboating accidentbrain injuryconstruction accidentconsumer frauddrug injuriesdog bites,insurance disputesmotorcycle accidentnursing home abuseslip and fall accident, andwrongful death.

Partners Named to American Board of Trial Lawyers

Personal Injury Lawyers serving Syracuse & Watertown, New York

SYRACUSE, NEW YORK

JANUARY 7, 2005

Partners Arthur M. Greene and James E. Reid were recently selected for membership in the newly founded chapter of the American Board of Trial Lawyers.

The new chapter, in Syracuse, New York, is comprised of those members who are deemed by the National Board of Directors of ABOTA to have outstanding experience in the field of trial advocacy and adhere to the highest standards of ethics.

Both Art and Jim were honored and flattered that they would be selected for membership in this prestigious organization.

» Click for Free Consultation

If you or a loved one has been injured because of someone else’s negligence, call on the New York personal injury lawyers of Greene & Reid. Call us toll free at (800) 886-9665 or simply complete a free online consultation form, and one of our attorneys will contact you to discuss your accident and answer your questions, free of charge. Greene & Reid has successfully advocated for clients in CortlandSyracuse, and Watertown.

Our New York injury lawyers handle cases in the areas of auto accidentbirth injuryboating accidentbrain injuryconstruction accidentconsumer frauddrug injuriesdog bites,insurance disputesmotorcycle accidentnursing home abuseslip and fall accident, andwrongful death.

New York Injury Attorney

James E. Reid Involved in First Motor Vehicle “Black Box” Case

SYRACUSE, N.Y., July 14, 2004 – Greene & Reid, LLP partner, James E. Reid, acting in his capacity as an Assistant District Attorney in Wayne County, New York, was involved in the first reported case of utilizing a motor vehicle’s sensing diagnostic module (SDM), referred to as the “Black Box”, in the prosecution of an individual involved in a vehicular fatality in New York State.

The issues presented by the case involved retrieval of the data stored in the defendant’s vehicle sensing diagnostic module, and whether such retrieval was in compliance with the United States and New York State Constitutions, and whether and when such evidence may be admitted during the prosecution’s case.

In agreeing with the prosecution’s argument, set forth in the affirmation of Mr. Reid, the Court determined that such a download is lawful and proper, and data retrieved thereby could be introduced as evidence under the Frey standard of admissibility. Utilizing this information, the defendant driver was convicted.

A copy of this decision and the Reid affirmation are available by clicking here.

» Click for a FREE Consultation

If you or a loved one has been injured because of someone else’s negligence, call on the New York personal injury lawyers of Greene & Reid. Call us toll free at (800) 886-9665 or simply complete a free online consultation form, and one of our attorneys will contact you to discuss your accident and answer your questions, free of charge. Greene & Reid has successfully advocated for clients in CortlandSyracuse, and Watertown.

Our New York injury lawyers handle cases in the areas of auto accidentbirth injuryboating accidentbrain injuryconstruction accidentconsumer frauddrug injuriesdog bites,insurance disputesmotorcycle accidentnursing home abuseslip and fall accident, andwrongful death.

Advocate Forum Opening

Personal Injury Lawyers serving Syracuse & Watertown, New York

Arthur M. Greene and James E. Reid Announce Opening of Advocate’s Forum, Inc., for Mediation and Arbitration Services
SYRACUSE, NEW YORK
MARCH 15, 2003

Attorneys Arthur M. Greene and James E. Reid announced the creation and opening of Advocate’s Forum, Inc., which provides Alternative Dispute Resolution (ADR) services in the Syracuse and Central New York region.

The ADR process is an important new legal trend that is rapidly gaining popularity as an efficient, cost-effective option to lengthy trials and court battles. As today’s court system struggles to cope with unprecedented case loads and overflowing dockets, leading litigators find the arbitration and mediation processes of ADR an effective alternative.

Arbitration brings opposing parties together to place their dispute before an impartial person who is mutually accepted by the litigants. The arbiter hears both arguments, then delivers a binding, confidential judgment in a timely fashion.

Mediation involves the selection of a neutral party mutually-agreeable to the litigants, whose job it is to find common ground and bring about a peaceful, binding, confidential settlement.

Advocate’s Forum, Inc., offers a long list of highly-respected lawyers, jurists and qualified business leaders available to be arbitrators or mediators in the Syracuse and Central New York area for a broad range of cases — including personal injury actions, contract disputes, insurance claims, and business transactions. Over the past three years alone, mediators now affiliated with Advocate’s Forum, Inc., have helped resolve more than 200 cases.

In addition, to promote the best possible resolution of each case, Advocate’s Forum, Inc., has constructed an impressive, high-tech courtroom-style facility. This custom-designed arbitration room features familiar courtroom seating and décor, enhanced by dataports, internet connections, and audio/visual support systems. Joined with the comfortable mediation conference room, Advocate’s Forum, Inc., offers unique, unparalleled physical resources for the arbitration and mediation processes.

Advocate’s Forum, Inc., welcomes all inquiries regarding the arbitration and mediation process, and its ADR facilities. Located at 173 Intrepid Lane, Syracuse, New York, 13205, Advocate’s Forum, Inc., can be reached at (315) 469-6297. Or contact or visit Advocate’s Forum, Inc., online at www.advocatesforum.com.

» Click for Free Consultation

If you or a loved one has been injured because of someone else’s negligence, call on the New York personal injury lawyers of Greene & Reid. Call us toll free at (800) 886-9665 or simply complete a free online consultation form, and one of our attorneys will contact you to discuss your accident and answer your questions, free of charge. Greene & Reid has successfully advocated for clients in CortlandSyracuse, and Watertown.

Our New York injury lawyers handle cases in the areas of auto accidentbirth injuryboating accidentbrain injuryconstruction accidentconsumer frauddrug injuriesdog bites,insurance disputesmotorcycle accidentnursing home abuseslip and fall accident, andwrongful death.

Greene and Reid Announces Opening of Watertown Office

WATERTOWN, N.Y.
MARCH 1, 2003

The personal injury law firm of Greene and Reid, LLP, is pleased to announce the opening of its new office in Watertown, New York.

The newly renovated Watertown office is located in Allen’s Plaza, just off of Interstate 81, Exit 48, on State Route 342. It is easily accessed from all directions and offers plenty of free parking. The new location is especially convenient for clients in St. Lawrence and Lewis Counties, as well as members of the Fort Drum community. Of course, clients can also arrange to meet an attorney at their home.

Attorney Arthur M. Greene, a partner in Greene and Reid, LLP, together with Attorney Joe Fedorko, see clients regularly at both of the firm’s Jefferson County offices. Attorney Greene, has had extensive experience in helping North County clients resolve every kind of personal injury claim. Attorney Fedorko, a former Fort Drum JAG Officer and a resident of Henderson, focuses his practice on automobile and boating accidents, slip and falls, and construction injuries.

Greene and Reid, LLP, also has offices in Syracuse, New York, and provides the highest standard of legal services to injured people throughout Central and Northern New York.

» Click for Free Consultation

If you or a loved one has been injured because of someone else’s negligence, call on the New York personal injury lawyers of Greene & Reid. Call us toll free at (800) 886-9665 or simply complete a free online consultation form, and one of our attorneys will contact you to discuss your accident and answer your questions, free of charge. Greene & Reid has successfully advocated for clients in CortlandSyracuse, and Watertown.

Our New York injury lawyers handle cases in the areas of auto accidentbirth injuryboating accidentbrain injuryconstruction accidentconsumer frauddrug injuriesdog bites,insurance disputesmotorcycle accidentnursing home abuseslip and fall accident, andwrongful death.

BRIEF FOR PLAINTIFF-APPELLANT, ALICE BLOUIN, AS ADMINISTRATRIX OF THE ESTATE OF SHEILA POULIOT

SUBMITTED BY GREENE & REID, LLP
173 INTREPID LANE, SYRACUSE, NEW YORK 13205
TEL. 315-492-9665
JAMES E. REID, ESQ.

UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
02-7997
2004 U.S. App. LEXIS 1477

PRELIMINARY STATEMENT

Plaintiff-Appellant Alice Blouin, as Administratrix of the estate of Sheila Pouliot (hereinafter “plaintiff” or “plaintiff-appellant”), appeals from the July 19, 2002, Decision and Order of the United States District Court for the Northern District of New York in the case of Alice Blouin, et al. v. Eliot L. Spitzer, et al. , No. 01-CV-0925 (HGM/GJD). That Order dismissed plaintiff’s 42 U.S.C. § 1983 action, related U.S. Constitutional claims, and pendent State survival claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure, as converted from a Rule 12(b)(6) motion (SPA-1). 1.

Plaintiff-Appellant files this brief requesting this Court reverse the Decision and Order of the District Court, except that portion which held that defendants are not entitled to absolute immunity, thereby reinstating plaintiff’s Verified Complaint in its entirety.

STATEMENT OF JURISDICTION

Plaintiff’s Verified Complaint alleges that defendants, individually and in their official capacities, acting under color of State law, violated the civil rights of plaintiff’s deceased, Sheila Pouliot, a profoundly retarded individual, under the First, Fourth and Fourteenth Amendments of the U.S. Constitution, in violation of 42 U.S.C. § 1983. In addition, plaintiff’s Complaint contains survival claims under New York law for: (1) negligence; (2) unlawful practice of medicine; (3) assault and battery; (4) intentional and/or reckless infliction of emotional and mental distress and anguish; and (5) State constitutional claims. The action was originally commenced in the New York State Supreme Court, Onondaga County, but was removed by defendants Spitzer and Thurlow to District Court pursuant to 28 U.S.C. § 1441. Jurisdiction over such claims in District Court is authorized pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and the doctrine ofpendente jurisdiction.

This is an appeal from a final Judgment that disposes of the claims of the parties (SPA-24). This Court has jurisdiction to hear the appeal of any final decision of the District Court pursuant to 28 U.S.C. § 1291.

This appeal by plaintiffs-appellants is filed on or before October 29, 2002, in conformity with this Court’s Scheduling Order.

STATEMENT OF ISSUES PRESENTED

The issues on appeal are:

1. Did defendants, acting under color of state law, when ordering, directing or importuning State-employed physicians to forcibly initiate “life sustaining” medical treatment to Sheila Pouliot without her consent and without the appointment of a legal guardian, or initiation of court proceedings or a court order, and contrary to the course of medical care effectuated by the attending physicians, violate Sheila Pouliot’s rights under the First, Fourth and Fourteenth Amendments of the U.S. Constitution, and were defendants otherwise negligent, commit the unlawful practice of medicine, commit a battery, inflict intentional and/or reckless emotional and mental distress and anguish, and/or violate Sheila Pouliot’s rights under the New York State Constitution?

2. Did the District Court err in granting defendants’ motion for summary judgment upon the facts and law described in Paragraph “1,” above, thereupon dismissing plaintiff’s entire Verified Complaint, including all pendent State claims, and in entering judgment for defendants?

STATEMENT OF CASE

On March 5, 2001, plaintiff commenced this action by Verified Complaint in New York State Supreme Court, Onondaga County, and served defendants Spitzer and Thurlow in their individual and official capacities (A-13).

On June 11, 2001, defendants removed this action to the U.S. District Court for the Northern District of New York (A-7). On June 12, 2001, defendants filed a motion to dismiss before answer pursuant to Fed. R. Civ. P. Rule 12(b)(6), for failure to state a cause of action (A-63). On August 17, 2001, plaintiff-appellant filed opposition to said motion (A-101).

On November 5, 2001, the Court converted defendants’ motion to dismiss to a motion for summary judgment, pursuant to Fed. R. Civ. P. Rule 56 (A-525). Defendants filed papers in support of summary judgment (A-528), plaintiff filed in opposition (A-1620), and defendants replied (A-1667). On April 29, 2002, oral argument was heard (A-1678). On July 19, 2002, Judge Howard G. Munson granted defendants’ motion for summary judgment, and dismissed plaintiff’s Verified Complaint. The Decision, Order and resulting Judgment appealed from were filed with the Clerk of the District Court on July 22, 2002 (SPA-1). Notice of Appeal was filed by plaintiff on August 13, 2002 (A-1712).

STATEMENT OF FACTS

As set forth in the Verified Complaint of plaintiff Sheila Pouliot, decedent had been, from the age of nine (9) months, a blind, profoundly mentally and physically handicapped person, totally dependent upon others over her life of 42 years for all basic functions including feeding, dressing and toileting (A-18). Sheila’s chronic disability resulted from her mental retardation and severe cerebral palsy, which caused incomplete quadriparesis (A-1638).

Prior to her death on March 6, 2000, Sheila Pouliot resided at a residential group home in Syracuse, New York under the auspices and control of the New York State Office of Mental Retardation and Developmental Disabilities (A-18).

During her life at the residential group home, Sheila changed from an individual who was simply chronically disabled to one who was chronically disabled and also chronically ill (A-1638). Her chronic illnesses included: osteoporosis, with associated fractures of her right humerus and pelvis; dislocation of her left hip and possibly her right shoulder; widespread flexion contractures involving elbows, knees and hips; and a seizure disorder (A-1638, 1639). When she lost the ability to eat, a PEG tube was placed for feeding (A-1639).

In the twelve months before her December 21, 1999, admission to University Hospital, Sheila moved from chronic disability to serious illness characterized by gastroesophageal reflux disease with recurrent aspiration pneumonia and episodes of gastrointestinal bleeding (A-1639). These occurred despite being placed on Propulsid and H2 blockers, medications used to reduce fluid and acid production in the stomach (A-1639). She also developed chronic, severe constipation, which was another sign of failing gut function (A-1639).

On December 21, 1999, Sheila was admitted to SUNY Health Science Center/University Hospital in Syracuse, a New York State medical facility, acutely ill and near death (A-1639). She had extremely low oxygen levels, a fever of 101.5, and her blood pressure fell to 90/40 (A-1639). She had aspiration pneumonia, an upper gastrointestinal bleed, and an “acute” abdomen, manifested by generalized, severe, abdominal pain and a nonfunctioning intestine (A-1639). Sheila suffered from tachypnea (rapid respirations) and respiratory distress (A-1644). On admission she was edematous and her albumin was 2.7, both indicators of poor nutritional status. Low albumin is recognized as a sign of extremely poor prognosis (A-1640). In the opinion of plaintiff’s expert physician, Kathleen McGrail, M.D., Sheila had entered her final , terminal illness upon admission to University Hospital on December 21, 1999 (A-1642).

Immediately upon Sheila’s hospitalization, meetings were held with her family, including plaintiff, her treating physician team, the hospital’s ethics consultants, nursing staff, clergy and social worker to discuss Sheila’s medical situation (A-132, 618). Given her grave and imminently terminal condition, complete lack of gut function, and because any resuscitative treatment would only prolong Sheila’s suffering and cause extreme pain, there was agreement among those professionals that palliative or “hospice” comfort-care treatment only would be provided (A-132, 618). Palliative care is a well-recognized level of medical care for critical, near-death, terminally-ill patients in which enhancement of comfort and reduction in pain are the primary goals (A-1643). Therefore, on December 22, 1999, the doctors treating Sheila stopped any treatment which would prolong her dying, i.e., intravenous fluids and antibiotics, and treated her pain and respiratory distress with the standard drug for those symptoms, morphine sulfate (A-1644).

Between December 22, 1999, and December 27, 1999, while receiving 3 mg. of morphine, Sheila was finally resting comfortably (A-1640). During the mid-afternoon of December 27, 1999, Sheila had gurgling respirations and cyanotic nailbeds, both objective physical signs common in the last hours of life (A-142, 1640).

Suddenly, unexpectedly and without warning, consultation or consent, on December 27, 1999, at approximately 7:00 p.m., Sheila’s treating physician, Catherine Caldicott, M.D., was ordered to administer invasive nutrition, hydration and antibiotics to Sheila intravenously, chronicled in Ms. Pouliot’s hospital records (A-142), as follows:

12/27/99 1900 Medicine Attending

Ms. Pouliot appears dehydrated. I have been ordered by the State of NY to provide resuscitative measures. This is against the family’s wishes and is causing much strife. However, I will proceed with IV fluids and IV antibiotics(even though they are of questionable benefit in cases of aspiration pneumonia). She is comfortable and in no respiratory distress. Respirations are regular, approx 20/min and unlabored.

/s/ Catherine V. Caldicott, M.D.

So overwhelming to her family was this unconsented-to intrusion and interruption of Sheila’s palliative-care dying process that plaintiff, Alice Blouin, collapsed from shock and stress in the hospital room and had to herself be treated (A-1634).

Dr. Caldicott’s note of December 28, 1999, in Sheila’s hospital chart states: “Plans: Continue fluids & antibiotics as ordered by counsel ” (A-144).

Attorney Martha Mulroy (who also holds an M.S. in Nursing), engaged as counsel for the Blouin and Pouliot family immediately following this incident, was informed on or about December 28, 1999, that defendant Thurlow was responsible for directing the resuscitative measures to Sheila on December 27, 1999 (A-270). In addition, defendant Thurlow thereafter repeatedly admitted to attorney Mulroy that he was receiving direction from the Attorney General’s Office in Albany in this matter, specifically from Eliot Spitzer and his assistants (A-271).

At no time between December 21, 1999, on Sheila’s admission, until nearly the close of business on December 30, 1999, did defendants Spitzer or Thurlow apply to any court to appoint a guardian for Sheila before they ordered or directed treatment to be forced on Sheila, nor did defendants obtain consent for those medical measures (A-142, 270). The medical treatment ordered or directed by defendants Spitzer and Thurlow required the invasive insertion of hydration and antibiotics by intravenous line into Sheila’s body (A-142, 312).

Only on December 30, 1999 — four days after the defendants’ unilateral, unconsented-to actions, and after attorney Mulroy advised defendant Thurlow she was planning to apply for a stay of treatment and appointment of a guardian pursuant to Article 17-A of the N.Y. Surr. Ct. Proc. Act — did defendant Thurlow suddenly and without notice to Ms. Mulroy apply to the Supreme Court, Onondaga County, in the late afternoon of that day for a C.P.L.R. § 1202 guardian ad litem , before attorney Mulroy could file in Surrogate’s Court (A-270).

In their initial Rule 12(b)(6) motion to dismiss, defendants Spitzer and Thurlow asserted to the District Court that ” on December 30, 1999 , University Hospital, OMRDD and the Attorney General’s Office learned that the treating physicians had not administered nutrition or antibiotics to Ms. Pouliot. As a result, the Attorney General’s Office . immediately petitioned the Supreme Court, Onondaga County, to appoint a guardian ad litem for Ms. Pouliot” (A-103).

This was not true, and it is time for a Court to note this falsity. Indeed, on December 30, 1999, before State Supreme Court Justice Tormey, defendant Thurlow admitted the following (A-106, 290):

MR. THURLOW: Your Honor, I have had a number of conversations with personnel at University Hospital over the last few days , and it is my understanding that the — that Sheila Pouliot’s condition fluctuates, but that as recently as this morning, her treating physician, Dr. Catherine Caldicott, had expressed some concern that Sheila Pouliot was in increasing pain and discomfort . And it has become apparent to University Hospital that Sheila Pouliot’s conditions may continue to deteriorate, even in the face of continued feeding, hydration and administration of antibiotics .

At that same December 30, 1999, hospital hearing, Sheila’s treating physician, Catherine Caldicott, M.D., testified as follows (A-107, 314):

DR. CALDICOTT: Before we initiated the artificial means of the fluid and the antibiotics Monday night [December 27, 1999], she would have died by now . Since we initiated those things, we extended her lifespan now four days.

In defendants’ motion for summary judgment, defendant Thurlow now admits he was involved on December 27, 1999 (A-1602), but claims he only provided legal counsel to the hospital attorneys, and that “no person from the Office of the Attorney General’s Office [sic] ever ordered that life-sustaining artificial hydration, nutrition or other medical treatment be administered” (A-1603), an assertion adamantly contradicted under oath by attorney Martha Mulroy (A-1631 to 1635), and further belied by Dr. Caldicott’s notes of December 27 and 28, 1999 (A-142, 144). For his part, defendant Spitzer has never provided any affirmation or affidavit contradicting plaintiff’s facts (A-1626).

After hearing testimony of the doctors and family members in the hospital on December 30, 1999, as well as Gerard Neri, the guardian ad litem appointed by Justice Tormey, the Court issued an Order on January 3, 2000, terminating all medical treatment to Sheila Pouliot, except for nutrition as tolerated, and palliative hydration (A-349).

On January 4, 2000, attorney Mulroy commenced a C.P.L.R. Article 78 proceeding on behalf of Sheila Pouliot and her family to permanently enjoin the State and defendants from further nutritional sustenance treatment (A-350, 352). Sheila’s physician, Karen Heitzman, M.D., and guardian ad litem Neri were in agreement with the Pouliot family’s wishes (A-356, 360), consistent with Sheila’s physician team, hospital ethicist, clergy and social worker some two weeks earlier.

As of January 4, 2000, Dr. Heitzman averred that Sheila was in a vegetative state and reacting to painful stimuli, was verbally non-communicative and had severe contractures of her upper and lower extremities, and the existing femoral line would have to be changed to accommodate any hyperalimentation feeding (A-360). Risks included bleeding, infection, thrombosis and pain (A-360). Dr. Heitzman further swore that if nutritional efforts were initiated, the possibility for increased and prolonged thrombosis and pain existed and these efforts would not improve Sheila’s state of health or prolong her life (A-360).

A Court hearing was held on January 4, 2000, on the family’s application for a permanent restraining order (A-362). After oral argument, the Court signed a temporary restraining Order prohibiting the provision of nutrition or any other form of life sustaining treatment to Sheila Pouliot unless approved in writing by her guardian ad litem (A-350).

On January 6, 2000, a meeting was held in University Hospital at the request of defendant Thurlow attended by Sheila’s treating physician, Karen Heitzman, M.D., University Hospital Medical Director Patricia Numann, M.D., attorney Mulroy, guardian ad litem Gerard Neri, hospital counsel Barwick and McGraw, defendant Thurlow, representatives of the hospital administration, and Pouliot family members, including Alice Blouin (A-1633, 1634). During that meeting, extraordinary pressure and duress was placed upon Sheila’s treating physician and family members by defendant Thurlow and hospital counsel then present (A-1634). This duress and pressure included, inter alia , express and specific importuning by defendant Thurlow that the physicians and family accede to and accept administration of some kind of caloric feeding to Sheila (A-1634). At that meeting, defendant Thurlow was greatly concerned about the implication that the State and the hospital would be seen as allowing the retarded Sheila Pouliot to “starve to death” (A-1634).

As a result of this duress by the defendants, Sheila’s family entered into a Stipulation on January 7, 2000, on defendants’ motion to vacate the January 4, 2000, Order (A-78, 1634). The stipulation provided for administration of fluid and intravenous nutrition by dextrose solution through a G-tube (A-80, 87). Initiation of dextrose on January 8, 2000, caused Sheila to immediately vomit (A-1635). Sheila experienced recurrent projectile vomiting during administration of the dextrose, which was continued without interruption through the months of January and February, 2000 (A-1635).

On February 29, 2000, Sheila’s physician, David F. Lehmann, M.D., wrote in a consultation note (A-248):

The intravenous fluids promote that the patient is kept alive for her own body to consume/eat itself. This current plan of IV hydration promotes an increase in patient suffering, does not promote life quality and maintains her heart/lung capacity only — and, indeed, therefore this current treatment is clearly outside of acceptable medical bounds , in effect worsening her condition since she is consuming herself calorically. It is thus, not medically indicated .

On February 29, 2000, another of Sheila Pouliot’s physicians, Kathy Faber-Langerdoen, M.D., stated in her consultation note (A-246, 247):

Her gut cannot accept artificial feedings at this point, and her bowel sounds remain absent, indicating that her gut is not functioning . Sheila is edematous, with total body bloating from hydration in the absence of protein. Hydration also has resulted in severe . cardiac muscle breakdown. She will die a slow and lingering death from protein malnutrition .

Dr. Faber-Langerdoen wrote further in a consultation note of February 29, 2000, that Sheila’s treatment “[i]s now inhumane and is causing suffering . from a medical standpoint it is outside the bounds of what I consider to be medically indicated care ” (A-246).

As a result, the Decedent’s family again sought judicial intervention before Justice Tormey on March 1, 2000, for an Order restraining the State and defendants from carrying out medical treatment which was contraindicated and otherwise against the advice of the patient’s doctors (A-409).

Despite the aforementioned graphic statements by Sheila’s treating physicians, defendants Spitzer and Thurlow nevertheless opposed the March 1, 2001, application, insisting that Sheila’s doctors and/or hospital staff continue the administration of nutrition and hydration, in direct contravention of the health and welfare of the patient (A-409).

At the March 1, 2000, hearing, the attorneys for University Hospital parted company completely with defendants Spitzer and Thurlow, and, recognizing the horrendous condition Sheila was in, had no opposition to the removal of the feeding tubes (A-491, 492). Defendants Spitzer and Thurlow alone, without presenting a single medical witness in support of their position, demanded that treatment continue (A-409, 493, 498).

After the hearing, the Court issued an order that hydration to Sheila Pouliot be stopped (A-96, 499 to 500).

Defendants Spitzer and Thurlow immediately appealed Justice Tormey’s Order, taking advantage of the automatic statutory stay provisions under New York law (A-1607).

On March 2, 2002, Dr. Faber-Langerdoen wrote in the hospital chart that the nutrition and hydration treatment was causing “grotesque harm” to Sheila (A-960).

On March 3, 2000, attorney Mulroy brought an Order to Show Cause, supported by affidavits from three of Sheila’s physicians (A-789, 795, 796, 798), to vacate the stay. Appellate Division Justice John T. Lawton granted the motion to vacate the stay until a full hearing before the Appellate Division could be held on March 7, 2000 (A-790). Incredibly, defendants Spitzer and Thurlow both opposed the application to vacate the stay (A-69).

Hydration was ended o n March 3, 2000 (A-964).

Sheila died at approximately 8:30 p.m. on March 6, 2000 (A-265).

SUMMARY OF ARGUMENT

The District Court erred in dismissing plaintiff-appellant’s Verified Complaint.

The Court failed to recognize Sheila Pouliot’s right to bodily integrity, failed to recognize that defendants were obligated by law to obtain a guardian and consent before instituting invasive medical treatment, failed to analyze the factual evidence in the light most favorable to the non-moving plaintiff, and therefore erred in determining that qualified immunity applies in this case.

Plaintiff claims that defendants violated Sheila Pouliot’s First, Fourth and Fourteenth Amendment rights, and are culpable under State law, for unilaterally ordering and/or directing the forcible administration of nutrition, hydration and antibiotics to this profoundly retarded woman on December 27, 1999, without petitioning a Court to appoint a guardian, without obtaining any consent for such medical treatment, and then persisting in mandating that course of treatment be followed until Sheila’s death.

Plaintiff asserts that defendants’ actions violated Sheila’s Fourteenth Amendment substantive Due Process rights in that Sheila, as an imminently-dying individual who was unremittingly suffering during the dying process, had uncontrovertable Constitutional rights to personal self-determination and bodily integrity which required a conscientious surrogate to make critical medical decisions in her best interests, including a decision to withhold or withdraw life support. This was never done. Sheila’s rights, and the contours of those rights, are well-founded and long-standing in Due Process jurisprudence. Defendants’ intervention so contravened these rights and the interests of the helpless, dying patient, and was so inconsistent with acceptable medical practice that it shocks the conscience — especially for attorneys schooled in such matters.

In addition, New York State statutory and regulatory law mandating that consent be obtained before medical treatment is undertaken on mentally-retarded individuals creates a Federally-recognized liberty interest protected by the Due Process Clause of the Fourteenth Amendment, which was clearly violated by the defendants.

Defendants also deprived Sheila of fundamental rights to medical care, safety and personal security as a mentally-retarded woman under the Equal Protection Clause: (1) in obtaining palliative or hospice care; (2) in being free from unconsented forcible administration of medication; and (3) when obstructing the withholding of artificial nutrition, hydration and antibiotics, as opposed to other forms of life support. Each such fundamental right would be available to a competent individual.

Sheila Pouliot was in possession of a First Amendment privacy right to make important decisions about her medical treatment, health and safety, without governmental intrusion. This privacy right included her being free from forcible, unconsented administration of antibiotic medication. Sheila was entitled to a First Amendment strict scrutiny hearing — before medical treatment began at defendants’ order — as to whether, on a clear and convincing basis, the medical treatment proposed on December 27, 1999, was properly tailored to serve a compelling governmental interest and was the least harmful means of satisfying the government’s goal of “preserving” life. This was never done.

Sheila’s Fourth Amendment rights were also violated when defendants Spitzer and Thurlow, acting under color of law, unreasonably seized and detained her incapacitated person in order to subject her to unconsented invasive medical treatment, without either a guardian or Court order in place to do so. That conduct was excessive, unreasonable and unnecessary. It caused deplorable and extended pain and suffering, which constituted “misuse of power” under the Fourth Amendment.

The District Court also improperly dismissed plaintiff’s pendent State law claims, including battery, by erroneously applying the 20-year-old New York Court of Appeals decision in Matter of Storar , supra, to this case. Sheila Pouliot was imminently dying, suffering extreme pain, and had been provided palliative, “comfort” care, for which Storar ‘s concept of “life-saving treatment” is wholly medically contrary and inapplicable. These issues were never addressed by the Court of Appeals in Storar .

Defendants Spitzer and Thurlow, without undertaking any analysis of Sheila’s actual imminently-dying medical condition, without obtaining a guardian, without obtaining lawful consent for medical treatment, and erring in their legal analysis, unilaterally directed, ordered and/or importuned the forcible invasion of Sheila’s body by artificial nutrition, hydration and antibiotics against medical advice, which caused Sheila intense, excessive and prolonged suffering and violated clearly-established, fundamental constitutional and statutory rights. It was objectively unreasonable for defendants to believe their conduct did not violate these rights directly, or the contours of these rights, thereby subjecting them to liability under 42 U.S.C. § 1983.

ARGUMENT

POINT I

DEFENDANTS VIOLATED SHEILA POULIOT’S CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE 14 TH AMENDMENT, BECAUSE A NEVER-COMPETENT PERSON WHOSE DEATH IS IMMINENT AND WHO IS UNREMITTINGLY SUFFERING DURING THE DYING PROCESS HAS A CONSTITUTIONAL RIGHT TO HAVE A CONSCIENTIOUS SURROGATE MAKE CRITICAL MEDICAL DECISIONS IN HER BEST INTERESTS, INCLUDING A DECISION TO WITHHOLD OR WITHDRAW LIFE SUPPORT

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property without due process of law.” Defendants’ actions caused such an actionable deprivation in this case, and the District Court erred in failing to find the same.

1. THE RIGHT TO BODILY INTEGRITY AND SELF-DETERMINATION

The right to reject life-sustaining medical intervention is grounded in fundamental rights of personal self-determination and bodily integrity — the right to be left alone . The constitutional right to be free from unwanted bodily intrusions has been recognized for over a century. As early as 1884, the Supreme Court recognized that the Fourteenth Amendment protects the integrity of one’s body. Hurtado v. People of California , 110 U.S. 516 (1884); see also , Union Pacific Railroad v. Botsford , 141 U.S. 250, 251 (1891) [“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others”]; Meyer v. Nebraska , 262 U.S. 390, 399 (1923) [Fourteenth Amendment encompasses “not merely freedom from bodily restraint,” but “to engage in any of the common occupations of life . and enjoy the privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”]; Olmstead v. United States , 277 U.S. 438 (1928) [Brandeis, J., dissenting: “(The makers of our Constitution) conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men”]; Skinner v. Oklahoma , 316 U.S. 535 (1942) [Sterilization performed without consent deprived the individual of a “basic liberty”]; Rochin v. California , 342 U.S. 165 (1952) [“Illegally breaking into the privacy of petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach contents . by agents of government . are methods too close to the rack and the screw to permit of constitutional differentiation”]; Albright v. Oliver , 510 U.S. 266, 272 (1994) [“The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity”]; In re Cincinnati Radiation Litigation , 874 F. Supp. 796 (S.D. Ohio 1995) [Secret administration by government officials of experimental irradiation to terminally-ill patients of limited intelligence without consent is a violation of the constitutional right to bodily integrity; qualified immunity denied]; Stadt v. University of Rochester , 921 F. Supp. 1023 (W.D.N.Y. 1996) [Injection of patient at hospital by government officials with plutonium without her knowledge or consent violated her bodily integrity; qualified immunity denied].

A competent patient unarguably has a fundamental liberty interest in rejecting life-sustaining medical intervention. That proposition has long been accepted in state cases, e.g ., Satz v. Perlmutter , 379 So.2d 359 (Fla. 1980); In re Farrell , 108 N.J. 335, 529 A.2d 404 (N.J. 1987); In re Quinlan , 70 N.J. 10, 355 A.2d 674 (N.J. 1976); Matter of Fosmire v. Nicoleau , 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990). This fundamental liberty interest is grounded upon the aforementioned constitutional principles, and on the traditional doctrine of informed consent. Id .; N.Y. Pub. Health Law §§ 2504, 2805-d.

The liberty interest in rejecting medical intervention has been recognized by the U.S. Supreme Court. In 1990, the Supreme Court assumed arguendo that a competent patient has a constitutional right to reject treatment. Cruzan v. Missouri Department of Health , 497 U.S. 261, 279 (1990). In 1997, the Court acknowledged a constitutional entitlement to refuse life-sustaining treatment. Washington v. Glucksberg , 521 U.S. 702, 725 (1997). In Glucksberg , the Supreme Court clarified its decision in Cruzan , stating that the liberty interest identified in Cruzan included the right to refuse artificial provision of “life-sustaining” food and water, as follows:

Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption [in Cruzan ] was entirely consistent with this Nation’s history and constitutional traditions.

The dying patient’s fundamental liberty interest entitled Sheila to shape the course of medical intervention in her dying process — to decide how much bodily invasion to tolerate, how much to suffer, and how much to struggle against unavoidable, imminent death.

This right is not confined to competent persons. Even an incompetent person has a constitutionally cognizable liberty interest in avoiding unwanted bodily invasions. Washington v. Harper , 494 U.S. 210, 221 (1990). The Supreme Court, in Youngberg, et al., v. Romeo , 457 U.S. 307 (1982), established that mentally-retarded persons have constitutionally-protected liberty interests under the Due Process Clause to adequate: (1) medical care; (2) safety; (3) personal security; and (4) freedom from bodily restraint. These liberty interests arise from the fundamental right to bodily integrity, including avoiding a prolonged and painful dying process, a prerogative to be implemented on behalf of a never-competent patient by a conscientious surrogate charged with making medical decisions in the best interests of the patient.

At a minimum, when the incompetent patient is suffering during the terminal stage of an imminent dying process, as described by plaintiff’s expert Kathleen McGrail, M.D., the patient’s constitutional interests to bodily integrity must prevail against any countervailing government interest in “preserving” life. See , In re Grant , 109 Wn.2d 545, 747 P.2d 445, 451 (Wash. 1987) [Where medical treatment, i.e., “life-saving treatment,” merely postpones death for a terminal patient, the individual’s right to refuse treatment or to “have it withheld in his or her behalf” must prevail].

2. THE RIGHT TO A SURROGATE DECISIONMAKER 

Numerous state decisions recognize that a surrogate must be allowed to make critical medical decisions on behalf of an incompetent dying patient in order to preserve the patient’s constitutional interest in avoiding unwanted medical intervention prolonging a dying process. This principle was recognized in the first major case in death and dying jurisprudence, In re Quinlan , 70 N.J. 10, 355 A.2d 647 (N.J. 1976). There, the New Jersey Supreme Court ruled that the permanently unconscious patient would, if competent, be constitutionally entitled to decline life support, and that her constitutional prerogative should not be lost because of incompetency. Id ., at 664. The court explained that “[T]he only practical way to prevent destruction of the right [to decline treatment]” was to permit the family to make its best judgment about what the patient would want done under the circumstances. Id . See also, Rasmussen v. Fleming , 154 Ariz. 207, 741 P.2d 674, 686 (Ariz. 1987); Foody v. Manchester Mem’l Hosp. , 40 Conn. Supp. 127, 482 A.2d 713, 718 (Conn. 1984); Severns v. Wilmington Med. Ctr., Inc., et al . , 421 A.2d 1334, 1347 (Del. 1980); John F. Kennedy Hosp. v. Bludworth , 452 So.2d 921, 924 (Fla. 1984) [All concurring that a surrogate must be allowed to exercise choice on behalf of a now-incompetent patient so that the constitutional right to decline treatment is not lost].

Nor can an incompetent dying patient’s right to have a surrogate make critical end-of-life determinations on the suffering patient’s behalf be confined to previously-competent persons. It is axiomatic that a never-competent person has constitutional interests in avoiding medical intrusions that would needlessly prolong the dying process. In 1976, the Massachusetts Supreme Judicial Court first recognized this right in the case of Joseph Saikewicz, a 67-year-old, severely retarded person stricken with terminal cancer. See, Superintendent of Belchertown State Sch. v. Saikewicz , 373 Mass. 728, 370 N.E.2d 417, 432 (Mass. 1977) [Even a profoundly disabled person must be accorded “the same panoply of rights and choices” as a competent person, including choice to forgo life support].

Other courts have similarly acknowledged that a never-competent person has constitutionally-grounded liberty interests that can only be effectuated by surrogates acting on behalf of the incompetent person, and that this principle extends to the end-of-life context. See, Grant , 747 P.2d at 449; In re L.W ., 167 Wis. 2d 60, 482 N.W.2d 60, 65-67 (Wis. 1992) [An incompetent individual does not relinquish a right to refuse unwanted treatment by virtue of incompetency]; In re Hamlin , 102 Wn.2d 810, 689 P.2d 1372 (Wash. 1984); In re Torres , 357 N.W.2d 332, 335 (Minn. 1984); and In re L.H.R. , 253 Ga. 439, 321 S.E.2d 716 (Ga. 1984).

Courts have determined it is not incongruous to associate a right to refuse life-sustaining medical intervention with a never-competent person. Part of the liberty interest in rejecting treatment is self-determination, ostensibly requiring a personalized weighing of medical options beyond the capacity of a profoundly disabled person. Yet liberty in the sense of autonomous choice is not the only aspect of liberty implicated if intrusive medical treatment is thrust upon a suffering, imminently dying person contrary to that person’s best interests. The right to avoid unwanted treatment that prolongs a torturous dying process is grounded in more than self-determination. Interests in well-being (having the person’s best interests, especially the avoidance of suffering, respected) and in bodily integrity (freedom from unnecessary bodily invasion) are mandatory and integral aspects of a right to reject life support. Such interests spring from an individual’s basic, self-evident “right to be left alone,” long recognized in American law. Albright v. Oliver , 510 U.S. 266 (1994). In Glucksberg , supra, at 724-25, Chief Justice Rehnquist, delivering the Court’s opinion, grounded a patient’s right to avoid treatment primarily in this concept of bodily integrity. In short, a dying, never-competent person has a strong liberty interest in a surrogate’s determination reflecting the patient’s best interests in order to avoid unwanted bodily invasions that will prolong a torturous dying process.

This is the heart of Sheila’s claim — that defendants Spitzer and Thurlow, and possibly others, unilaterally and without having a court-ordered guardian assigned to protect Sheila’s right to avoid unwanted bodily invasions extending her suffering, did themselves order, direct and/or cause initiation of resuscitative medical treatment — nutrition, hydration and antibiotics — to Sheila. Defendants’ actions were contrary to the medical attendings’ determinations (made in Sheila’s best interests and in conformity with good and accepted current medical practices) that any further medical intervention would exacerbate and cause excessive suffering and prolong a torturous dying process. See , affirmation of Kathleen McGrail, M.D. (A-1645, 1649). Defendants’ conduct denied Sheila her basic liberty rights in violation of the Due Process Clause.

3. DEFENDANTS’ ACTIONS SHOCK THE CONSCIENCE

As Sheila’s case sadly — yet realistically — demonstrates, and as set forth in the affidavit of Dr. McGrail, a dying person’s best interests sometimes dictate withdrawal of life-sustaining medical intervention. That is the case where a terminal, imminently dying patient is perceptibly and unremittingly suffering and experiencing excessive pain. Defendants strenuously argue that New York law precludes all surrogate decisions ending medical intervention for never-competent persons (because the never-competent patient could not have issued prior instructions about end-of-life care). This is not correct. The New York Court of Appeals left open the question of what to do for a terminally-ill, mentally-retarded person who is experiencing excessive pain and suffering. The Court expressly stated in Matter of Storar , 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981), that the question of whether the “presence or absence of excessive pain ” would “be determinative with respect to the continuation of a life sustaining measure need not be reached under the facts of this case.” Id ., at 381, n. 7.

The consequence of appellees’ failure to properly analyze and understand the Storar decision, despite their absolute insistence on its preclusive authority, is to compel medical invasions extending a never-competent patient’s dying process until the last possible breath, regardless of the harm caused or unremitting pain and suffering imposed. See, affirmation of Dr. McGrail (A-1645, 1646). Defendants’ position with regard to Storar is adopted by the District Courtverbatim . Such a harsh and inhumane approach, not addressed under Storar or otherwise in New York law, prevents families and health care professionals from making common-sense decisions for their patients or loved ones, and prolongs unnecessary pain and suffering. See , affirmation of Dr. McGrail (A-1648). Terminally-ill, never-competent persons are thereby rendered unwilling prisoners of medical technology. This situation clearly violates the mentally-retarded individual’s long-standing, fundamental constitutional Due Process rights to well-being and bodily integrity, as well as their Equal Protection rights.

Indeed, the defendants’ forcible and unconsented intervention in the instant matter so contravened the medical interests of the helpless, dying patient, and was so inconsistent with accepted medical standards and procedures, that it shocks the conscience. See, Rochin v. California , 342 U.S. 165 (1952) [Government conduct that “shocks the conscience,” and “violates the decencies of civilized conduct” violates the Due Process Clause]. Defendants not only unilaterally intervened on December 27, 1999, they continued to coerce and importune the family and the fearful medical staff into acceding in a course of conduct that clearly contravened Sheila’s best interests; see , affirmation of Martha Mulroy (A-1633, 1634). The District Court never addressed this issue, nor did it ever make mention of these critically-important facts, as averred by attorney Mulroy.

As the U.S. Supreme Court has stated in County of Sacramento, et al. v. Lewis , 523 U.S. 833 (1998), at page 847: “While the measure of what is conscience shocking is no calibrated yardstick, it does, as Judge Friendly put it, ‘point the way.’ Johnson v. Glick , 481 F.2d 1028, 1033 (CA2), cert. denied , 414 U.S. 1033 (1978).” As further set forth in County of Sacramento v. Lewis , at page 851, “deliberate indifference” to the rights of an individual as to the use of compulsion or force constitutes a substantive due process violation under the Fourteenth Amendment, especially where the implicated government actors are afforded a reasonable opportunity to deliberate various alternatives before electing a course of action. The Court in Lewis went on to state, at Footnote 12, that such a “deliberate indifference” substantive due process standard is applicable to the care of the severely mentally retarded .

Defendants’ course of conduct in this action was shocking in its indifference to Sheila’s medical circumstances and experiences in her dying process. Kathleen McGrail, M.D., board-certified in both internal medicine and palliative care, states that in her medical opinion, Sheila experienced significant and excessive pain and suffering as a result of the actions taken on December 27, 1999 (A-1646, 1649):

Palliative care specialists would equate Sheila’s welfare at the point of her admission to University Hospital on December 21, 1999, already in the dying process, to safe and comfortable dying. Sheila lived nearly three more months with intravenous fluids. Despite aggressive efforts to control her symptoms, such control was not achieved and the principle of safe and comfortable dying was violated. All observers agreed she had significant and excessive pain, manifested by moaning and crying, by furrowing her forehead and by flexing her extremities. These symptoms occurred despite the fact that she was on the equivalent of approximately 5000 mg. of oral morphine a day. She could sometimes be partially consoled by stroking her forehead or placing a musical angel next to her head on her pillow. By the time of her death on March 6, 2000, she had widespread skin breakdown, total body edema, and she continued marked distress, crying and moaning in bed much of the time.

And Dr. McGrail points out further (A-1647):

I find no evidence in the record that the defendants took any measure of or even considered the actual increase in prolonged and excessive pain, suffering and dying of Sheila Pouliot before they acted as they did on December 27, 1999, or thereafter until her death.

Under defendants’ approach to Sheila’s situation, never-competent persons in New York are placed in a far worse position than previously-competent patients. The latter at least have an opportunity to avoid the specter of unwanted bodily invasions prolonging a torturous dying process by either appointing a health care proxy or by leaving clear-cut instructions in the form of an advance medical directive. Sheila, as a life-long profoundly disabled person, never had either option. This is violative of Sheila’s equal protection rights; see , City of Cleburne, Texas v. Cleburne Living Center, et al ., 473 U.S. 432 (1985).

It is critical to understand that Sheila’s constitutional claim relates only to incompetent persons who are terminally ill and in the process of dying, i.e., death is imminent within a short time period, and who are suffering from intractable physical or emotional pain. Such a claim is not foreclosed by the limited holding in Cruzan , 497 U.S. 261 (1990).

Cruzan dealt with a formerly competent patient mired in a permanently unconscious state; her condition had been stabilized, her life was preservable for years, and she was insensate and therefore not subject to pain and suffering (facts far different from Sheila Pouliot’s). Id ., at 265-68. In that context (and in analyzing a pre-existing statutory scheme), a deeply divided Supreme Court ruled, 5 to 4, that a state could constitutionally confine removal of life support to instances when the patient had previously issued instructions dictating such a result. Id ., at 283. The prevailing state interest was avoidance of arbitrary judgments based on quality of life, meaning judgments that a particular life was not valuable enough to be preserved. Id ., at 281. However, there is a distinct and constitutional difference between: (i) surrogate judgments about the social worth or intrinsic value of incapacitated patients; and (ii) judgments about intractable suffering so extreme and severe that the patient’s own best interests dictate removal and/or cessation of life support prolonging a torturous dying process. For recognition of that distinction, see , In re Conroy , 98 N.J. 321, 486 A.2d 1209 (N.J. 1986), and In re Crum , 580 N.E.2d 876, 883 (Ohio Misc. 1991).

Sheila’s case, contrary to Cruzan , involves both an imminently dying patient and a determination that extreme suffering necessitates withholding of medical intervention prolonging a torturous dying process. Dr. McGrail states that on December 27, 1999, Sheila Pouliot was in a terminal condition, had near-death “gurgling respirations and cyanotic nailbeds,” and was properly and humanely on comfort care because of her egregious suffering as death drew imminent (A-1640, 1646, 1649). A patient whose death is imminent, and who is suffering in the actual dying process, has a liberty interest in having a surrogate decision determining her best interests which prevails against any government interest in prolonging life. See, Grant , 747 P.2d at 447, 451.

U.S. Supreme Court justices have consistently acknowledged the constitutional interest of patients to avoiding unnecessary suffering in the dying process. That recognition came in several concurring opinions issued in the 1997 decisions rejecting challenges to state laws punishing assistance to suicide. Glucksberg , 521 U.S. 702 (1997); Vacco v. Quill , 521 U.S. 793 (1997). In Vacco in particular, the Supreme Court recognized the right of a physician to administer “aggressive palliative care” to a terminally-ill patient who desired the same, including the administration of painkilling drugs that may hasten a patient’s death, so long as the physician’s purpose and intent is to ease the patient’s pain. Id ., at 802. As the Court stated in Vacco , at Footnote 11:

Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care relating to that refusal, which may have the foreseen but unintended ‘double effect’ of hastening the patient’s death. [Emphasis added]

These judicial expressions underscore the connection between Fourteenth Amendment liberty and dying people’s interests in avoiding suffering. In contrast to the dying patients in Glucksberg and Vacco , Sheila was not seeking active assistance in dying. Her family was seeking the withholding of unwanted bodily invasions which would extend her suffering during her unavoidable, imminent dying process; she merely wished to be left alone.

4. PLAINTIFF’S FACTUAL PROOF OF VIOLATIONS OF DUE PROCESS 

Plaintiff has provided ample factual evidence, in admissible form, that the defendants violated Sheila’s Fourteenth Amendment rights. The sworn statements of attorney Mulroy (A-269, 1631), having contemporaneous personal knowledge of the events complained of herein, affirms that defendants Spitzer and Thurlow: (1) were directly involved in the fateful initiation of resuscitative medical care and treatment to Sheila on December 27, 1999; and (2) one and/or both defendants were involved in the coercion of and duress toward Sheila’s family and her treating physicians through and into January 7, 2000, and thereafter even to March, to accede to their improvident course of conduct toward Sheila. This creates questions of fact in opposition to the assertions made by defendant Thurlow in his Affirmation of January 24, 2002, and the January 14, 2002, Affirmations of Joshua Barwick and Regina McGraw.

In addition, Dr. McGrail, after review of Sheila’s hospital records, provided her sworn opinion (A-1636), within a reasonable degree of medical certainty: (1) that the judgment and diagnosis of the hospital physicians that Sheila was experiencing her final, terminal illness and was acutely ill and near death upon admission on December 21, 1999, was reasonable; (2) that the physicians’ approach to Sheila’s medical care from December 21, 1999, up to the direction by the defendants to initiate “life-sustaining treatment,” was reasonable; (3) that Sheila was in the last stage of the dying process on December 27, 1999; (4) that the action by defendants, and possibly others, on December 27, 1999, was contraindicated and an unjustifiable departure from good and accepted medical practice; (5) that no physician engaged in palliative care would have ordered or directed the initiation of resuscitative measures to Sheila Pouliot as defendants did on December 27, 1999; (6) that the physician(s) who did initiate such treatment as Sheila received on December 27, 1999, at the importuning, and/or direction of the defendants, would only have done so under extreme duress , their will overborne by individuals in authority who were in a position and/or actually did threaten to undertake professional and/or legal action or discipline against said physician(s); and (7) that the actions, orders and or directions of others, including defendants Spitzer and Thurlow, on December 27, 1999, were the competent producing cause of the mental, emotional and physical pain, suffering and distress of Sheila Pouliot, and extended her dying process under egregious circumstances.

Vivid visual and audio evidence of the excessive pain and suffering Sheila experienced is contained in the March 2, 2000, videotape taken at University Hospital, just four days before she died. Copies of this videotape are part of the Appendix (A-506) and have been provided to this Court.

Sheila Pouliot was in the midst of a natural dying process on December 27, 1999. Even though she was mentally retarded, Sheila had clearly-established constitutional rights to bodily integrity and to be free of governmental intervention that shocks the conscience. Factual evidence submitted in admissible form by plaintiff establishes the violation of those rights requiring a denial of defendants’ summary judgment motion.

POINT II

NEW YORK STATUTES AND REGULATIONS CREATE PROTECTED LIBERTY AND DUE PROCESS INTERESTS UNDER THE FOURTEENTH AMENDMENT

State statutes or regulations can create Federally-protected liberty and due process interests under the Fourteenth Amendment which are enforceable by a § 1983 action. The U.S. Supreme Court held in Hewett v. Helms , 459 U.S. 460 (1983):

Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States . a State may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory and regulatory measures.

Such Federally-protected rights are created in state statutory or regulatory measures that “use language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed..” Washington, et al. v. Harper , 494 U.S. 210, 198 (1990), citingHewett v. Helms , 459 U.S. 460 (1983). When an individual’s bodily integrity is involved, the U.S. Constitution mandates that any deliberate invasion of bodily integrity must comply with formalized procedural regularity, within the boundaries of Due Process. In re: Cincinnati Radiation Litigation , 874 F. Supp. 796 (S.D. Ohio 1995). The right of access to courts to redress such grievances and enforce rights is also basic to our system of government, and is protected by the Constitution. Chambers v. Baltimore & Ohio Railroad , 207 U.S. 142 (1907) [“The right to sue and defend in the courts is the alternative of force … Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution.”]

As set forth below, New York State’s formalized statutory and administrative scheme governing the proper procedures to be followed in obtaining medical consent for bodily invasions regarding mentally disabled individuals, utilizing language of “an unmistakably mandatory character,” along with the right to notice and a hearing in Court before initiation of court-ordered medical treatment mandated by Matter of Fosmire v. Nicoleau , 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990), created these Fourteenth Amendment due process and liberty interest rights for Sheila fully cognizable under 42 U.S.C. § 1983. These due process rights were essentially ignored by the District Court.

1.  NEW YORK MENTAL HYGIENE LAW “PROTECTION OF PATIENTS’ RIGHTS”

Article 33 of the Mental Hygiene Law of the State of New York addresses the rights of mentally disabled medical patients. Section 33.01 is designated as “Protection of Patients’ Rights,” and states:

Notwithstanding any other provision of law, no person shall be deprived of any civil right , if in all other respects qualified and eligible, solely by reason of receipt of services for a mental disability nor shall the receipt of such services modify or vary any civil right of any such person, including but not limited to civil service ranking and appointment, the right to register for and to vote at elections, or rights relating to the granting, forfeiture, or denial of a license, permit, privilege or benefit pursuant to any law.

Section 33.03 of the New York State Mental Hygiene Law guarantees that a mentally disabled person shall receive minimum levels of quality medical care and treatment, as follows:

(a.) Each patient in a facility and each person receiving services for mental disability shall receive care and treatment that is suited to his needs and skillfully, safely and humanely administered with full respect for his dignity and personal integrity.

(b.) Subject to regulations of the [New York State Office of Mental Retardation and Developmental Disabilities] commissioner, the director of a facility shall require the following in order to assure protection of patients in their care and treatment:..

4. consent for surgery, shock treatment, major medical treatment in the nature of surgery, or the use of experimental drugs or procedures.

See also , N.Y. Pub. Health Law § 2504. Regulations pertaining to these provisions and the medical treatment of a mentally disabled person such as Sheila Pouliot are set forth at 14 N.Y.C.R.R. § 633.11:

Section 633.11 Medical Treatment.

(a) Principles of compliance.

(1) Consent for professional medical treatment.

(i) In any case where professional medical treatment (see Glossary, section 633.99 of this Part) is proposed to be rendered to a person for which informed consent (see Glossary) would be required by applicable law, the chief executive officer shall ensure assistance in obtaining such informed consent by or on behalf of such person. In every case it shall be the duty of such chief executive officer to ensure that person is personally afforded an appropriate explanation of any proposed professional medical treatment..

(iii) Informed consent may be obtained for those persons who are residents of a facility operated or certified by OMRDD as follows: ..

(b) If a person is 18 years of age or older, but lacks capacity to understand appropriate disclosures regarding proposed professional medical treatment or a determination of insufficient capacity has been made pursuant to clause (d) of this subparagraph, informed consent shall be obtained from a guardian lawfully empowered to give such consent , an actively involved spouse, an actively involved parent, an actively involved adult child, a surrogate decision making committee or court of competent jurisdiction. Consent shall be sought for the proposed professional medical treatment from parties on this list in the order stated . [Emphasis added.]

The referenced “Glossary” term identified in 14 N.Y.C.R.R. § 633.11(a)(1)(i), above, defines “professional medical treatment” at 14 N.Y.C.R.R. § 633.99(dk), as:

[A] medical, dental, surgical or diagnostic intervention or procedure in which a general anesthetic is used or which involves a significant invasion of bodily integrity requiring an incision or producing substantial pain , discomfort , debilitation or having a significant recovery period , or any professional diagnosis or treatment to which informed consent is required by law.

Nothing could be clearer. State regulations track precisely the same language set forth in the cases cited in Point I, above. Obtaining informed consent before bodily invasion of a mentally-disabled person is mandatory in New York, and there is a formalized procedural requirement and mechanism in place for doing so.

2. NEW YORK STATE GUARDIANSHIP REQUIREMENTS FOR MENTALLY-DISABLED INDIVIDUALS

New York’s statutory scheme then goes further with regard to obtaining proper consent for a mentally-disabled individual prior to medical treatment.

Defendants, as the State’s attorneys, should have known, by statute and regulation, to apply to Surrogate’s Court to obtain a guardianship for Sheila, pursuant to Article 17-A of the New York State Surrogate’s Court Procedure Act, so that consent for medical treatment was obtained; see, Capital Investors Co. v. Executors of Morrision , 484 F.2d 1157 (4 th Cir. 1973) [attorneys are charged with knowledge of the law].

On December 30, 1999, defendant Thurlow finally made a last-minute application to the wrong court, under the wrong New York statutes, to belatedly obtain a guardian for Sheila so that the unauthorized medical treatment defendants had set in motion four days earlier could be ratifiednunc pro tunc . The Order to Show Cause application of defendants (A-273), sought a “permanent guardian” for Sheila Pouliot pursuant to Article 81 of the Mental Hygiene Law, and a temporary guardian ad litem pursuant to N.Y. C.P.L.R. § 1202.

Neither application was correct.

Only Article 17-A of the Surrogate’s Court Procedure Act governs guardianship for persons with mental retardation or developmental disabilities. It is markedly different from Article 81 of the New York State Mental Hygiene Law. The proceedings under Article 17-A can only be brought in the Surrogate’s Court, such guardianship is limited to persons with mental retardation and developmental disabilities, and the petition must be accompanied by medical expert certifications (SPA-39).

Section 1202 of the New York C.P.L.R. provides a guardian ad litem for the highly-limited purpose of prosecuting or defending an action where the disabled person is a party to the proceedings. Matter of Marilyn H. , 100 Misc.2d 402, 420 N.Y.S.2d 445 (F. Ct., N.Y. Co., 1979). Appointment of a guardian ad litem is a far less restrictive intervention than a commitment, guardianship, or conservatorship. New York Life Insurance Co. v. V.K. , 184 Misc.2d 727, 711 N.Y.S.2d 90 (N.Y.C. Ct. 1999). At the time of the application by the defendants, Sheila was not a “party” plaintiff or defendant in any action, therefore a CPLR 1202 guardian ad litem was insufficient to protect her rights, which defendants Spitzer and Thurlow — as the “State’s lawyers” — should have known.

However, in an illuminating coincidence just before and during the pendency of the Pouliot case, defendant Spitzer did properly seek a Court order for consent to perform surgery upon a mentally-retarded person. In the Matter of Dreythaler , 702 N.Y.S.2d 799 (Sup. Ct., Monroe Co., 2000), defendant Spitzer, on behalf of OMRDD, obtained an Order to Show Cause on November 1, 1999, pursuant to N.Y. Mental Hyg. Law § 33.03 and 14 N.Y.C.R.R. § 633.11(b), seeking informed consent for surgical dental treatment upon Fanny Dreythaler, a retarded adult resident of an OMRDD-licensed facility in the Finger Lakes area, before such surgery was performed.

Dreythaler is absolute proof that the defendants Spitzer and Thurlow understood the mandatory statutory scheme for obtaining consent by Court order before medical treatment began, which scheme creates a Federally-protected due process liberty interest under the Fourteenth Amendment; see, Washington, et al. v. Harper , 494 U.S. 210, 198 (1990); Hewett v. Helms , 459 U.S. 460 (1983). Further, the New York Court of Appeals has determined that applications for court-ordered medical treatment affecting important rights of a patient must comply with the due process requirements of notice and the right to be heard before any order is signed; seeMatter of Fosmire v. Nicoleau , 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990) [Nine hours between application for and execution of judicially-determined medical order was “ample time to provide notice and opportunity for a hearing”].

Defendants failed to comply with these formalized and mandatory New York rules establishing Sheila’s right to consent before any invasion of her bodily integrity, in violation of her Due Process rights; see , In re: Cincinnati Radiation Litigation , 874 F. Supp. 796 (S.D. Ohio 1995). Defendants cannot possibly argue that they did not know about these clearly-established, formal procedures, and therefore the decision by the Court below that qualified immunity applies was error.

POINT III

DEFENDANTS’ ACTIONS CONSTITUTED AN ARBITRARY AND UNREASONABLE FORM OF DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

Plaintiff has made a claim that defendants’ actions were violative of Sheila’s Fourteenth Amendment equal protection rights. The Equal Protection Clause embodies a general rule that all persons similarly situated must be treated alike. City of Cleburne, Texas v. Cleburne Living Center, Inc., et. al ., 473 U.S. 432, 439 (1985).

In the instant case, Sheila Pouliot has the following equal protection violation claims:

Patients in palliative or “comfort” care, where the focus is on improving the subjective experience of the terminally-ill patient for as long as possible before death, are in a different stage of medical care and medical protocol than those involved in the Storar and Cruzan cases,supra. Defendants failed to acknowledge or take that critical fact into account. Further, mentally disabled patients such as Sheila Pouliot in palliative, or “comfort” care are treated differently from those who are mentally competent and are receiving palliative care, which also violates the Equal Protection Clause;

Defendant Spitzer himself, through the operation of his office, addressed obtaining medical consent for mentally disabled individuals differently in different parts of the State of New York, as evidenced by In the Matter of Dreythaler , 702 N.Y.S.2d 799 (Sup. Ct., Monroe County 2000), a case contemporaneous with the Pouliot matter.

The Supreme Court has recognized that mentally-retarded individuals have fundamental rights, which include the right to medical care and safety and personal security; Youngberg, et al. v. Romeo , 457 U.S. 307 (1982). In addition, it is recognized that mentally-retarded people have been and will continue to be the subject of impermissible invidious discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment. City of Cleburne, Texas v. Cleburne Living Center, Inc., et. al ., 473 U.S. 432, 439 (1985). Competent individuals have a liberty interest in refusing unwanted medical treatment, including refusal of “lifesaving hydration and nutrition.” Cruzan v. Director, Missouri Department of Health, et al ., 497 U.S. 261 (1990); Vacco v. Quill , 521 U.S. 793 (1997). Mentally-retarded individuals have a right to be free from the unconsented-to forcible injection of medication into their bodies, the same as competent individuals. Washington v. Harper , 494 U.S. 210 (1990).

In Vacco v. Quill , 521 U.S. 793 (1997), the Supreme Court recognized for the first time the concept of palliative care for terminally-ill patients. Vacco acknowledged the right of a physician to administer “aggressive palliative care” to a competent, terminally-ill patient, including pain-killing drugs that may hasten the patient’s death, so long as the purpose and intent is to ease the patient’s pain. Id ., at 802.

Defendants Spitzer and Thurlow, by ordering treatment as they did on December 27, 1999, without a guardian appointed or a Court order issued, and insisting upon nutrition and hydration continuously thereafter, deprived Sheila Pouliot of fundamental rights as a mentally disabled person seeking or undergoing palliative medical care. Such palliative care would have been available to a competent citizen and should have been available to Sheila. The actions of defendants under color of law constituted an improper classification of and/or impinged upon Sheila’s fundamental rights as a mentally-retarded person, Graham v. Richardson , 403 U.S. 365 (1971). The policy defendants assert they were following in applying “life-saving” treatment to a dying patient already in palliative, “comfort” care without a guardian or Court order, thereby interrupting and terminating such palliative care, was not rationally related to any legitimate state interest, City of Cleburne, Texas v. Cleburne Living Center, Inc., et. al ., 473 U.S. 432, 439 (1985).

Further, defendants have steadfastly maintained, and the District Court held, that New York law does not permit any surrogate decision to withdraw life support from a never-competent patient.

Close examination of New York law discloses, however, that the supposed absolute prohibition on withholding of life support from a never-competent patient is not , in fact, absolute. The exception to the prohibition relates to availability of a do-not-resuscitate [“DNR”] order that precludes medical intervention in response to a patient’s cardiac arrest. Section 2976 of the New York Public Health Law allows a court to enter a DNR order where the patient “has a terminal condition, is permanently unconscious, or resuscitation would impose an extraordinary burden on the patient in light of the patient’s medical condition . and issuance of [a DNR order] is consistent with the patient’s wishes . or, in the absence of evidence of the patient’s wishes, the patient’s best interests.” In other words, New York permits withholding of cardio-pulmonary resuscitation [“CPR”] from an incompetent patient like Sheila Pouliot.

Defendants consistently fail to recognize this fact under New York law, as did the District Court. Defendants’ insistence that pursuant to Storar , absolutely no one is entitled to make end-of-life decisions for a never-competent person in New York is belied by the law. Imminently dying, suffering patients like Sheila have just as strong an interest in avoiding other forms of life support as they do in avoiding CPR. To the extent the State has an interest in averting arbitrary quality of life determinations by surrogates, its interest is just as applicable to DNR orders as to other forms of medical intervention. Defendants position in this regard, applied to their actions to Sheila, constitute arbitrary, irrational and unreasonable discrimination and is therefore unconstitutional under the Equal Protection Clause. See, Village of Willowbook v. Olech , 528 U.S. 562 (2000); City of Cleburne v. Cleburne Living Center , 473 U.S. 432, 442 (1985). The Court below erred in failing to recognize these claims.

POINT IV

THE DISTRICT COURT ERRED IN DENYING PLAINTIFF’S FIRST AMENDMENT CLAIM 

Defendants herein also violated Sheila’s First Amendment rights. The Supreme Court has stated that the First Amendment right to privacy includes “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe , 429 U.S. 589, 599 (1977). This right may overlap with an individual’s “right to privacy,” which is founded in the Fourteenth Amendment’s concept of personal liberty. Id ., at n. 23; Roe v. Wade , 410 U.S. 113 (1973). In Griswold v. Connecticut , 381 U.S. 479, 483, the Supreme Court stated: “[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion.”

In holdings directly applicable to Ms. Pouliot’s case, Federal courts have held that individuals have a First Amendment right in determining whether to accept treatment with antipsychotic drugs; see, Bee v. Greaves , 744 F.2d 1387 (10th Cir. 1984) [Plaintiff’s First Amendment rights infringed by forcible, unconsented administration of antipsychotic medication, which action is properly subject to suit under 42 U.S.C. § 1983]; United States v. Santonio ; 2001 U.S. Dist. LEXIS 8647 (D. Utah) [Government did not meet its “strict scrutiny” burden of demonstrating that forcibly medicating a defendant with antipsychotic drugs was narrowly tailored to serve a compelling governmental interest].

Sheila Pouliot had a First Amendment privacy right to make important decisions regarding her medical treatment, health, and safety. These First Amendment rights would have been protected by appointment of a guardian and obtaining consent prior to the forcible administration of treatment on Sheila by defendants. At the very least, pursuant to the First Amendment, Sheila was entitled to a strict scrutiny hearing — before medical treatment began at defendants’ direction — as to whether, on a clear and convincing basis, the medical treatment proposed on December 27, 1999, was properly tailored to serve a compelling governmental interest, and was the least harmful means of satisfying the government’s goal of “preserving” life. United States v. Brandon , 158 F.3d 947, 960 (1998); Vacco v. Quill , 521 U.S. 793 (1997); Matter of Fosmire v. Nicoleau , 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990). This was never done, and the District Court summarily and erroneously dismissed plaintiff’s First Amendment claims without any detailed factual or legal analysis.

POINT V

THE DISTRICT COURT ERRED IN DENYING PLAINTIFF’S FOURTH AMENDMENT CLAIM 

Defendants, acting under color of law and in constitutional terms, willfully and unreasonably seized and detained the person of Sheila Pouliot in order to physically subject her to unconsented invasive medical treatment, without a guardian or Court order in place to do so, which conduct was excessive, unreasonable and unnecessary physical force in violation of her Fourth Amendment rights.

The key case establishing a right to such a Fourth Amendment claim under 42 U.S.C. § 1983 is Brower v. County of Inyo , 489 U.S. 593 (1989), which states:

Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking [citations omitted], but the detention or taking must be willful. This is implicit in the word ‘seizure,’ which can hardly be applied to an unknowing act . In sum, the Fourth Amendment addresses ‘misuse of power,’Byars v. United States , 273 U.S. 28, 33 (1927), not the accidental effects of otherwise lawful government conduct. [Emphasis added]

The District Court, while quoting the first part of the above passage from Brower , omitted the line regarding the “misuse of power,” which lies at the heart of plaintiff’s Fourth Amendment claims. In Brower , the Supreme Court found that a roadblock without warning lights, without a policeman signaling, and around a blind corner constituted facts sufficient to establish an unreasonable seizure and constitutional violation under the Fourth Amendment.

The facts of Sheila’s seizure are much more compelling than those in Brower , as Sheila lay incapacitated and utterly unable to defend herself in a State hospital subject to oversight and control by defendants — the State’s top lawyers. See also , Murphy v. Lynn , 118 F.3d 938 (2 nd Cir. 1997) [“The Fourth Amendment protects against unreasonable ‘seizures.’ It is established that an unreasonable seizure by a state actor in violation of the Fourth Amendment may be pursued in a suit brought under § 1983.”]; Soldal v. Cook County, Illinois , 506 U.S. 56 (1992) [Protections of Fourth Amendment are available to citizens in both criminal, civil, and administrative settings and proceedings.]

The District Court below then went on to again cite Storar for the proposition that there could be no seizure where no party in New York has “the recognized right to decide that a patient’s quality of life has declined to a point where treatment should be withheld and the patient allowed to die” (SPA-13). However, as previously stated, Storar never reached the question of what to do in the situation of excessive pain, which also lies at the heart of plaintiff’s claims. This was error.

On December 27, 1999, and thereafter, defendants acted willfully and under color of law to seize Sheila, intentionally took advantage of her incapacity, took control of her person, and restrained her, thereupon unilaterally and against her physician’s advice directing invasive medical treatment without consent. This was an unreasonable and excessive use of force and misuse of power over an incapacitated citizen in violation of the Fourth Amendment; Brower v. County of Inyo , 489 U.S. 593 (1989).

POINT VI 

DEFENDANTS COMMITTED A BATTERY, AND THE DISTRICT COURT ERRONEOUSLY DISMISSED PLAINTIFF’S OTHER PENDENT STATE LAW CLAIMS

In addition to pendent survival State law claims in negligence, unlawful practice of medicine, and intentional and/or reckless infliction of emotional harm (A-13, 30 to 35), plaintiff contends defendants committed a battery by unilaterally ordering medical intervention on December 27, 1999, contrary to the wishes of Sheila Pouliot’s family and physicians. Defendants then persisted in their tortious conduct by continuously insisting — contrary to the wishes of family, medical staff, and (as of December 30, 1999) a court-appointed guardian — that artificial nutrition, hydration and antibiotics could never be withdrawn from a never-competent patient like Sheila.

This claim of battery is well grounded in the doctrine of informed consent, which precludes medical treatment — even life-sustaining medical treatment — contrary to the wishes of a patient or a patient’s representative. The New York Court of Appeals has extended this rule even to involuntarily-committed mental patients who refuse anti-psychotic medication. Rivers v. Katz , 67 N.Y.2d 485, 504 N.Y.S.2d 74 (1986).

In Sheila’s case, her sister, Alice Blouin, was acting as a conscientious natural guardian, and the attending physicians, hospital ethicists, nurses, clergy, and social workers all accepted Alice Blouin’s role as a conscientious natural guardian — while themselves independently agreeing on an appropriate medical course of comfort care for Sheila. The defendants’ unilateral intervention into Sheila’s medical care impelled an unconsented touching without authorization from the patient or a patient’s representative. If defendants believed that the medical course adopted by the natural guardian in conjunction with attending physicians was abusive, the proper course was to institute a judicial proceeding, a step that was not taken until days after the defendants’ unilateral order. See, Storar , 52 N.Y.2d at 369-70; Fosmire v. Nicoleau , 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990).

The recognized “emergency exception” to the requirement of informed consent does not apply in Sheila’s case. That exception might justify a physician’s decision to override a natural guardian’s resistance to life-sustaining treatment where the physician deemed the surrogate’s decision to be irresponsible and the patient would die before judicial relief could be obtained. This claim is not about a physician’s determination regarding an emergency situation, for in Sheila’s situation, the attending physicians shared the natural guardian’s conviction about the appropriate course of medical treatment (A-1644, 1649). This case is about lawyers or other non-medical personnel making medical care and treatment decisions for an incapacitated woman without obtaining a guardian or a court order — which is a battery not subject to any so-called “emergency exception.”

Nor does it matter that the disputed medical intervention in Ms. Pouliot’s case consisted, in part, of artificial nutrition and hydration [“ANH”] as opposed to other medical procedures. The courts have uniformly regarded ANH as an artificial means of life support whose use is determined by the same criteria (best interests of the patient) that guide other forms of medical intervention. See, e.g ., Cruzan , 497 U.S. at 288-89; Conroy , 486 A.2d at 1243; In re Brophy , 398 Mass. 417, 497 N.E.2d 626 (Mass. 1986); L.W. , 482 N.W.2d at 66.

The New York precedents upon which the defendants relied below for justification of their conduct are not dispositive of the instant case. In the Matter of Westchester Medical Center, on Behalf of Mary O’Connor , 72 N.Y.2d 517, 534 N.Y.S.2d 886 (1988) is distinguishable because: (i) it did not involve a terminally-ill patient (a person imminently dying); (ii) it did not involve a patently-suffering patient; and (iii) a proper application to the Court was made before any medical action was taken. According to the O’Connor court, Ms. O’Connor had suffered from several strokes but was not terminal, nor was dying imminent; her condition had stabilized and her life could be preserved for years. Id ., at 533. And in her moderately-responsive condition she was not experiencing pain. Id . at 533. Given those circumstances, the court was unwilling to allow a surrogate to make a quality-of-life judgment about the incapacitated patient, i.e., a judgment about either the intrinsic or social worth of the patient. Those circumstances, unlike the instant case, did not involve a suffering patient facing unavoidable death within a brief period, or excessive pain and suffering. O’Connor did not involve a situation where the burdens of continued care made withdrawal of life support in the incapacitated patient’s best interests. O’Connor did not, therefore, implicate an imminently dying person’s liberty interest in avoiding prolongation of a torturous dying process.

Matter of Storar , 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981), is also completely distinguishable. In Storar , the Court of Appeals determined that while the mentally-retarded, terminally-ill but medically stable patient was experiencing some discomfort when receiving blood transfusions, the “evidence convincingly shows that the transfusions did not involve excessive pain” (given the fact that medical treatment would preserve Mr. Storar’s baseline levels of physical and mental function). As set forth herein, the Court of Appeals in Storar expressly stated that the question of whether the “presence of or absence of excessive pain” would “be determinative with respect to the continuation of a life sustaining measure need not be reached under the facts of this case.” Id ., at 381, n.7. By contrast, Ms. Pouliot’s case involves both acutely-experienced, excessive pain and grievous deterioration below her baseline function levels. Dr. McGrail states under oath that Sheila Pouliot experienced significant and excessive pain as a result of the actions taken on December 27, 1999 (A-1646, 1649). See also, the videotape of Sheila taken on March 2, 2000 (A-506).

Plaintiffs submit that Sheila’s case involves the “excessive pain” to which Storar expressly did not speak. As such, reliance by defendants and the Court below upon Storar with regard to events on December 27, 1999, and thereafter was unsupported in fact and law.

Plaintiff need only show wrongful physical contact to maintain an action for battery. United National Insurance Co. v. Waterfront N.Y. Realty Corp ., 994 F.2d 105, 108 (2 nd Cir. 1993); Zgraggen v. Wilsey , 200 A.D.2d 818, 606 N.Y.S.2d 444 (3 rd Dept. 1994). In addition, there is no requirement of direct contact; see , N.Y. P.J.I., Vol. 2, page 27 (2001 ed.), citing De Santis v. Luger , 257 N.Y. 476, 178 N.E. 763 (1931). It is sufficient that the offending party set in motion the force that caused the contact. See, Hawkins v. Kuhne , 153 A.D. 216, 220, 137 N.Y.S. 1090 (2 nd Dept. 1912), aff’d 208 N.Y. 555, 101 N.E. 1104 (1913) [“[E]very person concerned in the commission of a tort or who, whether present or absent, directly or indirectly counsels, induces, procures, commands or orders another to commit it, is a principal and liable therefor.”] Thus, liability attaches to those who, like defendants Spitzer and Thurlow, by their authority induce or procure an order which causes a trespass upon another’s person; the request to act is adjudged to be “‘part and parcel of the act itself.'” Id , at 220. Had defendants desired to avoid such a battery, they should have gone to court first; see , Rivers v. Katz , 67 N.Y.2d 485, 504 N.Y.S.2d 74 (1986); Haynes v. Ambrose , 80 A.D.2d 963, 437 N.Y.S.2d 784 (3 rd Dept. 1981); Fosmire v. Nicoleau , 75 N.Y.2d 218, 551 N.Y.S.2d 876 (1990); N.Y. Pub. Health Law § 2976. This they did not do.

As such, defendants’ motion for summary judgment with regard to plaintiff’s pendent battery claim should have been denied by the Court below.

POINT VII

THE DISTRICT COURT CORRECTLY DETERMINED THAT THE DEFENSE OF ABSOLUTE IMMUNITY DID NOT APPLY, BUT ERRED IN DETERMINING THAT QUALIFIED IMMUNITY IS AVAILABLE TO DEFENDANTS IN THIS CASE

The District Court properly determined that defendants’ intervention on December 27, 1999, did not constitute “preparations to apply to Supreme Court for the appointment of a temporary guardian ad litem ” (SPA-8), but were actions that “began prior to the commencement of any judicial proceeding and they were not pursuant to any statutory obligation” (SPA-9). The Court correctly determined that absolute immunity does not apply. However, the Court did not follow through on the logic of that finding, and incorrectly determined that defendants’ actions were subject to qualified immunity.

DEFENDANTS WERE NOT ENTITLED TO QUALIFIED IMMUNITY 

Qualified immunity, as asserted by defendants, only protects government officials who perform discretionary functions from liability to the extent that their conduct does not violate clearly-established statutory or constitutional rights, or it was objectively reasonable for the official to believe the conduct did not violate the asserted right. Ayers v. Ryan , 152 F.3d 77 (2 nd Cir. 1998); Eng v. Coughlin , 858 F.2d 889 (2 nd Cir. 1988).

Qualified immunity is simply a defense, and a factual finding is essential to resolving the issue; disputed questions of fact regarding qualified immunity go to a jury. Kaminsky v. Rosenblum, et al ., 929 F.2d 922 (2 nd Cir. 1991). The Second Circuit allows a record to be made through discovery to resolve summary judgment motions concerning qualified immunity. See , Zahrey v. Coffey , 221 F.3d 342 (2 nd Cir. 2000); Kaminsky v. Rosenblum, et al ., 929 F.2d 922 (2 nd Cir. 1991); Lawson v. Abrams , 863 F.2d 260 (2 nd Cir. 1988); White v. Frank , 855 F.2d 956 (2 nd Cir. 1988).

Furthermore, “the chronic difficulty [of the qualified immunity defense upon summary judgment] analysis is in accurately defining the right at issue.” LaBounty v. Coughlin , 137 F.3d 68 (2 nd Cir. 1998). The question of whether law is “clearly established” turns on an analysis of whether “the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Williams v. Greifinger , 97 F.3d 699. 703 (2 nd Cir. 1996). A court need not have passed upon the identical course of conduct in order for its illegality to be “clearly established.” Id ., at 74; LaBounty v. Coughlin , 137 F.3d 68, 74 (2 nd Cir. 1998). Qualified immunity cannot be determined as a matter of law if material fact issues exist. Rivera v. United States , 928 F.2d 592 (2d Cir. 1991). The question of excessive force is one for the jury in a civil rights action such as this, and there is not qualified immunity as long as excessive force is an issue. Calamia v. New York , 879 F.2d 1025, 1035 (2 nd Cir. 1989). Qualified immunity will not shield a government lawyer who dispenses legal advice when such conduct “exceeds the permissible limits of discretion committed to the attorney.” Donovan v. Reinbold , 433 F.2d 738 (9 th Cir. 1970). In addressing qualified immunity by summary judgment, the evidence must be viewed in the light most favorable to the plaintiff and with all permissible inferences drawn in her favor. Williams v. Greifinger , 97 F.3d 699, 703 (2 nd Cir. 1996).

In the instant action, plaintiff has established that defendant’s conduct violated clearly-established statutory and constitutional rights, including, but not limited to, Sheila Pouliot’s right to bodily integrity, right to personal self-determination, right to have consent obtained for her before medical treatment, the right to be free from excessive use of force and misuse of power, and the right to palliative care. It was not objectively reasonable for defendants to believe that their conduct did not violate Sheila Pouliot’s First, Fourth and Fourteenth Amendment rights, or the contours of the same. LaBounty v. Coughlin , 137 F.3d 68 (2 nd Cir. 1998). As such, the District Court’s determination that defendants were entitled to qualified immunity was error. Id ., at 74.

POINT VIII

THE COURT BELOW ERRONEOUSLY RESOLVED ALL FACTUAL AND LEGAL INFERENCES IN FAVOR OF THE DEFENDANT MOVING PARTY WITHOUT COMMENT OR ANALYSIS OF PLAINTIFF-APPELLANT’S SWORN PROOF, IN VIOLATION OF FED. R. CIV. P. RULE 56.

It is customary for the parties and Courts to insert a pro forma paragraph or two regarding the proper procedure for determining a summary judgment motion. It is almost instinctual to gloss over it to get to the center of the analysis.

However, in the instant action, those authorities, the highly-proscribed burden-shifting mandate of Rule 56, and the failure of the District Court to abide by those requirements are of critical importance to appellant’s appeal.

This appellate court reviews the District Court’s grant of summary judgment de novo . Amaker v. Foley, et al. , 274 F.3d 677 (2 nd Cir. 2001). Rule 56 summary judgment is appropriate only if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Summary judgment is a drastic remedy that cuts off the right to have one’s day in court. Gary Plastic Packaging Corporation v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 756 F.2d 230 (2 nd Cir. 1985). “In considering the motion, the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried.” Knight v. U.S. Fire Ins. Co. , 804 F.2d 9, 11 (2d Cir. 1986).

In deciding the motion, all inferences and ambiguities are to be resolved in favor of the party opposing summary judgment. See, Danzer v. Norden Systems, Inc. , 151 F.3d 50 (2 nd Cir. 1998); Gallo v. Prudential Residential Servs., Ltd. Partnership , 22 F.3d 1219, 1223 (2d Cir. 1994). If there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party, summary judgment is improper. Chambers v. TRM Copy Centers Corp. , 43 F.3d 29, 37 (2 nd Cir. 1994).

Plaintiff submitted two affidavits in opposition from attorney Martha Mulroy, who was actively involved in the original proceedings. Ms. Mulroy’s affidavits establish that defendant Thurlow was responsible for directing the resuscitative measures on December 27, 1999, that he admitted receiving direction from defendant Spitzer, and that he relentlessly pressed for nutrition to avoid the bad publicity of a retarded woman appearing to “starve to death” in State care (A-270, 271, 1633).

Plaintiff also submitted an extensive affirmation in opposition from her expert physician, Kathleen McGrail, M.D. Dr. McGrail’s affirmation irrefutably establishes that defendants’ actions were contrary to the best interests of Sheila, and were the cause of her extreme and unnecessary pain and suffering (A-1636).

Incredibly, nowhere in the decision appealed from is there a single mention of either Martha Mulroy, Esq., or of Kathleen McGrail, M.D., nor is there any reference to their sworn testimony. The District Court simply adopted, wholesale, the factual assertions made by defendants as the moving party.

Further, defendant Spitzer never himself provided a sworn statement in support of his summary judgment motion, or in opposition to the sworn factual statements of Martha Mulroy. As such, defendant Spitzer has not provided any evidence or testimony in admissible form that rebuts plaintiff’s claims against him. And defendants never submitted an affirmation from any physician in support of their position, or contrary to the sworn statements of Dr. McGrail. Indeed, neither the defendants or the District Court engaged in any analysis of the critical, actual medical issues involved in this action. This is clear and prejudicial error.

In addition, the District Court repeatedly addressed plaintiff’s Federal constitutional analysis with reference to New York law, including Matter of Storar , supra, instead of directly analyzing the underlying Federal constitutional law. The Court of Appeals in Storar expressly stated that its holding did not reach the questions of “excessive pain” which are presented in this action.

Utilizing this flawed analysis, and impermissibly shifting the factual presumptions to the benefit of defendants, while ignoring plaintiff’s factual claims in their entirety, the Court below improperly granted summary judgment for defendants.

CONCLUSION

Based on the above, the Order of the District Court should be reversed in all respects other than the determination that defendants are not entitled to absolute immunity, or, as relief in the alternative, plaintiff’s pendent State claims should be remanded back to the New York Supreme Court for further proceedings thereon.

Dated: October 24, 2002

Respectfully submitted,

By: /s/ James E. Reid
James E. Reid, Esq.
GREENE & REID, LLP
Attorneys for Plaintiff-Appellant
173 Intrepid Lane
Syracuse, New York 13205
Telephone (315) 492-9665
Facsimile (315) 492-9741

1. The abbreviation “SPA” is used to designate the Special Appendix. The abbreviation “A” is used to designate the Joint Appendix.

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