This hybrid special proceeding was commenced pursuant to New York State Public Health Law § 2992(2)(3). It arises out of a pending Mental Hygiene Law Article 81 proceeding commenced on June 27, 2005 by the same petitioner. This Court granted the relief requested in the Article 81 proceeding to the extent the Petitioner was appointed Guardian of the Property of the Alleged Incapacitated Person, Albert Devlin, her husband and the Respondent, Albert Devlin's brother, remained the Health Care Agent pursuant to a valid Health Care Proxy executed on July 13, 2004. Furthermore, this Court ordered the Petitioner to maintain the existing health insurance on Albert Devlin to enable the Health Care Agent to perform his duties.

In this proceeding, the Petitioner seeks an Order of this Court overriding the Health Care Agent's decision to not remove the artificial life sustaining measures currently employed, namely, [*2]a respirator and feeding tube. In the alternative, the Petitioner seeks revocation of the Health Care Proxy and appointing the Petitioner Guardian of the Person of Albert Devlin with the authority to make all medical decisions including hydration, nutrition and life support. The Respondent opposes the relief sought and cross-moves for one-half of Albert Devlin's assets in order to undertake a search to determine the existence of any further medical treatment for Albert Devlin.

A hearing was held pursuant to Mental Hygiene Law § 81.29(d) and Public Health Law § 2992. Brian Braun, Anthony Strollo, Kathleen Strollo, Michael Scott Devlin, Alan Herbst, James Bollman, Kenneth Devlin, Robert Penders, Dr. Frederick Munschauer, III, and the Petitioner, Suzanne Devlin, testified at the hearing.

The credible testimony revealed that on May 6, 2005, during a surgical procedure at Roswell Park Cancer Institute to remove cancerous tissue related to esophageal cancer, Albert Devlin coded and as a result, suffered severe anoxic brain injury. He has not been conscious since that time and remains in a permanent vegetative state. He is on a respirator and is fed through a tube. His condition has remained stable but unimproved through the pendency of this proceeding. Albert Devlin left the authority in the Health Care Proxy to the Respondent to make all decisions relative to hydration, nutrition and life support. There is no Living Will or Do Not Resuscitate Order. Neither party disputes that Albert Devlin was competent when the Health Care Proxy naming the Respondent Health Care Agent was duly executed on July 13, 2004. In fact, the Petitioner was a witness to its execution. Furthermore, neither party disputes that Albert Devlin was diagnosed with esophageal cancer in March, 2004 and underwent a rigorous regimen of medical treatment to combat it.

In addition to expert medical witnesses, the witnesses called by the Petitioner were family members, including the Petitioner, Albert Devlin's son, sister, brother and his close friends. They all consistently testified that Albert Devlin unequivocally expressed his wishes not to languish on life support if he was in a situation where he could not enjoy a quality of life acceptable to him. The Petitioner testified that she and her husband discussed this issue at length both in private and in the Respondent's presence. Albert Devlin made reference to a paraplegic friend of theirs named Michael who was in a wheelchair as the worst quality of life that would be acceptable to him. All witnesses testified Albert Devlin would not want to live if he could not, for example, hold a gun as a sportsman would. Witnesses testified that Albert Devlin would not want to live if he was not useful or without good mental function. Witnesses also testified that Albert Devlin said he would not want to live like Terry Schiavo or Christopher Reeve, two individuals known to the public for their health issues. The Petitioner also introduced in evidence a letter signed by all of Albert Devlin's family members which urged the Respondent to respect Albert Devlin's wishes and disconnect the artificial life sustaining measures. No witness testified contrary to the Petitioner's position regarding Albert Devlin's wishes. Although the Respondent argued in summation that he and only he knew Albert Devlin's true wishes, he neither testified nor produced any evidence to controvert the evidence introduced by the Petitioner.

Dr. Frederick Munschauer, III, a board certified neurologist testified as an expert concerning Albert Devlin's condition. He was consulted by Roswell Park Cancer Institute on May 6, 2005, the day of the surgical procedure. He did not conduct a thorough physical examination of Albert Devlin because drugs in his system could have affected the results. It is [*3]his opinion that Albert Devlin suffered severe anoxic brain injury due to oxygen deprivation to the brain during the code blue. As a result, Albert Devlin is unable to purposefully and meaningfully control or interact with his environment. He further testified that the magnitude of this type of brain injury is proportional to the length of time the brain was deprived of oxygen or the level of oxygen that was supplied. His conclusion is that Albert Devlin, after the passage of more than a year since the surgical procedure, now suffers from a severe global brain tissue injury that is irreversible.

Pursuant to this Court's order, Dr. Munschauer conducted an independent medical examination of Albert Devlin on October 23, 2006 at Roswell Park Cancer Institute. A series of tests were performed by Dr. Munschauer to determine Albert Devlin's level of cognitive functioning. Albert Devlin did not respond in any way to stimuli such as loud or threatening sounds or movements. The only brain function Albert Devlin has is at the primitive brain stem level where his pupils constrict when light is shined in them. He has no visual perception without the cerebral cortex to interpret the stimuli. He also grimaces when painful stimuli is applied, but he feels no pain and does not suffer for the same reason. Dr. Munschauer also conducted a motoneuron sensory test where he pinched Albert Devlin hard in various areas such as the feet and hands and rubbed the sternum. No cortical interpretation was detected and there were no central nervous system depressants or any infection that could have influenced the results. He also interviewed the treating nurse to ensure his observations were consistent with hers over a longer period of time. The results of the examination led Dr. Munschauer to conclude that Albert Devlin has an intact brain stem which allows him very primitive brain function but what makes human beings different from lower life forms can never return to him because of the severe and irreversible nature of the cerebral cortex injuries. Dr. Munschauer's conclusion is that Albert Devlin is in a persistent vegetative state with no reasonable possibility of ever meaningfully interacting with his environment. The Respondent introduced no medical evidence to controvert the Petitioner's evidence despite being privy to all medical records and having access to all Albert Devlin's treating physicians.

Under Article 81 and specifically § 81.29(d) and Public Health Law § 2992(2)(3), the burden of proof the Petitioner must satisfy is by clear and convincing evidence, In re: University Hospital of State University of New York, 194 Misc 2d 372 (Sup. Ct. Onondaga County, 2002). A guardian under Article 81 has neither the power to revoke a valid Health Care Proxy nor appoint a successor Health Care Agent on the principal's behalf, In the Matter of Helen Lowe, 180 Misc 2d 404 (Sup. Ct. Queens County, 1999) and In the Matter of Morrey Barsky, 165 Misc 2d 175 (Sup. Ct. Suffolk Cty., 1995). Only the court can revoke a Health Care Proxy under Article 81 or Public Health Law § 2992 and only upon a showing of incapacity of the principal when executed or a showing the agent is unavailable or unwilling to act or has acted in bad faith, In the Matter of Susan Jane G., 33 AD3d 700 (2nd Dept. 2006), In the Matter of Nora McL. C., 308 AD2d 445 (2nd Dept. 2003) and In the Matter of Rochester General Hospital, 158 Misc 2d 522 (Sup. Ct. Monroe Cty., 1993).

Albert Devlin expressed his wishes consistently and unequivocally to his loved ones, his spouse, children, brothers, sisters, friends and colleagues alike, In the Matter of Westchester County Medical Center, ex rel. O'Connor, 72 NY2d 517 (1988) and In the Matter of Philip K. Eichner, 52 NY2d 363 (1981). There is some evidence the Respondent acknowledged he was [*4]not able to follow Albert Devlin's wishes in statements he made to Kenneth Devlin and Michael Scott Devlin. The Respondent's failure to provide any proof to the contrary or testify himself leads to an adverse inference that no such proof exists. This Court granted the Respondent's repeated requests for adjournments to secure the attendance of his witnesses despite admonishing him to be ready to proceed. This Court also permitted the Respondent's repetitive and argumentative cross-examination since he proceeded pro se and to ensure a fair hearing to both parties. During the eight (8) court days of hearing testimony and argument with both parties aware of the urgent nature of this proceeding, the Respondent was accorded great latitude in the interest of fairness and justice.

Furthermore, this Court has considered testimony that Albert Devlin was a thoughtful and contemplative man who deliberated before making important decisions. The Health Care Proxy he executed on July 13, 2004 was not specific in its enumeration of powers vested in the Respondent. He essentially left all medical decision making authority to the Respondent. Albert Devlin never modified the Health Care Proxy in the several months after its execution and prior to the medical procedure which precipitated his current condition despite ample opportunity to do so. While these facts militate against the Petitioner's position, their probative value is outweighed by the overwhelming evidence of Albert Devlin's wishes.

Therefore, the Petitioner has shown by clear and convincing evidence that Albert Devlin is in a persistent vegetative state without any realistic possibility of ever meaningfully interacting with his environment. The Petitioner has also shown by clear and convincing evidence that Albert Devlin, while competent, unequivocally expressed his wishes not to survive on life support in the condition he is currently in, In the Matter of the Application of Lucas S. Balich, 2003 NY Slip Op 51080(U), WL21649907 (Sup. Ct. Suffolk Cty. 2003) and that the Respondent is not acting in accordance with Albert Devlin's wishes.

Accordingly, with respect to the Petitioner 's request for an order overriding the Respondent's decision to continue life support, such relief is DENIED, notwithstanding the Petitioner's sustaining her burden by clear and convincing evidence that the Respondent is not acting in accordance with Albert Devlin's wishes; with respect to the Petitioner's request for an order revoking the Health Care Proxy and discharging the Respondent as Health Care Agent and amending this Court's Order under Mental Hygiene Law Article 81 naming the Petitioner both the Guardian of the Person and the Guardian of the Property of Albert Devlin, including the power to make all health care decisions regarding hydration, nutrition and life support, such relief is GRANTED, and with respect to the Respondent's request for an order providing him with one-half of Albert Devlin's assets, such relief is DENIED.

This decision constitutes the Order of this Court. This Order shall not be enforceable until 10 days from the date of its filing, namely, not until March 22, 2007.

DATED: Buffalo, New York

March 12, 2007

[*5]

Russell P. Buscaglia

Supreme Court Justice

GRANTED: