title: Judicial postponement of death recognition: the tragic case of Mary O'Connor.
abstract: A recent New York Court of Appeals decision seriously impedes the ability of incompetent patients to control their medical care. In the case of Mary O'Connor, the court virtually eliminated an incompetent's rights to bodily integrity and privacy. The court relied on formalistic evidentiary arguments to vitiate the patient's refusal of death-prolonging treatment. This Case Comment examines both the doctrine and policy underlying the O'Connor decision, suggesting that the court erred in its holding and reasoning. An alternative framework is presented, arguing that courts should honor competently expressed patient decisions concerning medical treatment. New York's highest court, instead, posited an incompetent patient who becomes competent for a moment to render a decision. This legal fiction is nothing more than a thinly masked technique for imposition of the judges' values on the patient. This Case Comment argues that in the absence of clear direction from the patient, family and loved ones generally should make care decisions for the patient.
authors.forename: D
authors.initials: D
authors.lastname: Gindes
mesh_terms: D000368:Aged; D001927:Brain Diseases / Q000628:therapy; D004750:Enteral Nutrition; D028741:Ethics Committees, Clinical; D004991:Ethics, Institutional; D006761:Hospitals; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence; D033222:Judicial Role; D008020:Life Support Care / Q000331:legislation & jurisprudence*; D008297:Male; D008875:Middle Aged; D009518:New York; D010332:Paternal Behavior; D026706:Paternalism; D010344:Patient Advocacy / Q000331:legislation & jurisprudence*; D010349:Patient Compliance; D026684:Personal Autonomy; D010817:Physician-Patient Relations; D026712:Value of Life; D035761:Wedge Argument; D028761:Withholding Treatment