In the Matter of John Storar.

Charles S. Soper, as Director of Newark Developmental Center, et al., Appellants;
Dorothy Storar, Respondent.

In the Matter of Philip K. Eichner,

On Behalf of Joseph C. Fox, Respondent, v. Denis Dillon, as District Attorney of Nassau County, Appellant.
Dorothy Storar, Respondent.

Court of Appeals of New York
52 N.Y.2d 363; 420 N.E.2d 64; 438 N.Y.S.2d 26 (1981); cert. denied, 454 U.S. 858, 102 S.Ct. 309 (1981)


Prepared by Tony Szczygiel

John Storar and Brother Joseph Charles Fox, New York State residents, were diagnosed as fatally ill with no reasonable chance of recovery. Each was receiving life-sustaining medical care that would keep him alive for a limited period of time. Neither man had the capacity to decide on the course of medical services for himself. The state's highest court, the New York Court of Appeals, would use the differing situations of these two men to establish guidelines for continuing or terminating life-sustaining care for individuals who lack the capacity to decide for themselves. The guidelines would be further defined eight years later, in the case of Matter of Mary O'Connor, 72 N.Y.2d 517 (1989).

John Storar's Background

In Monroe County, New York, John Storar, a profoundly retarded 52-year-old man was diagnosed with terminal cancer of the bladder. John had been retarded since birth. He had a mental age of about 18 months and his IQ was assessed at between 10 and 20. He was unable to comprehend his medical problem or to make a reasoned choice of treatment. Since he was 5 years old, John had resided in the Newark Development Center, operated by the State Office of Mental Retardation and Developmental Disabilities. He was the only child of a 77-year-old widow who resided near the facility. She visited him almost daily.

Doctors discovered invasive, transitional carcinoma (cancer) of the bladder in July, 1979 from tests taken because blood was noticed in John's urine. Six weeks of radiation treatments put the cancer in remission. However, in early 1980, the cancer was diagnosed as terminal and incurable. By September, the cancer had metastasized to John Storar's lungs, with probable metastasis to his liver and brain. As described by the trial court judge:

Neither radical surgery, chemotherapy nor radiation are indicated as viable courses of treatment. Moreover, the bleeding of the lesions cannot be controlled by cauterization. Fulguration has been attempted on several occasions without success. There is, unfortunately, no known mode of treatment for Storar except to make him as comfortable as possible.
Medical experts agreed that John Storar had a very limited life span, generally estimated to be between 3 and 6 months. His physical condition was steadily deteriorating. He went from 150 pounds in March 1979 to 108 pounds in August 1980. He was weak, had diminished appetite and was subject to frequent attacks of nausea and vomiting. The physicians at the hearing were in agreement that cancer of the bladder is extremely painful.

John Storar was continuously losing blood, as a result of the bladder cancer. The facility began blood transfusions, as needed, in May. Within weeks, the transfusions normally consisted of two units of blood, and each transfusion took three to four hours.

The transfusions are painful, but not excessively so. However, because of Storar's mounting apprehension and manifest dislike of this procedure, a nurse has been giving him a shot approximately one hour before the transfusion to settle him down.

After several weeks, the patient's mother, who was also his legal guardian, refused consent on the ground that the transfusions would only prolong John's discomfort and would be against his wishes if he were competent. John disliked the transfusions and was frightened by the blood and blood clots that appeared in his urine after the transfusions. His mother wanted him to be comfortable.

The facility then sought court permission to continue the blood transfusions. It acted in the role of his treating physician, since no single doctor was responsible for John Storar's medical care at the state facility.

Brother Fox's Background

Brother Fox was an 83-year-old member of the Society of Mary. He had been in excellent mental and physical health, except for a sclerotic retina that rendered him about 85% blind. He sustained an inguinal hernia in the late summer of 1979, while working in a garden. During routine corrective hernia operation on October 2, 1979, Brother Fox suffered cardiac arrest. The loss of oxygen to the brain for up to eight minutes caused substantial brain damage. Brother Fox lost the ability to breathe on his own, and soon lapsed into a coma. The hospital put him on a respirator. His treating physician and two neurosurgeons agreed there was no reasonable chance of recovery and that Brother Fox would die in a vegetative state.

Father Philip K. Eichner, S.M., the local director of the society, asked that the hospital remove the respirator. This request was not opposed by Brother Fox's closest family, consisting of 10 nieces and nephews. The hospital replied that they would remove the respirator only pursuant to a court order. Father Eichner applied to the courts to be appointed as the committee of the person for Brother Fox, and for authority to direct that the respirator be removed. On January 24, 1980, Brother Fox died of congestive heart failure.

Case History

The two cases proceeded separately through the trial court level to the Appellate Division. In both cases, the court decisions were that the treatment should be stopped. However, the treatments were authorized to continue pending further appeal.

State Supreme Court Justice David O. Boehm, denied the facility's request to continue John Storar's blood transfusions and intravenous fluids. You can find his opinion at 106 Misc. 2d 880, 433 N.Y.S.2d 388 (Monroe Co. October 30, 1980). On November 13, 1980, the State Appellate Division, Fourth Judicial Department, upheld Justice Boehm's decision by a vote of 4 to 1. See, Matter of Storar, 78 A.D.2d 1013, 434 N.Y.S.2d 46 (4th Dept, 1980). The Appellate Division stated that:

We note that it is generally recognized that terminally ill competent adults, whose medical experts agree that cure cannot be effected even by extraordinary treatment which may at best give only a short extension of life, have an absolute right to decline to receive such treatment, absent countervailing State interests. We hold that on the request and plea of his mother who is his closest relative and committee, John Storar, a profoundly mentally retarded incompetent and terminally ill adult, has the same right to refuse such treatment, especially here where it is painful and will only prolong his suffering. This right the court must enforce [cites omitted].

The dissenter, Judge Cardamone stated:

Courts should not decide whether and when to discontinue the medical support system for a dying patient. This dilemma is part of the human condition too personal to extend beyond the decision of the family or guardian guided by the medical advice available....The use of terms such as "affirmative" or "passive", "ordinary" or "extraordinary" is a camouflage; they are distinctions without a difference. The root of the problem lies in an underlying Orwellian assumption that a court using substituted judgment is positioned -- like Big Brother -- to know what is best for the dying patient. In my view such is practical, legal and moral nonsense.

In Nassau County, Father Eichner was appointed as the committee of the person of Brother Joseph Charles Fox. Father Eichner stated that the respirator was against the patient's wishes as expressed prior to his becoming incompetent. Father Eichner had known Brother Fox since 1953. In 1976 the religious order actively discussed the Karen Quinlan case in light of the position on extraordinary medical treatments taken by the Catholic Pope and other religious leaders. Brother Fox agreed with the Papal statement and stated that he "would not want any of this extraordinary business * * * to be done for him." Two months prior to his entry into the hospital, Brother Fox repeated his statements that he would not want extraordinary life support systems if his condition were hopeless and would not wish the process of death to be prolonged.

The court held that Brother Fox was in a "chronic vegetative state", and authorized Father Eichner to terminate the respirator assisting Brother Fox. The judge stated that:

were he competent at this moment, he would order a termination of the life supporting respirator. The evidence, which was unchallenged at every turn and unimpeachable in its sincerity, compels this conclusion.
Further, the court concluded that "the common-law right of bodily self-determination permits a competent adult to refuse life sustaining medical treatment" where, as here, that right outweighed the State's interest in having the treatment continue. You can read this decision at 102 Misc 2d 184, 423 N.Y.S.2d 580 (Nassau Co. 1980). The Appellate Division, Second Judicial Department, modified and affirmed the decision. Matter of Eichner (Fox), 73 A.D.2d 431, 426 N.Y.S.2d 517 (Nassau Co., March 27, 1980).

At the highest level of the State Court system, the New York State Court of Appeals, the two cases were consolidated and considered together.

The Court of Appeals Decision


Since both men died before the Court of Appeals released their decision, the seven judge panel had to decide first whether they should continue with their review of the case and issue an opinion. The Court of Appeals, over the dissent of Judge Fuchsberg, held that the case was not moot since the issues would arise again. Judge Fuchsberg felt the cases "are already irrevocably concluded," so it served no purpose for the court to take on this difficult, and fact specific review. He voted to dismiss both cases, and he did not address the merits of either case.


The six judges, apart from Judge Fuchsberg, agreed on the outcome of terminating care for Brother Fox. Judge Wachtler wrote the majority opinion. Judge Jones wrote a concurring opinion to explain where his reasoning differed from the majority opinion, though he agreed with the result. Judge Meyer agreed with this section of Judge Jones' separate opinion.

The court reversed the decision to terminate care for John Storar. Five judges agreed on the result and reasoning expressed in Judge Wachtler's opinion. Judge Jones would have dismissed the case because the hospital was the wrong party to raise the issue. It had "at best only a tangential interest in the outcome of the litigation and can have no legitimate individual stake in the institution (or continuation) or the discontinuance of the medical procedure." Beyond that, Judge Jones felt there was no error of law in the lower courts' orders to terminate care given John Storar's circumstances.

Primary Holdings:

Judge Wachtler wrote the majority opinion. Chief Judge Cooke and Judges Jasen, Gabrielli and Meyer concurred in that reasoning. Judge Jones concurred in the result but wrote a separate opinion, and Judge Meyer concurred in Part I of that opinion. Judge Fuchsberg disagreed with the decision and wrote a dissenting opinion.
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