Sungeun Grace Lee - Court Testimony of Action Requesting Temporary Restraining Order

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU : TRIAL TERM PART 2 ------------------------------------- x In the Matter of the Application of MAN HO LEE Index No. 130587/2012 Petitioner,
4 5 6 7 SUNGEUN GRACE LEE, 8 9 10 11 B E F O R E: 12 13 14 A P P E A R A N C E S: 15 16 17 18 19 20 21 22 23 24 25 For the Appointment of a Temporary Guardian of the Person and Property of
HEARING
An Alleged Incapacitated Person. ------------------------------------- x Mineola, New York September 28, 2012
HONORABLE THOMAS P. PHELAN J u s t i c e
FRANCHINA & GIORDANO, P.C. Attorneys for Petitioner 1050 Franklin Avenue, Suite 302 Garden City, New York 11530 BY: MARY P. GIORDANO, ESQ. THE GREENBERG, DRESEVIC, HINRICHSEN, IWREY, KALMOWITZ, LA SALLE, LEBOW & PENDLETON LAW GROUP Attorneys for North Shore University Hospital 1983 Marcus Avenue, Suite 106 Lake Success, New York 11042 BY: LORI A. LA SALLE, ESQ. DAVID A. SMITH, ESQ. Attorney for the AIP 500 Old Country Road, Suite 109 Garden City, New York 11530 LINDA VALLONE Official Court Reporter
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THE COURT:
Good morning, everyone.
The court has before it this morning an order to show cause and petition for the appointment of
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a guardian pursuant to Article 81 of the Mental Hygiene Law. The application was submitted initially to the special term judge the other day, who happened to be Judge DeStefano, who signed the order to show cause appointing a temporary guardian and, in addition, issuing a temporary restraining order restraining North Shore University Hospital from removing a breathing and feeding tube from the alleged incapacitated person, and that was set forth in the order to the extent of lasting through the hearing and determination. There is an application before me this morning in essence by Mr. David Smith, who has been assigned by this court as counsel to the alleged incapacitated person, to vacate and set aside that temporary restraining order. I have had an opportunity to conference the matter with the hospital's attorney, with Mr. Smith and Ms. Giordano, who is the petitioner's attorney, and there are some things that we still need to gather by way of information and still some
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conversations that the respective attorneys want to have with their respective clients. But in any event, there is difficulty with one of the physicians who is here present in staying and otherwise returning to court because of other obligations that physician has with regard to other patients. So with that in mind, I am going to permit the hospital at this point to call that doctor, and we'll take that doctor's testimony and then we'll
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recess so that the attorneys can continue to consult with their clients and otherwise do their investigation. MS. LA SALLE: Thank you, your Honor. I would
like to call Dr. Dana Lustbader to the stand. L U S T B A D E R , M.D. , took the witness stand
and after first having been duly sworn, testified as follows: THE CLERK: State your name and address for
the record and spell your first and last name. THE WITNESS: Dana Lustbader,
L-u-s-t-b-a-d-e-r, 300 Community Drive, Manhasset, New York, 11030. THE COURT: DIRECT EXAMINATION BY MS. LA SALLE: Go ahead, counsel.
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Q A Q residency? A
Dr. Lustbader, where did you at medical school? University of Wisconsin Madison. After you completed medical school, did you have a
I did an internal mid residency at NYU Bellevue
Medical Center. Q A Q When did you complete that residency? 1992. Did you have any further training after your
internal medicine residency? A Yes. I did a fellowship in critical care medicine
at St. Vincent's Hospital. Q A Q A And when did you complete that fellowship? 1994. Are you currently board certified? I am triple board certified in internal medicine,
critical care medicine, and palliative medicine.
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And do you currently hold a position at North Shore
University Hospital? A Yes. I'm chief of palliative medicine at North
Shore and LIJ as well as a medical intensive advisor. MS. LA SALLE: I will ask the court at this
time to recognize Dr. Dana Lustbader as an expert in her field. THE COURT: It's really not necessary.
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Does anybody object to the doctor's qualifications? MS. GIORDANO: MR. SMITH: THE COURT: BY MS. LA SALLE: Q Miss Lee? A Q In early September, around September 6th. Can you describe the facts and circumstances Dr. Lustbader, when did you first start to treat No, your Honor.
No objection your Honor. All right, fine. Go ahead.
surrounding her admission to North Shore University Hospital? A Yes. Miss Lee is a 28 year old with a brain tumor
and was admitted to North Shore Hospital around September 3rd or 4th with seizures and was brought to the intensive care unit. She was put on a life support machine at that time and transferred to the palliative care unit, which I am the director of, several days after her admission to North Shore. I began treating her in early September. life support machine. She was on a
The brain tumor was very advanced in
the brain stem, and she was paralyzed from the neck down, so she's on a life support machine that breathes for her, and her arms and legs and body do not move. Q Can you describe whether or not that brain tumor
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would interfere with her cognitive ability?
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It does not interfere with her cognitive ability
because the brain tumor is located in the lower part of the brain called the brain stem, specifically, the medulla, and it is part of the brain stem that interferes with her ability to breathe or move. But the thinking part and the speaking part
of the brain is not affected because that's higher up. Q A And what are the manifestations of that brain tumor? So the brain tumor causes seizure in her case and
paralysis from the neck down, so she's flaccid and she cannot move her arms or legs or body below the neck. pain. Her face moves, her mouth moves, and she communicates very clearly and consistently by mouthing words and with eyes, one blink yes, two blinks no. But her mouth is able to move very She can't sense
clearly and communicate effectively. Q Is she currently responding to any medication to
treat the brain tumor? A Q A No. Is she currently having any pain? She sometimes reports pain around the site of the
tracheostomy in the neck area and sometimes in the low back area, sort of diffuse pain from lying flat in bed. unable to move, so she just is lying in bed. Q A And is she being given any medication for pain? She receives some morphine periodically when she She's
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reports pain. Q How often would you say she receives morphine on a
daily basis?
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A Q A Q receiving? A
A couple of times a day. And what is the dosage of that? Two milligrams. Are there any other medications that Miss Lee is
Yes.
She's receiving fluconazole to treat a fungal
infection in the mouth. Q A thrush. What type of medicine is fluconazole? It's an antifungal. She has thrush, so that's for
She's getting Decadron, which tries to prevent the She gets four milligrams a day.
brain tumor from spreading. Carbatrol for seizure.
She gets Ativan for anxiety and also
to help the breathing machine to breathe better for her and relax her breathing muscles. She gets a bowel medicine of
Senna and sometimes Dulcolax to help the bowels function normally. Q Benadryl to help her sleep. Would any of those medications interfere with her
decision-making ability? A They could if we gave them all at one time, but they
have relatively short half lives, and so when we talk to her, we can talk to her when they're not given recently. But she's still very clear even after receiving those
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medications; she's able to communicate very effectively. Q receiving? A Q A Anywhere from one to three milligrams. And what is her prognosis? Right now the way the brain tumor is and with her And what is the dosage of Ativan that she's
being on a life support machine for the past month, most people with a brain tumor in this location live weeks to maybe a few months because they end up dying from pneumonia or ulcers or bedsores or other infections.
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Also, the brain tumor can grow, and as it starts to expand, it can cause the brain to herniate or swell, and when that happens, the blood pressure falls to a very low amount and the heart eventually stops from progression to brain death. Q Has Miss Lee ever been evaluated for her capacity to
make decisions? A Q A Yes. And who performed those evaluations? I have met her several times over the course of the
month and found her to have a thorough understanding of her condition and risks and benefits to treatments that are discussed with her, including discussions about a tracheostomy which was performed around the 21st of September and discussions about the breathing machine, medications that
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we're using to treat her symptoms. We've also called in a psychiatrist to assess her capacity in addition to our own assessment. Q And are you aware of what the psychiatrist's
findings were? A Q were? A His finding also concurred that she had the capacity Yes. And can you tell us what the psychiatrist's findings
for medical decision making. Q Can you describe how you are able to communicate
with Miss Lee? A She is very clear when she mouths words, and she's In
expressive in terms of tears, she's appropriately tearful. talking about her wishes to have the breathing tube removed
and knowing that she would die when the tube is removed, she's appropriately tearful.
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She mouths words.
We have an alphabet board that on a
difficult word she would point to letters and spell. Q Do you have an opinion regarding whether or not
Miss Lee can make a reasoned decision with respect to a medical decision? A Q A Yes. And what is your opinion? I think she can make her own medical decisions.
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Do you believe that she understands the risks,
benefits and alternatives of her decisions? A She certainly does. And in fact, she is very
tearful when she thinks about dying, but she consistently asks that the breathing tube be removed and she begs us to do that. MS. LA SALLE: THE COURT: I have no further questions.
Miss Giordano, any questions? Yes.
MS. GIORDANO: CROSS-EXAMINATION BY MS. GIORDANO: Q
Dr. Lustbader, when did you first have Miss Lee as
your patient? A I am the director of the unit, so I see all the But I met her around September 6th or
patients every day. 7th. Q
Were you at a meeting that was held on
September 13th with her brothers Danny and Paul and Dr. Frankenthaler or Dr. Riemer and Elizabeth Kriche? A Q A Q No. I don't recall that meeting.
Then I can't ask you about it. I am sorry. That's okay. Any of the medications that she's on,
do any of them have any impact on her reasoning? A They could have impact in large doses, but the doses
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that we're using don't have impact on her reasoning.
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And in fact, we withheld the medications on several occasions for many hours or even half a day to make sure there's no confounding variables when we have these discussions. Most recently two days ago we withheld all of
these medications. We certainly don't want her to suffer and make her uncomfortable, so we have to weigh it out, but we withhold the medications on several occasions to make sure, and the communications and choices are the same. Q And at that meeting Miss Lee said that she wanted to
have the tube taken out? A Q Yes. She says that every day.
The meeting that I discussed with you on
September 13th, did anyone ever speak to you about that meeting, any of the staff that I mentioned to you? A We discussed several meetings before September 18th
because on September 18th we did try to remove the breathing tube to see if she could breathe on her own, and we did several maneuvers to see if we could optimize her chances of breathing on her own, and we did take the breathing tube out and she was not able to breathe well enough on her own. And we had several conversations with her prior to September 21st about relocating the breathing tube from the mouth to the neck called a tracheostomy mainly so she could communicate better with us, that the tube should be out of her
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mouth and in her neck so that we could actually communicate more effectively with her.
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MS. GIORDANO: THE COURT: questions? MR. SMITH: CROSS-EXAMINATION BY MR. SMITH: Q A Q
I have no further questions.
Mr. Smith, do you have any
Yes.
Thank you, your Honor.
Good morning, doctor. Good morning. In the course of your interactions with Ms. Lee,
have you had occasion to ask her, in words or substance, if she wanted to go to a nursing home? A Q A Yes. And what do you recall asking her? I told her, talked to her several times, that we
have a nursing home that's willing to take her and that she would actually be going there, and she started to cry and asked to take the tube out. I don't want to go, take this
tube out, why won't you take the tube out, please, please, please. MR. SMITH: Your Honor, I have two photographs
that I, with my client's permission, took of her last evening that I would like to have marked at this time as AIP Counsel's 1 and 2.
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THE COURT: MR. SMITH:
Fine. I have copies for all counsel.
(AIP Counsel's Exhibits 1 and 2 were produced and marked for identification.) MR. SMITH: May I ask that the witness be
shown the photographs. THE COURT: Sure.
(Said exhibits were handed to the witness.)
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Doctor, please take a look at the two photographs
that have been marked for identification as AIP Counsel's 1 and 2 and tell us when you've completed looking at them. A Q A Q A Q Yes. Do you recognize the photographs? Yes, I do. What do you recognize them to be? This is Grace Lee, and they were taken last night. Do they accurately depict Grace's current
appearance? A Yes, they do. You can see in the photograph the
tracheostomy tube in the neck connected to a life support machine, and you can also see the feeding tube that's connected to her stomach providing her the artificial nutrition. MR. SMITH: Your Honor, I would ask that these
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exhibits be marked into evidence at this time. THE COURT: Any objection? No, your Honor.
MS. GIORDANO: THE COURT:
Any objection, counsel? No objection.
MS. LA SALLE: THE COURT:
Mark them.
(AIP Counsel's Exhibits 1 and 2 marked for identification were admitted in evidence.) THE COURT: Let me see them.
Go ahead Mr. Smith. BY MR. SMITH: Q Doctor, in the three weeks plus that Ms. Lee has
been at the hospital have you had occasion to observe any interactions between Ms. Lee and any members of her family? A Q Yes. And is there anything in particular that you have
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observed about that? A Certainly the family loves and deeply cares about It's a very,
the patient very much; that is not in question.
very devoted and loving family, particularly the parents toward their daughter. We've also noticed, though, attempts to block communication between the patient and the staff, especially as it relates to Grace's desire to have the breathing tube removed and that she be allowed to die.
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The parents sometimes block our ability to come into the room to speak with Grace about her preferences for treatment and also block the nurses' ability to sometimes come in and give Grace medication to relieve her suffering. Q Have the parents been able to converse with you
directly given the apparent language barrier? A Q with? A We have used an interpreter phone during family Yes. Okay. And how has that language barrier been dealt
meetings in Korean, and Grace's mother speaks some English and family members speak some English. And it must be stressed that this is a very loving and devoted family. Q In your presence have any of the family members
expressed directly to Miss Lee what they think of the decision that she is seeking to implement? A They've certainly expressed to us that they believe
that it's like suicide and euthanasia and that it's Satan's work and that I guess she would go to hell if it were to occur. Q And to your knowledge from your own interactions
with Miss Lee, have they been expressing those things directly
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to her? A Yes.
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Have you noticed any reactions from Ms. Lee in
response to being told those things by her family? A She closes her eyes and closes her mouth very tight
and just sort of collapses into her skin, like she closes herself off. Q Have you had occasion to discuss with Miss Lee how
ardently her family feels to the contrary from what she's expressing to you about removing the trach tube? A Q A Yes. And in those conversations what has she told you? She keeps repeating that she doesn't care and she
just wants the tube out, why won't I take it out, why, why, why. Q Have you expressed to her in words or substance that
her parents feel very strongly that her own religious beliefs, that is, Miss Lee's own religious beliefs would preclude her from doing so? A I don't know if I've discussed the religious beliefs
with her, but certainly her parents' desire that she go to a nursing home and that they continue this current treatment, and she repeats that she wants the breathing tube out. Q desire? A Q No. To your knowledge has she ever in your presence Has she ever in your presence expressed a contrary
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expressed that she wants the trach tube to continue in place through anyone else at the hospital?
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A Q
No. Have the parents ever professed to you that she
expressed to them that she wanted it to continue? A Q No. In conjunction with your evaluation of Miss Lee and
her ability to make decisions for herself, have you taken into account all aspects of her present condition? A Q Yes. Are you left, taking all those things into account,
to a reasonable degree of medical certainty with any doubt that Miss Lee can and is properly and with full capacity making decisions by and for herself? A That is correct. MR. SMITH: THE COURT: for the doctor? MS. LA SALLE: THE COURT: for the doctor? MS. GIORDANO: RECROSS-EXAMINATION BY MS. GIORDANO: Q The palliative care unit is for people -- what is Yes. I have no further questions. No further questions, your Honor. Miss La Salle, further questions
Ms. Giordano, further questions
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the palliative care unit for? A Palliative care unit is for patients with advanced
illness who are on life support or have complex pain and symptom issues. Q What kind of services are provided other than
medical services? A We take care of patients on life support machines, a
lot of patients with brain tumors were located adjacent to our neurosurgical ICU so we have a large number of patients with
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stroke and brain tumor and a lot of young patients with other complex issues, sickle cell and cancer. Q I am sorry, I didn't ask my question correctly.
I am not asking what medical services, but palliative care generally includes other we'll say supportive services, is that correct? A The palliative care is care provided by an inter-
disciplinary team, so we have a chaplain and a social worker and a doctor and a nurse on our team. Q So to your knowledge has anyone on that team spoken
to Miss Lee about her religious beliefs as it relates to the removal of we'll just call it life support? A with her. Q To your knowledge has he spoken to her about her We have a chaplain as part of our team who's met
religious beliefs as it relates to the removal of that
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support? A In his practice he would discuss the faith background
of any patient in our unit, yes. Q Have you had a conversation with him where he told
you he did? A Yes. MS. GIORDANO: Okay. I have no further
questions, your Honor. THE COURT: MR. SMITH: Anything further, Mr. Smith? No, thank you, your Honor. No further questions.
Thank you, doctor.
(Whereupon, the witness left the stand.) THE COURT: All right, you would like to take
a recess so you can continue the discussions that you were having, and then just let me know when
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you're ready to proceed. (At this time a recess was taken.) THE COURT: All right. There was something,
Miss Giordano, you wanted to add to the record? MS. GIORDANO: Yes, your Honor. In fact,
there are two things. The first is that Mrs. Lee's English is limited and her son has a better command of the English language, and he would like to translate
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for his mother in the back of the courtroom. THE COURT: All right. As long as he does
it quietly, as long as it's not disturbing the proceeding, I have no problem with that. MS. GIORDANO: I have been advised that my
client would like me to obtain trial counsel for this matter. THE COURT: When we get to the trial or the
hearing, fine, I have no problem with that. At this juncture we are going to continue with this application to vacate the TRO, and I am going to hear the medical witnesses and the other hospital witnesses who are here, okay? MS. GIORDANO: THE COURT: please. MS. LA SALLE: Keefe. K E E F E , M.D. , took the witness stand and I would like to call Dr. Brian Thank you, your Honor.
Counsel, call your witness,
after first having been duly sworn, testified as follows: THE CLERK: State your name and address for
the record and spell your first and last names. THE WITNESS: Certainly. I am Dr. Brian,
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B-r-i-a-n, Keefe, K-e-e-f-e from North Shore University Hospital in Manhasset, 300 Community
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Drive, Manhasset, New York, 11030. DIRECT EXAMINATION BY MS. LA SALLE: Q A Q A Q program? A Q A Q A Q I did. Where was that? At Harvard Longwood residency training in Boston. What type of residency was that? That was for general adult psychiatry. And upon completion of that did you participate in a Dr. Keefe, where did you attend medical school? At the University of Illinois. When did you graduate? 1998. After graduation did you participate in a residency
fellowship? A Q A I did. Two, in fact.
And what fellowships were they? I did one subspecialty fellowship in consultation
liaison psychiatry or so-called medical psychiatry, which pertains to specialty training for psychiatrists for the treatment of the medically ill. Q A And the second fellowship was where? Was at the University of Massachusetts, and that was
in forensic psychiatry.
And when did you complete your fellowship training?
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A Q A Q A Q Island? A
I completed the second fellowship in 2004. And are you board certified in psychiatry? I am, yes. And what are you boarded in? Both general psychiatry and forensic psychiatry. What is your current position at North Shore Long
I am associate chair in the combined Department of
Psychiatry. Q Miss Lee? A Q A I did, yes. And when did you consult with her? I was consulted by her treatment team this week, on Did you have an opportunity to consult with
September 25th. Q And what was the reason that you were called in for
consultation? A Her treatment team consulted me specifically for an
opinion related to decision making capacity for health care decisions. Q A Q Did you in fact meet with Miss Lee? I did. And prior to meeting with her did you determine
whether or not she was taking any medications that would have
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impaired her cognitive ability? A I did. In fact, I'm able to see the medications
that she's taking and the time at which those medicines are administered by looking at the online medical record within the computers in the hospital, and I specifically chose to go and see her at a time long after when she had received any tranquilizing medicines, in the morning at a time when I anticipated any sedating effects might have worn off.
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So in your opinion at the time that you consulted
with the patient was she impaired by medication? A Q In my opinion, she was not. Okay. And can you describe the consultation that
took place with Miss Lee? A Certainly. It's not uncommon for a psychiatrist
working in general hospitals, medical, surgical units to be called for assessing patients' decision-making capacity for a variety of reasons, most commonly in the hospital related to major mental illness and cognitive impairment associated with confusional states or dementia. In this case given the severity of the case and the nature of this case, the treatment team thought it important that another independent consultant be called in to evaluate the patient's decision making capacity. Q Miss Lee? And what were your findings with respect to
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When I met with her, she was awake, she was alert, She expressed a full understanding In fact, when I
she was cognitively clear.
of her -- of the situation of her diagnosis.
suggested -- when I confirmed with her, it's my understanding that you have cancer in your brain, she corrected me and said actually, my brain stem, and furthermore articulated her treatment plan as well as the options that lay before us in terms of going to a nursing home versus having her breathing tube removed. Q And did she indicate what her wishes were to you at
that point? A Q A She did. And what were her wishes? She said specifically that her preference was to
have her breathing tube removed.
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And describe how you were able to communicate with
the patient? A Well, as the proceedings today have shown through
photograph, she had her endotracheal tube, the tube that was in her mouth, removed several days before that and a tracheostomy placed, so I was able to read her lips as she articulated words. Q And did she have an understanding of what the
ramifications of removing the endotracheal tube were? A She did.
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Q A
And what did she communicate her understanding was? When I asked her specifically, are you aware of what
would happen if your breathing tube was removed, and she said clearly, I would die. Q And do you have an opinion regarding whether or not
Miss Lee has any type of underlying depression? A Q A I do. And what is your opinion with respect to that? It's my opinion that she suffers from neither a
major mental illness such as depression nor any cognitive impairment that would have precluded her from understanding the risks, benefits and alternatives of the treatment plan being offered. Q A And how did you form that opinion? By a combination of interviewing the patient and a
review of medical records as well as discussions with multiple members of the interdisciplinary treatment team. Q Are you aware that the family believes that the
removal of the endotracheal tube constitutes a suicide? A I heard that through our disciplinary meeting. The
family didn't say that to me directly. Q Did you communicate that to the patient at all when
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you met with her? A I communicated to the patient that it could be
observed that such diagnosis could be tantamount to suicide,
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and I asked her specifically what her response to that would be. Q A What was her response? Her response was she was making this decision
because she didn't want to live in the way that she was currently forced to live and that it wasn't her intention to kill herself. Q Do you have an opinion to a reasonable degree of
medical certainty as to whether or not Miss Lee has capacity? A Q A I do. And what is your opinion? It's my opinion to a reasonable degree of medical
certainty that the patient retains decision-making capacity for this matter. MS. LA SALLE: THE COURT: I have no further questions.
Miss Giordano. Thank you, your Honor.
MS. GIORDANO: CROSS-EXAMINATION BY MS. GIORDANO: Q
Doctor, have you seen any of the legal papers that
have been filed in this matter? A Q I have not reviewed them specifically, no. Were you aware of a family meeting with Grace on
September 13, 2012? A In fact, I wasn't consulted until September 25th.
Would you say that Miss Lee had capacity on
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September 13th? A I would have no way of knowing as I didn't evaluate
her on that day. Q So the issue maybe on that date she might have had
capacity but she certainly -- if she had capacity on the 25th, she could have had capacity on the 13th? A I couldn't offer a professional opinion as to her
decision-making capacity on a date long before I was asked to evaluate her. Q In your evaluation of Miss Lee did you talk to her
about her religious beliefs? A Q beliefs? A She did not bring up her religious beliefs during Not specifically. Was there any discussion by her about her religious
our meeting. Q You mention that you did not believe she was
impaired by medication? A Q that time? A Yes. With respect to potentially sedating Correct. Can you tell us what medication she was taking at
medication, she was on both clonazepam and lorazepam, and she had taken them that morning, although, again, I attempted
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I think successfully to structure my interview at a time when those medicines, when the morning dose would be wearing off. Q If you were advised that Miss Lee had written or --
strike that. If you were advised that there had been a meeting that Miss Lee said on the 13th that she wanted her family to make her medical decisions, do you think she would have had capacity to do that?
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Again, if I were able to evaluate the patient on the
13th, I could offer an opinion; but absent that, I couldn't. Q Have you talked to anyone else in the family about
her beliefs or this decision? A I attempted to speak with the patient's mother on
the day of the -- of my competency evaluation; however, I didn't ask specifically about the tenets of her religious faith. Q A What did you speak to her about? Whether she had had a history of mental illness, and
just any general items that she might have to add. Q A Didn't Mrs. Lee respond to that? Yes. Mrs. Lee said she didn't have a history of
treatment for mental illness and that she -- but she didn't offer anything with respect to specifics of her religious faith. Q You have not had a conversation with anyone about
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Grace Lee's religious beliefs? A Correct. MS. GIORDANO: Honor. THE COURT: MR. SMITH: CROSS-EXAMINATION BY MR. SMITH: Q Doctor, you've testified that you conducted a Exactly what are the Mr. Smith? Thank you, your Honor. No further questions, your
competency evaluation for Grace Lee.
component parts of the competency evaluation that you undertook for Miss Lee? A Generally speaking, with respect to decision-making
capacity evaluations I always meet and interview the patient, I always review all the medical records in front of me
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including the patient's treatment, including the patient's medications, including the patient's prognosis, and anything else that might be relevant to the decision-making process, and to the extent that I can, I attempt to interview collateral informants. Q Based upon your meeting with the interdisciplinary
team, did you know before going in to have a discussion with Grace Lee that the issue in question was going to be whether or not she had capacity to make decisions which in all likelihood, if implemented, would end her life?
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A Q
Yes. And did you take that factor into account when you
had your discussions with her? A Well, I didn't -- I guess I asked her de novo what I
is your opinion right now with respect to this matter. didn't preface it with I heard you've mentioned this to multiple people before. Q Of course.
But did you have occasion to ask her
specifically, in words or substance, whether she knew that if the trach tube was removed, what the consequences would be? A Q A Q A Q A condition. Q Is this the first time you've had occasion to I did. And what did she say to you? She said, I would die. And did you ask her what she felt about that? I did. And how did she respond? She said specifically, I don't want to live in this
evaluate a patient as to his or her life-sustaining medical treatment decision-making capacity? A Not my first time, no.
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Q A Q
Have you done that on more than 50 prior occasions? Probably somewhere between 25 and 50. Okay. And are there factors which you need to
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take into consideration when somebody is facing a life and death decision which would attune you to whether or not, for instance, they were depressed as a result of their own condition? A Q A Yes. And what kinds of factors are those? We often look at duration of symptoms, does the
patient have a history of treatment for severe depression or family history of depression or has this or has there been a -- is the patient's decision impaired by apparent paranoia or psychotic thinking. Q A Q In Grace Lee's case did you see any of that? I did not. Now, plainly Miss Lee has at this point substantial
physical functional limitations, correct? A Q Correct. You heard Dr. Lustbader's testimony that she's
essentially paralyzed from the neck down, is that correct? A Q A Q Yes. Is that also your understanding? It is. In your evaluation of Grace Lee, to a reasonable
degree of medical certainty can you tell his Honor whether you believe that she has any functional limitations which would impair her ability to make and implement her own medical
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treatment decisions? A I can say to the court that it's my opinion to a
reasonable degree of medical certainty that the patient does not suffer from mental illness or cognitive limitation that would rise to the level of significantly impairing her decision making. Q Is it your opinion to a reasonable degree of medical
certainty that when Grace Lee told you that she recognizes that she will die if the tracheostomy is removed and that that's what she wants, that she was expressing her own reasonable and rational decision? A Yes. It's my opinion that that is the case. MR. SMITH: THE COURT: No further questions, your Honor. Anything further, counsel? Nothing further.
Anything further, Miss Giordano? No, your Honor. You may step
MS. GIORDANO: THE COURT: down.
Thank you, doctor.
(The witness left the stand.) THE COURT: witnesses? MS. LA SALLE: Tracy Moore. T R A C Y M O O R E , took the witness stand and after first Yes. I would like to call Miss La Sallle, you have further
33 Moore-Direct by Ms. La Salle
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having been duly sworn, testified as follows: THE CLERK: State your name and address for
the record and spell your first and last name. THE WITNESS: M-o-o-r-e. Tracy, T-r-a-c-y, Moore,
I am at North Shore University Hospital,
300 Community Drive, Manhasset, New York, 11030. THE COURT: Go ahead, counsel.
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DIRECT EXAMINATION BY MS. LA SALLE: Q Ms. Moore, what is your position at North Shore
University Hospital? A Q I am the director of social work. In your position as director of social work have you
had occasion to speak with and be involved in the care of Miss Lee? A Q Yes. I was consulted on this case Sunday.
And what is your understanding of Miss Lee's current
medical condition? A My understanding is that she has a progressive brain
stem glioma, that she is currently requiring artificial ventilation to maintain life, and that she's at the hospital in our palliative care unit. Q A Why were you asked to consult on her case? Because I think that the role of the social worker
is to help families and patients at end of life and during
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serious illness, and I was asked to get involved because there seemed to be some discord between what the patient was asking and what the family was asking and I wanted to see if I could come in and facilitate consensus. Q And what was your understanding of what the patient
was asking for? A Q A After meeting with the patient? Yes. She was asking for us to remove the tracheostomy, to
remove the vent. Q entail? A Well, I introduced myself, and we spoke and we And what specifically did your conversation with her
agreed that -- she is able to mouth words -- we agreed that I
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would repeat the word back to her and she would validate if I had the right words by blinking once yes, twice no. The conversation -- she asked to remove it, remove it now. When I explained to her that, you know, we were coming in to meet with her and many people would meet with her, we wanted to understand what her wishes were, she said today, not tomorrow, remove it now. I asked her if she had expressed her wishes to her parents and her family. tearful. And she kept asking why, why, why not now. She stated yes and closed her eyes and became
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And did you have a sense that she understood what
she was asking for? A Q Yes. Did she understand the ramifications of what would
happen if that tube was removed? A Q In my opinion, I believe so. Did you specifically discuss what would happen if
that tube was removed? A At the time we did not specifically discuss it. As
we broached that topic, someone entered the room and we weren't able to continue that line of questioning. Q And did she discuss with you her parents' decision
regarding the removal of the tube? A No. Again, as we began that conversation, someone
entered the room, and we weren't able to continue the conversation. Q And were there any other times that you had a
discussion with Miss Lee regarding her desire to remove the tube? A I have not had an opportunity to interview her
personally privately to have further conversations.
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MS. LA SALLE: questions. THE COURT: CROSS-EXAMINATION
Okay.
I have no further
Miss Giordano.
36 Moore-Cross by Ms. Giordano
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BY MS. GIORDANO: Q Miss Moore, were you aware of a meeting that was
held on September 13, 2012 with Miss Lee and I believe Dr. Frankenthaler, Dr. Riemer and Elizabeth Kriche? A I became aware of this case on Sunday through an
e-mail from my colleague asking me to get involved and meet the family and the patient, so I wasn't involved until last Sunday. Q Were you advised of the meeting, did you see notes
about the meeting on September 13th? A I don't recall. I am sorry. There were a lot of
family meetings; I don't recall that one in particular. Q Do you have notes that you can look at that would
refresh your recollection? A Q you? A On Monday he told -- I did speak with him briefly, I did not bring any notes with me. Did Dr. Frankenthaler ever discuss this case with
and he shared that there was a conflict in beliefs between what the patient was asking and what the family was asking and asked me to intervene. Q And did you have a conversation with Dr. Riemer
about this case? A Q No. And Elizabeth Kriche, did you have a conversation
37 Moore-Cross by Mr. Smith
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with her? A Q No. Were you ever advised that Dr. Frankenthaler spoke
to Grace and that Grace had advised him that her parents and older brother needed to be involved in any kind of end-of-life decisions? MS. LA SALLE: THE COURT: Objection, your Honor.
I will take the answer.
You may answer. A me, no. MS. GIORDANO: Honor. THE COURT: MR. SMITH: CROSS-EXAMINATION BY MR. SMITH: Q You mentioned a few times in response to questions Mr. Smith? Very, very briefly, your Honor. No further questions, your Dr. Frankenthaler never had that conversation with
from Miss La Salle that someone entered the room and that precluded you from having further meaningful discussion with Miss Lee, do you remember that testimony? A Q A Q I do. Who was the person who entered the room? It was one of her friends, an old roommate. Okay. And was anything said or done specifically
38 Moore-Cross by Mr. Smith
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or was it just that because other people were there, you felt that you no longer had the privacy you needed? A As we were speaking, I asked Miss Lee if it was okay Her friend asked that we
if we continued the conversation.
don't do it in front of her because she did not -- the friend reported she did not want to participate and be present, and she felt that would upset the family and she asked me to honor
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that wish, and I agreed. Q Based upon the interaction that you did have with
Miss Lee were you able to develop an opinion as to whether she was, first of all, oriented to person, time and place? A Q A Q Yes. And was she? Yes. And did you have the ability based on your
interaction with her to evaluate whether she understood her medical condition? A Q A Q I believe so, yes. And did she? Yes. And were you also able to evaluate whether the
decision that she was proposing, that is to say, the cessation of the ventilator and the removal of the trach tube, was one that she had made by and for herself? A I believe she was clear in what she was asking for.
39 Proceedings
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She repeatedly asked for it and at times became frustrated and tearful that she needed to repeat it. MR. SMITH: THE COURT: No further questions, your Honor. Anything further, counsel? No, your Honor.
You may step down.
(The witness left the stand.) THE COURT: witnesses? MS. LA SALLE: MR. SMITH: I have no further witnesses. Miss La Salle, any further
And your Honor, I have no witnesses
to produce on the application to strike the TRO/I guess now it would be preliminary injunction as not meeting the elements of the three-prong test.
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THE COURT:
And Mr. Smith, it may be important
at this juncture to have on the record the statement that you made in conference relative to your meeting last night with your client. MR. SMITH: Thank you, your Honor.
As an officer of this court and in my client's absence from the courtroom because she cannot be transported here, I can report to the court as follows, and I did seek and obtain my client's authority to share with the court what I think clearly might otherwise be confidential, attorney-
40 Proceedings
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client conversations. I first familiarized myself by speaking with Ms. Giordano, by briefly speaking with Miss La Salle, and by speaking at some length with Dr. Lustbader, who testified here today, and two other physicians at the hospital, and those were Dr. April Caperna, who is the chief fellow, Dr. Sindee Weiss Domis, an attending on the unit, on the palliative care unit, and Dr. Lustbader, familiarizing myself with what the issues were, what the very real and prominent concerns of the parents were, and what my client had purportedly expressed repeatedly to various members of the staff. With that background, at approximately 5 p.m. yesterday -- no, pardon me, judge, it was approximately 4 p.m. yesterday I entered the onepatient room where Miss Lee is on the palliative care unit and observed as I entered that she was immobilized in bed and that her mom was soothing her on the bed with her, with her shoes off, cooing to her daughter, stroking her daughter and comforting
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her daughter, and clearly her daughter was deriving comfort from her mother's ministrations. A member of the staff at my request asked that my client's mom leave the room, and she did so, and
41 Proceedings
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I began to have a discussion with my client; and about two minutes into that the mother reentered the room, climbed onto the bed, and she doesn't speak very much English, but she was directing me repeatedly with the word out, out, to leave and had a copy of the restraining order in her hand and directed that I leave. Several members of the security staff entered the room and gently escorted her out, and I continued my interview with Miss Lee. Miss Lee was visibly
and rather severely agitated by the interaction between me and her mother and certain of the things that her mother was more or less shouting to her in the brief time after she reentered the room and before she exited, and I have no idea what those words were because they were all in Korean, but I do know that Ms. Lee was grimacing, crying, and just with her mouth, which she can only move her head, gesturing. I have no idea the content of that.
She regained her composure rather rapidly, judge, and I spent a total of probably 20 to 25 minutes with her, during which time I introduced myself as her lawyer. She mouthed very clearly. As the witnesses
have testified, although the trach tube prevents her
42 Proceedings
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from having her voice heard, she moves her lips and very clearly forms certain words, and I was able as the witnesses were to repeat those words back to Miss Lee in order to verify that I was getting right what she was telling me. Also, the method that she has with the hospital of one blink indicating yes and two blinks indicating no was utilized; however, she's also able, which I don't think there was any testimony about, to very vigorously shake her head no when that is something that she wants to indicate. I asked her no fewer than four times, separated out throughout the 20 to 25 minutes, whether she understood that her parents had commenced a court proceeding because they felt that if she decided that her trach tube should be removed, that they felt that this was something that was very, very wrong. understood that. I asked her on the same number of occasions whether she understood that her parents felt not only that this was very, very wrong but that in fact it would constitute suicide and that the words had apparently repeatedly been invoked, that she would burn in hell in the event that she implemented this She indicated that she
43 Proceedings
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decision, and with some visible trepidation and tears she indicated that yes, indeed she understood that that was her parents' position. When I then asked her if she had her own very strongly held religious beliefs, she nodded her head affirmatively and mouthed the word yes, and once
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again it was at least three or maybe four occasions in this time that I asked her that. I asked her that notwithstanding her own religious feelings and notwithstanding her parents' own very strongly expressed feelings about what the religious ramifications of her decision were, did she nonetheless want this breathing tube, the trach tube removed, and each time more forcefully and I would say with frustration she said yes, do it now, yes, do it now. And those were the exact words, and
I repeated those words to her each time to make sure that I was understanding her fully, and she confirmed those words. When I told her that due to my own schedule it appeared that -- not that it appeared that -that this court proceeding that was originally set to commence today, and I said tomorrow, being Friday, but rather would be on Monday, she said, no weekend, now. And when I say "she said," again, she
44 Proceedings
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formed the words, judge, and rather than repeat what I thought she was mouthing, I asked her to please mouth it again, and clearly it was no weekend, now. And then having checked it the second time, I said the words and she nodded her head vigorously and she said no more, now, and said so several times. So I then asked her, did she want me to go back to this court and tell the court that she insisted that I be heard on her behalf today and that she insisted that her decision to stop the trach tube be implemented at once, did she want me to do that, and she said very clearly and repeatedly, do it now. I told her I would, and she
14 15 16 17 18 19 20 21 22 23 24 25
said thank you now.
And that's the extent of my
recollection of our conversation. During approximately the last two to three minutes of our conversation we were joined by Dr. Lustbader, and I repeated the conversation that I had already had several times with my client for Dr. Lustbader's benefit and with my client's permission, and also with my client's permission, your Honor, I took the photographs and several others that I have and asked her permission to display them to this court, and that permission was granted.
45 Proceedings
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THE COURT:
Miss La Salle, is there anything
you want to say in terms of the hospital's position? MS. LA SALLE: Yes, your Honor. It is the
hospital's position that the patient, Miss Lee, has capacity to make her own medical decisions. The
state of law in New York is that a patient with capacity is entitled to make all decisions regarding their medical treatment, whether that is to withhold or withdraw treatment, and North Shore University Hospital respectfully requests that the TRO be withdrawn and that Miss Lee be authorized to make her own medical decisions. THE COURT: heard? MS. GIORDANO: Yes, your Honor. Miss Giordano, do you wish to be
Your Honor, it is petitioner's position that this is not within her religious beliefs and that she would not be making this decision. We have not yet been allowed to put on testimony, and I would respectfully request that we
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be allowed to appear at 2 o'clock and put on some testimony. Additionally, there was a meeting on September 13th where Miss Lee had discussed with Dr. Frankenthaler and some other staff, Dr. Sindee
46 Proceedings
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Domis Weiss, or I might have that backwards, and that her parents and brother were to make her medical decisions for her, that she was not thinking in her right mind. That document, your Honor,
attached to my petition as Exhibit A, which is in Korean, the family has translated it for me and that is what that document says. THE COURT: Well, there is no translation in
evidence or before this court. MS. GIORDANO: No, your Honor, but with
respect, I was just going to say that the court interpreter could translate it for this court. THE COURT: The issue here before me is
whether or not the temporary restraining order should be vacated. One of the predicates for a
temporary restraining order is that there is a high likelihood of success in terms of the merits of the action brought before the court. In order for you to succeed with this Article 81 proceeding, you need to prove incapacity, that is, by clear and convincing evidence that there is a functional limitation to attend to one's personal needs and to attend to one's property needs. The testimony before this court from the various medical people and health care providers
47
Proceedings
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is clearly that this person has capacity to make medical decisions, and they're asking that I vacate this TRO. Now, if you want to be heard with regard
to that, fine. Now, you said you want to produce witnesses. What witnesses do you want to produce? MS. GIORDANO: I would produce certain people
who are in the courtroom today, your Honor. Petitioner for starters. THE COURT: All right. With regard to these
issues in terms of, among other things, the likelihood of success relative to the underlying action? MS. GIORDANO: THE COURT: at 2 o'clock? MS. GIORDANO: THE COURT: Yes, your Honor. Two o'clock. Yes, your Honor. And you want to do that
Okay.
Fine.
(At this time a luncheon recess was taken.)
48 Paul Lee-Direct by Ms. Giordano
1 2 3 4 5 6 P A U L
AFTERNOON SESSION THE COURT: Good afternoon, everybody.
All right, Miss Giordano, do you want to call your witness, please. MS. GIORDANO: L E E , Your Honor, I call Paul Lee.
called as a witness on behalf of the
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petitioner, took the witness stand and after first having been duly sworn, testified as follows: THE CLERK: State your name and address for
the record and spell your first and last name. THE WITNESS: THE CLERK: THE WITNESS: New York, 11362. THE COURT: DIRECT EXAMINATION BY MS. GIORDANO: Q Mr. Lee, are you going to have the interpreter Go ahead, counsel. Paul Lee, P-a-u-l, L-e-e. Your address? 240-17 65 Avenue, Douglaston,
interpret my questions to you? A Q A Q A Q No, ma'am, there's no need. How are you related to Sungeun Grace Lee? I'm her older brother. How old are you? I'm 30 years old. What's your occupation?
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I'm a full-time minister, youth minister at Antioch
Missionary Church, and I am directing after-school program at the church. Q pastor of? A Q A Yes. Prior to Grace's illness how often did you see her? I saw her every time -- every weekend. On Saturdays And is that the church that your father is the
she will come for the worship team practice because she was the worship leader, and I'll see her on Sundays for the worship service, and we eat lunch together. Q A Have you seen her since she's been hospitalized? Yes, ma'am.
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Q A minister.
Did Grace teach at the church? Yes. She was -- see, I was the minister, youth
We teach to high school students, and she was my
partner; we rotated speaking the word of God to high school students. Q students? A Yes. A lot of the girls and the boys, they seemed She was the worship leader, so Did you ever see her interact with the high school
to follow her, look up to her.
a lot of the students that were interested in music and in worship, they would always spend a lot of time with her. Q Did she ever -- did you ever hear her speaking to
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the girls who might have told her about a problem they were having? A Yes. We had a lot of teenage girls -- see, I don't
know why, but our group, our youth ministry had a lot of students that were, like, having problems with their family, like their parents are divorced, and some of them were abused by, like, stepdads, stepmom, and they would often come to Grace for advice. And I believe a lot of the girls' questions were, like they wanted to give up on their life, they didn't know what to do with their life because things are so hard, no one is believing in them, no one trusts them, so those were the questions that they would ask Grace. Q A Did you ever hear her talk about suicide? If I'm remembering correctly, last year, around last
year in September there was the week, there was a Sunday that she was supposed to speak to high school students, and one of the main focus for that service was -- I guess because a lot of the girls were asking her about suicidal problems and giving up on the life kind of situations and, like, hurting
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themselves kind of situation, self-abuse, so she decide to speak on that matter, and I clearly remember, I really clearly remember that she spoke to all of us about how precious life is -MR. SMITH: Objection, hearsay, your Honor.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q happened? A Q
THE COURT: another question. constituted.
Well, all right, I will have The record will stand as
Ask your next question, please. Did Grace ever in your presence speak of your
faith's beliefs as it relates to suicide? A Well, whenever I had the hard time, the hardship, I
was thinking about committing suicide, and it was Grace that told me not to give up. It was her that really scolded me to
stop thinking about giving up on the life, and it was clear to me her belief about giving up on life is just not questionable. Q Were you present at a meeting at the hospital on
September 13th with Grace and staff of the hospital? A Q A Yes. Do you remember what occurred at that meeting? Yes. On the 13th I arrived to the hospital, and
before I got there I heard that there was some kind of issue about -MR. SMITH: THE COURT: Objection, hearsay. Sustained. Rephrase your
question, please, counsel. At the meeting you were at on September 13th what
So we had a statement, we had a statement that was
52
Paul Lee-Direct by Ms. Giordano
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made on behalf of Sungeun Grace Lee saying that she wants every medical decision to be made by the family, and the doctor, Frank -- I can't really pronounce his name, but Dr. Frank, and there was another doctor there and one more nurse along with all the other family members within that room where Grace was. The doctor asked Grace a question,
Grace, do you agree with the statement that is written here, and then I was there to read the letter to her in English, and she agreed -MR. SMITH: THE COURT: A And she agreed -THE COURT: Q A No, no. Next question. Objection, hearsay. Sustained.
Who prepared the statement? The mother prepared the statement, because -THE COURT: the question. No, that's enough. That answers
Next question, counsel. Your Honor, I would like to
MS. GIORDANO:
show Mr. Lee Exhibit A attached to the petition. THE COURT: wants. (A document was shown to Ms. Giordano.) MS. GIORDANO: THE COURT: Yes. Ask counsel if that's what she
Show it to the witness.
(Said document was handed to the witness.)
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THE COURT: in Exhibit A. counsel. BY MS. GIORDANO: Q
Okay, the witness has the petition Go ahead, what's your question,
Who produced that document?
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A Q produced?
The mother did and the family. Were you in the room when this document was
THE COURT:
It's a little unclear, counsel, by
what you mean by produced. MS. GIORDANO: THE COURT: phraseology. Q A Q A Were you in the room when the document was typed? No. Can you read that document to us in English? Yes. I -MR. SMITH: Objection, your Honor. The Written out, typed.
Ask the question in that
document on its face, the few words that are in English, appears to be hearsay because it appears that it is a document that purportedly expresses words of my client. The only English words on it
are the date of September 13, 2012 and the name Sungeun Grace Lee. And it's clear already from the testimony that
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whoever data entried what is Exhibit A, it obviously was not my client. THE COURT: Do you want to be heard, counsel? Yes, your Honor. Mr. Lee has
MS. GIORDANO:
testified that this document was shown to, I will just call her Grace, your Honor, Grace Lee, and that she in his presence agreed that that was her statement of wishes. MR. SMITH: And I objected on hearsay grounds
and that was granted. THE COURT: BY MS. GIORDANO: Sustained, yes.
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Q A Q A Q A Q A
How often do you visit Grace in the hospital? Every day. Did you visit her this week? Yes. Did you visit her on September 25th? Yes. Did something occur that was unusual? Yes. I went inside the room to tell Grace about She often wants me to
what happened, like what's going on.
come and update her because she says that -MR. SMITH: THE COURT: Q You can continue. Objection, hearsay. Sustained as to what she says.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A A
THE COURT: She -THE COURT: admissible.
What did you do?
Not what she said.
That's not
Tell us what you did or what you said.
I went inside to ask her if everything's okay,
everything is comfortable, and she said something -MR. SMITH: THE COURT: Objection, hearsay. Sustained as to what she said.
Next question, counsel. BY MS. GIORDANO: Q A Q A Q A Q A Q Did you take a picture that day? Yes, I did. And how did you take that picture? With my phone. And you still have it on your phone? Yes, I do. And what is the picture of? It was Grace's left arm. Why did you take that picture?
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Because she asked me to remove the pillow -MR. SMITH: THE COURT: Objection, hearsay. Sustained.
Did Grace ask you to take an action? MR. SMITH: response. Objection, calls for a hearsay
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A
THE COURT:
Sustained.
What if any actions did you take? I tried to help her by looking for the pillow that
she says was underneath her -MR. SMITH: THE COURT: Objection, hearsay. Sustained. I don't know what the Can we move
relevancy of this is anyway, counsel.
to something that's relevant to the issues that we are here that we have to decide here? MS. GIORDANO: that -THE COURT: Counsel, ask the questions. Don't The relevance, your Honor, is
make the argument. Ask the questions that are relevant, and if there are objections, I am going to rule on the objections. We need to move ahead in that fashion.
And the statement, Exhibit A, which is I assume typewritten, it's certainly printed by some sort of device, it's not handwritten or hand printed, and the only English as counsel indicated is the alleged incapacitated person's name in two different places, and there certainly isn't any formal translation that has been offered to the court. But in any event, let's move on.
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BY MS. GIORDANO: Q When you visit your sister, does she seem -- how
does she seem to you? A Q Uncomfortable. Do you speak to her of events outside of the
hospital, things going on in the world? A Q Yes. Did you ever discuss with her the removal of the
respirator? A Q A Yes, I did. Did you give her your opinion regarding the removal? I didn't give her my opinion. I gave her the pastor
that she attended the church to, the pastor that she really dearly respect, that she was really asking me to reach out to, I gave her that pastor's opinion because it was important to her. Q Were you at a meeting with Dr. Frankenthaler and
other family members and Grace? THE COURT: Q A Q Excuse me. Yes. Was it the consensus after that meeting of who would When, counsel?
On September 13th?
make decisions for Grace? A Yes. After the meeting the family was supposed to
make all the decisions for Grace because Grace was concerned
58 Daniel Lee-Direct by Ms. Giordano
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that she would not be able to make the right decision in the times of confusion because of her depression. MS. GIORDANO: I have no further questions for
this witness, your Honor. THE COURT: Counsel, questions?
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MS. LA SALLE: THE COURT: MR. SMITH: THE COURT:
I have no questions.
Mr. Smith? No questions, your Honor. Thank you, sir. You are excused.
(The witness left the stand.) THE COURT: Your next witness, Ms. Giordano? I call Daniel Lee.
MS. GIORDANO: THE COURT:
Come on up here, please.
L E E , called as a witness on behalf of the
petitioner, took the witness stand and after first having been duly sworn, testified as follows: THE CLERK: State your name and address for
the record and spell your first and last name. THE WITNESS: Daniel Lee, D-a-n-i-e-l, L-e-e,
240-17 65th Avenue, Douglaston, New York, 11362. THE COURT: DIRECT EXAMINATION BY MS. GIORDANO: Q A How are you related to Grace Lee? Oldest brother. Go ahead, counsel.
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Q for you? A
Mr. Lee, do you want the interpreter to translate
Yes. THE COURT: interpreter. Let's have the interpreter sworn first, please. THE CLERK: Do you solemnly swear or affirm Come on up here, madam
that you will well and truly interpret between the court, the attorneys and the witnesses from the English language to the Korean language and from the Korean language to the English language to the best
13 14 15 16 17 18 19 20 21 22 23 24 25
of your ability, so help you God? THE INTERPRETER: THE CLERK: I do.
Please state your name and spell
it for the record. THE INTERPRETER: Hae Jung Lew, H-a-e,
J-u-n-g, last name is L-e-w. THE COURT: Go ahead, counsel. Thank you, your Honor.
MS. GIORDANO:
(The witness now testified through the interpreter as follows.) BY MS. GIORDANO: Q A And where do you reside? 240-17 65 Avenue, Douglaston, New York, 11362.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
Where are you employed? THE INTERPRETER: church. Right now he works at the
And what church is that? THE INTERPRETER: Antioch Missionary Church,
the same church as his father. Q A Q And what denomination is that? Assembly of God. And what is your position there? THE INTERPRETER: Q He teaches students.
Did you see Grace at church? THE INTERPRETER: Yes, he did.
A Q A Q A
Always, yes. Did she work there? She didn't work there. She just volunteered there.
What role did she have at the church? Teaching kids, kids who rebel, bring them to church
and pray with them, for them and support them. THE INTERPRETER: There's a lot of different
20 21 22 23 24 25 Q church? A Q
things, but he doesn't know if he should list all of them. Is it enough to say she was very active in the
Very active. Did she ever talk to you about suicide?
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A Q
Yes. Is it the beliefs of your faith that removal of the
feeding tube -- excuse me, the respirator -- would be a suicide event? MR. SMITH: THE COURT: Objection, irrelevant. Sustained. Your Honor, her beliefs
MS. GIORDANO: regarding -THE COURT: ask her belief.
It's not her belief.
You didn't
You asked the tenets and the That objection is
principles of the church. sustained. Q suicide? THE INTERPRETER:
Did you ever speak to Grace about her view of
Of course, he talked about It seems to
it a lot and also with his friends too. be a hot topic.
Everybody was having a very hard
time, and at that time whenever they spoke, Grace was always there to support them. MR. SMITH: THE COURT: Next question. Q Were you part of a meeting at North Shore University Objection, hearsay. No, I will let the record stand.
Hospital on September 13th of this year? THE INTERPRETER: He was.
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Q A
Who else was in the room? The two doctors, Dr. Frankenthaler, Dr. Riemer, and
a nurse, Elizabeth Kriche, and the two parents and myself and my younger brother and Grace. Q A What did you talk about at that meeting? The two doctors were asking Grace, and the rest
were witnesses, asking -- the two doctors asked Grace, do you ask -MR. SMITH: THE COURT: said. Next question, please, counsel. Q A Q A Q A Q A Did you take any notes at that meeting? Yes. Were those notes given to your mother to type? No. My mother took the notes herself. Objection, hearsay. Sustained as to what the doctors
How often do you visit Grace in the hospital? Every day. Have you ever -- have you seen a change in her? A very drastic change. I couldn't believe anything
because the change was so drastic. MS. GIORDANO: I am sorry, I missed that. The change was so drastic,
THE INTERPRETER:
he couldn't believe it. Q Are you talking about physical changes?
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A changed. Q
Physical and mentally, everything totally just
How did you -- what did you observe about her
behavior that you thought she was mentally different?
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 win. back.
THE INTERPRETER: the question. THE COURT:
He is trying to understand
Please have the question read
(The last question was read back as above.) THE INTERPRETER: There's a lot. If he says
anything, then he's afraid it's all going to be objected because Grace said this, object; Grace said this, object. THE COURT: that you can. Just answer the question the best What did you observe? When there is something here,
THE WITNESS:
she says it's not there and when there is something here -MR. SMITH: THE COURT: overruled. BY MS. GIORDANO: Q What did you see yourself as a difference in Grace? THE INTERPRETER: Grace is trying to fight and Objection. I will take it. The objection is
Next question.
There's chemo, there's radiation and then
64 Daniel Lee-Cross by Mr. Smith
1 2 3 4 5 6 7 8 9 10 11 A
there's the ones that she takes by mouth, and she always smiled, even when she was going through that, and he knows for a fact how hard it was on her. His friend also died from cancer and he's a really tough guy, and when he had chemo and radiation, so he knows through his friend too how hard it was for him and for her. But my sibling, my little sister, every time she was
taking the chemo, the radiation, she never frowned, she always was bright. Every time I see that, I can't believe the
situation right now.
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Q A
So there was a big change? It's not even a big change. It's just something
that is not even believable. MS. GIORDANO: your Honor. MS. LA SALLE: THE COURT: MR. SMITH: CROSS-EXAMINATION BY MR. SMITH: Q
It can't even happen like this. I have no further questions,
I have no questions.
Mr. Smith. Thank you, your Honor.
Mr. Lee, were you present in court this morning when
Dr. Lustbader testified? A Q Who is Dr. Lustbader? The first doctor who testified.
65 Daniel Lee-Cross by Mr. Smith
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A Q A Q A
The shortest? Yes. Yes. Did you hear all the questions that she was asked? Yes. THE INTERPRETER: He didn't understand and he
didn't hear because the translator, the interpreter only explained to my father. THE WITNESS: understand it. Q Did you hear her testify that your sister has But sometimes, sometimes I
between weeks and months to live? A I heard that. Even since the first time we went to
the hospital and we met another doctor, that was what was said, even from the very beginning. but I heard that too. Q things? And do you believe the doctors when they say those Of course I knew that,
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I don't believe them. MR. SMITH: THE COURT: No further questions, your Honor. Anybody else? I have no questions. Thank
MS. LA SALLE: THE COURT: you.
You may step down, sir.
(The witness left the stand.)
66 Jin Ah Lee-Direct by Ms. Giordano
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J I N A H
THE COURT:
Ms. Giordano. Your Honor, I would like to
MS. GIORDANO: call Mrs. Lee. THE COURT: with counsel.
Leave those papers on the table
THE INTERPRETER: THE COURT: testify. L E E ,
She wants to see them. Come up and
No, she doesn't.
called as a witness on behalf of the
petitioner, took the witness stand and after first having been duly sworn, testified through the Korean interpreter as follows: THE CLERK: State your name and address for
the record, and spell your first and last name. THE WITNESS: J-i-n A-h L-e-e, 240-17 65th
Avenue, Douglaston, 11362. THE COURT: Go ahead, counsel. Thank you, your Honor.
MS. GIORDANO: DIRECT EXAMINATION BY MS. GIORDANO: Q Mrs. Lee, how are --
(At this time the witness put her head down and cried.) MS. GIORDANO: your Honor? Maybe we can have five minutes,
67 Jin Ah Lee-Direct by Ms. Giordano
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THE COURT: minutes.
Okay.
Let's take a break for five
The witness may step down.
(At this time a recess was taken.) THE COURT: witness. You are going to call your next
Let's have the petitioner in here. I am ready to move
Call your next witness. ahead.
I don't want to be like that; this is a very Have her wait outside. Just have
sensitive thing. her wait outside.
For the record, I can understand that Mrs. Lee is very, very upset. This is a very sensitive -This is a very,
have a seat, madam interpreter.
very sensitive matter and a very difficult matter for everybody, and I understand that and appreciate that. But I also appreciate the person who is lying
in the hospital bed. Now, are you going to have Mr. Lee testify? Please have him come in and we'll take his testimony. With regard to Mrs. Lee, I understand how upset she is. If she is unable to testify, I will
permit you to put a statement on the record as to what she would testify if in fact she could testify, is that understood? MS. GIORDANO: Yes, your Honor.
68 Man Ho Lee-Direct by Ms. Giordano
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THE COURT:
Good.
Let's continue, please. She told me outside that she
THE INTERPRETER:
is going to try her best to calm down because she wants to tell the judge --
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M A N H O
THE COURT:
Fine, she can do that and you can
discuss that with Mrs. Giordano after we hear the next witness's testimony. MS. GIORDANO: THE COURT: Your Honor, I call Pastor Lee.
And again, I understand how I am not
upsetting this is to everybody concerned. insensitive to that at all.
L E E , the petitioner herein, took the witness
stand and after first having been duly sworn, testified through the interpreter as follows: THE CLERK: the record. THE WITNESS: THE CLERK: THE WITNESS: New York, 11362. THE COURT: DIRECT EXAMINATION BY MS. GIORDANO: Q Pastor Lee, are you the petitioner in this Go ahead, counsel. M-a-n H-o L-e-e. Your address? 240-17 65 Avenue, Douglaston, State your name and address for
proceeding?
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A Q A Q A Q A Q A Q
Yes. Is Sungeun Grace Lee your daughter? Yes. How old is she? Twenty-eight. Is she in the hospital? Yes. What hospital? North Shore Hospital. You've heard the testimony today regarding her
medical condition?
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A Q
Yes. Is there anything you would add to the testimony
about her medical condition? A Q A Yes. And what is that? I raised my daughter for 28 years. She had a tumor. She's very smart She had a very
and clear about everything.
hard shock, and she fell into a very, very deep depression. The difference between before she had this condition and after is very big. My daughter is very smart, but right now There is a reason for that. She continuously had to take
she is not happy about anything. There is all these medications.
all these medications, and through all that medication she tremors her lips constantly and her eyes are always twitching.
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She can't open them well, and the eyes are half open.
She
cannot talk and she cannot breathe and she cannot move her hands or feet. At this hospital since the medication that is the same dose as how a big strong guy would take is administered to my tiny, little, weaker daughter, it's very difficult for her to handle. Four days ago nurse Elizabeth raised the dose of the She brought
Ativan from 0.1 to one mil without her consent. three mil.
My daughter didn't want the three mil -MS. LA SALLE: THE COURT: Objection Just continue. She didn't want
Overruled.
A morphine.
Also a narcotic type -- morphine.
MS. LA SALLE: A
Objection. Therefore, she gets
They injected her with it.
dependent on it more and more. Last night after dinner I went to her. wife a little late, after dinner. I went with my
Nurse Elizabeth, morphine
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and amongst that four other types of medication she administered. MS. LA SALLE: THE COURT: A Objection.
Overruled. You cannot do this to her.
We were so surprised.
But she said, that's my style, get out, and she pushed us out. MS. LA SALLE: Objection.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q said. Q Q
THE COURT: counsel.
Sustained.
Next question,
Did Grace work or volunteer at the Antioch
Missionary Church? A Q A A lot. How often was she at the church? Wednesday prayer and Saturday practice with the
students and all weekend, all day. Q A What types of things did she do at the church? Sunday schoolteacher, she also was a leader, teacher She was also a leader of a choir.
of a youth group. Q
What is the beliefs of your faith regarding the
removal of a respirator? MR. SMITH: THE COURT: Objection, irrelevant. Sustained.
Were you present at a meeting at the hospital on
September 13th with Grace? A Q meeting? A In the midst of two doctors, the doctors said if -MR. SMITH: THE COURT: Objection, hearsay. Sustained as to what the doctor Yes. Can you tell the court what happened at that
What did you say to the doctor at that meeting?
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I want -- we want to treat her and we want to make The reason for us bringing her to the hospital is Even though the heart
her better.
to treat her and to get her better.
does not work on its own and it needs assistance, please do that and please keep her alive. That's what we asked for her.
She cannot have normal thoughts or actions, so on behalf of her, the family wants to talk for her. At the other
places, other hospitals, they respected the thoughts and wishes of the family and were very supportive of the family's thoughts, but at this hospital -- so we also asked of this hospital of the same thing. Even though we asked them for the same support for the family, this hospital continued to just communicate with just the child. That's why we prayed and we pleaded with the Please help
hospital because we want to save our daughter. our daughter. Q A
How often do you visit Grace in the hospital? I go every day except for priority times. I live
there except for the times of service. Q Have you seen a change in her since she's been in
the hospital? A When she meets her father and her mother, she's
constantly murmuring, I want to live. MR. SMITH: THE COURT: Objection, hearsay. Sustained.
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She asks, can you please, you know, give me a little
massage here and touch my face and, you know, just give me a little massage on the hand, the foot, a little on the neck.
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And then in one second I'm very tired and I'm uncomfortable and I want to go to heaven. She leaned on me a lot.
Until myself and my wife were worn to the bones, we constantly tried to give her a little massage here and there and encourage her, and it seems the situation is getting better. The blood pressure is normal. Blood is normal.
Temperature is normal. to get better. quietly --
Everything is normal, and it seems
But the two doctors told her that we were
MR. SMITH: THE COURT: said. Q
Objection, hearsay. Sustained as to what the doctors
Next question, counsel.
Is your parish praying for Grace? MR. SMITH: THE COURT: Objection, irrelevant. Sustained.
Q A
Does anyone else go to see Grace besides the family? A lot. Amongst them, Grace's friends, people who
went to Ethiopia on a missionary came back on the plane, and North Carolina friends flew over, and a friend came over even three times. Even though Grace was an English speaking part of the church, a lot of people from Manhattan, all over different
1 2 3 4 5 6 7 8 9 10
churches all came to support her.
Even though our church
volunteered as a Korean church, on weekend nights we went as an American church, and when she worked at Bank of America, she taught bibles and ministries and made a prayer group, and she went, like, about once a year to places like South Africa, a long trip, long missionary trip to places like that. Q What's the purpose of the missionary trip? MR. SMITH: THE COURT: Q Objection, irrelevant. Sustained.
Do you believe that Grace will get better?
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I believe that going forth she'll get better, In the midst of my daughter getting treated at
continuously.
this hospital, taking too much medication and suffering from depression, God saved someone who was dead, made stuff that wasn't there there, just like Jesus healed all the sick, I pray and my family prays and the congregation and all around us all pray for her. And I firmly believe that she can be treated and she will get better and she will come out of this. getting better. Q continued? THE COURT: That's not a decision this court Are you asking this court to have the respirator She is continuously
is going to make, continuing or not continuing the respirator. That's a medical decision.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Q A What? Q
This court's jurisdiction deals with whether or not the temporary restraining order will continue or not continue; that is the application before the court. I am going to rephrase the question. Don't answer.
I am going to rephrase the question. Are you asking the court to continue the temporary restraining order to keep the respirator on Grace? A I am hopeful that it will be like that because last
Monday the North Shore Hospital doctors and nurses together last Monday was the date to kill my daughter. MS. LA SALLE: Objection.
Last Monday was the date that -THE COURT: move on. (The last question and answer were read back Repeat it for counsel and let's
18 19 20 21 22 23 24 25 Q
as above.) THE COURT: Next question, please.
If this court was to appoint you guardian, would you
be willing to serve? THE COURT: That's not the issue, counsel.
He's already temporary guardian, having been appointed by virtue of the order of Judge DeStefano. MS. GIORDANO: I have no further questions.
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THE WITNESS: THE COURT:
Honorable judge -No, no. Hold on.
Mr. Smith, do you have any questions? MR. SMITH: THE COURT: questions? MS. LA SALLE: THE COURT: THE WITNESS: thing? THE COURT: THE WITNESS: Yes. Thank you. My daughter No. No, sir. Miss La Salle, do you have any
The witness is excused. Honorable judge, just one more
I am thanking God right now.
might have died last Monday, but she's alive five more days. In our family there's a lot of males but
there's only one daughter. This daughter, the thought of her dying, my heart tremors, everything goes black. I cannot eat.
I really, really, really wish that my daughter lives, and my daughter, she's under God's grace, and I believe in God. After she's treated, she said after she's treated she wants to go to places like Ethiopia and Africa and continue her missionary work. Before she
25
was sick, she even went to a seminary school for one
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semester.
In Nyack she went for one semester even That's why whatever it takes so that
as a seminary.
she can live and fulfill her wish. In November she's practiced for 16 weeks to go to New York Marathon in November last year, and she collapsed. THE COURT: THE WITNESS: That's when she got sick. That's when she collapsed and
she got hospitalized, and then she was diagnosed with glioma and she has the spinal tumor. THE COURT: I understand, I understand, and I
certainly appreciate what your family is going through, what you're going through, what your daughter is going through, and certainly my heart goes out to you, but she's really in God's hands, not in the hands of this court in terms of her illness and whether or not she recovers from that illness. The question here, very simply, is whether or not I am going to continue that restraining order in light of the fact that the doctors have testified that your daughter has the capacity to make decisions for herself, medical decisions, and she has made the medical decision that she wants this breathing tube removed. Whether she lives after the
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breathing tube is removed or not removed, that's up to God, not up to me. Thank you.
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sir.
Now, let me just address -- you may step down,
(The witness left the stand.) THE COURT: I will permit you, Miss Giordano,
if you want to put a statement on in lieu of the testimony of Mrs. Lee. I understand how upset she is and how upset the whole family is under the circumstances here, and rather than put her under the strain of testifying and the like, I will let you do that. I know she's had some conversation with the interpreter, so if you want to take a few minutes and talk with the interpreter as to what Mrs. Lee would like me to be aware of, you can do that, and then we'll put it on the record. MS. GIORDANO: Thank you, your Honor.
(At this time a recess was taken.) THE COURT: All right. Do you want to put a
statement, Miss Giordano, on the record as to what Miss Lee would testify to? MS. GIORDANO: Your Honor, when I went out to
speak to her, I was not able to get any information
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from her. THE INTERPRETER: ambulance. They're actually calling an
She's heaving -I understand that, and certainly
THE COURT:
the EMTs in the building and certain personnel in the building can take care of that. I understand that. I understand how upset
this lady is, and I can understand the gravamen of this situation as far as the entire family is concerned. But the bottom line is that this
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individual who is lying in the hospital bed has rights, and I have to adjudicate those rights in terms of what those things that are brought before me, and I am going to do that. Is there something that you want to put on the record with regard to her testimony, what she would say if she testified, other than the fact that she would certainly be opposed to vacating the temporary restraining order? MS. GIORDANO: Your Honor, she is the issue of That's the document
the attachment to the petition.
that she prepared from notes that she had. THE COURT: And that is the September 13th
document that is typewritten in Korean language characters, and the only English on that typewritten
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document is the AIP's name in two places. MS. GIORDANO: THE COURT: That's correct, your Honor.
I saw that attached as an exhibit.
Mr. Smith objected to that being offered into evidence. Number one, it's not signed by the AIP,
and number two, it's a statement that was made outside of court and there is no translation. We need to get her whatever assistance -COURT OFFICER: way. THE COURT: Very good. I can understand how There is an ambulance on the
very much the mother is upset. MS. GIORDANO: Your Honor, what I believe
Mrs. Lee would be able to do would be to authenticate the document. notes she had. She prepared it from
Her testimony would also say that
Grace Lee can't sign the document due to her
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paralysis, but that it was read aloud to Grace and that she was asked is this your wishes and she said yes. THE COURT: And I don't think anybody contests
the fact that those were her wishes on or about September 13th, is that correct, Mr. Smith? MR. SMITH: I have no reason to be able to
contest that, and my information from the medical
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staff is consistent with that, judge. THE COURT: Okay, fine. I understand that,
and that's part of the record. But like any other -- if in fact it is a health care proxy, like any other health care proxy, it can be revoked, it can be changed. And we have
to deal with the testimony that has occurred or the things that have occurred since September 13th, the testimony offered by the two doctors today and the social worker, the head of the social work department, okay? record. All right. Now, I am working on a decision. I understand that, it's in the
Does anybody want to say anything before I go inside to try and finalize this decision? MR. SMITH: THE COURT: Yes, your Honor. Yes, sir, I will hear you. Judge -I am waiting for the Anybody?
THE INTERPRETER: THE COURT:
Hold on.
attorneys to speak. MR. SMITH: Your Honor, on the narrow issue
before the court this evening as to whether there is a basis for the temporary restraining order to be continued, the only pertinent and valued evidence
25
that the court has received on the issue of what
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this patient would want at this time is that she's fully competent to make decisions by and for herself and that she has decided at this time that she wants the ventilator to be discontinued. There is no contrary evidence of any probative value on the record here, and on the three-prong test of -- two prongs of which are substantial likelihood of success on the merits and balancing of the equities, I would respectfully submit that there really is no doubt on this record that there is essentially no likelihood of success on the merits on establishing that Grace Lee does not have the capacity to and has not made her own meaningful, rational and reasonable health care decisions because the record demonstrates that she has. In terms of the balancing of the equities, your Honor, one would have to not have a heart to not feel for this family, but at the end of the day, it is Grace Lee's own wishes based on her own condition and based on her concrete understanding of her medical condition that the court has to, I would respectfully submit, honor. Based upon all of that, your Honor, I would respectfully submit that the temporary restraining order must be vacated, that the temporary
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guardianship needs also be vacated so that there can be no doubt of Grace Lee's authority to make and
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
implement her own decision and so that decision can be made and implemented. THE COURT: Well, I don't know about that
latter thing about vacating the appointment of the temporary guardian since we really haven't considered that and counsel wasn't put on notice with regard to that. What we were dealing with
essentially was the temporary restraining order. MR. SMITH: THE COURT: Yes, your Honor. There are certainly other things
that Miss Lee is not capable of doing where a temporary guardian could be of great benefit to her, but the issue as to whether or not the hospital should be restrained from following the directions or the wishes of the patient, that's what I am dealing with today. MR. SMITH: Thank you, your Honor. And in
point of fact, the only temporary guardianship power granted in any event was to make inquiry to Cold Spring Harbor Nursing Home as to whether she could be accepted. THE COURT: MR. SMITH: All right. Fair enough.
Thank you, your Honor.
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THE COURT: to add?
Miss Giordano, anything you want
MS. GIORDANO:
Your Honor, this family does Her
not feel that Grace Lee is in her right mind. wishes to disconnect the respirator -THE COURT:
I understand that, I understand
what the family feels and what the family has testified to. It flies in the face of the medical
testimony that was offered here today by the
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attending physician and the psychiatrist and the social worker. who is wrong. When we're dealing with medical things, I think I have to side with the medical people, okay? I can certainly understand where it comes from from the family. I can understand, and I see and feel So I have to decide who is right and
the love and affection that they have for their daughter and their sister. Go ahead, I am sorry. MS. GIORDANO: Your Honor, the family's belief
is that people who commit suicide go to hell. THE COURT: that. This is not suicide. I understand We have to
We're dealing in a court of law.
deal with what the law is, not what people think it is.
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This is a decision that this woman apparently wants to make in terms of removing this breathing tube. It deals with life-sustaining equipment, it She's
deals with all sorts of different things. in a hospital being treated. This is not a
Dr. Kervorkian type of situation.
But go ahead.
I understand those things and I don't mean to interrupt you, but in the same regard I don't want to spend any time on things that we're all aware of and that really in the order or priority of things are at a minimum by comparison to some of the bigger issues we have to deal with. Okay, go ahead. MS. GIORDANO: My clients want you to know
that this is important to them and that they don't feel that Grace understands the implications for
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their religion. THE COURT: them. I understand that, and I feel for
But I also understand what the psychiatrist
testified to, and I also understand what the attending physician testified to. And I understand
through Mr. Smith what his client wants me to know about this situation. Okay. Anything further? If you would just give me a
MS. GIORDANO:
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minute. THE COURT: Sure.
(Brief pause in proceedings.) THE INTERPRETER: He wants to say that the
people who instill this type of thinking to give up is the doctors from the hospital, so to listen to the testimony from doctors from the hospital is just -- from this hospital, the two doctors just pushed along. So that's not her right mind.
He asks the hospital to take responsibility and that doctor begged for forgiveness. So I cannot
have any faith in this hospital, and I cannot believe in the doctor because he asked me for forgiveness. If the child is in a lot of pain, of course, she's in pain and she's delirious, she can say I want to go to heaven. But you cannot take that --
the two doctors, they cannot take that and take that for -THE COURT: right, thank you. All right, that's enough. Thank you very much. All
All right, just stand by, everyone. (At this time a recess was taken.)
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THE COURT:
Let me just preface my decision
by the fact that I have been dealing with this
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particular issue since yesterday when the papers came up from guardianship, when we dealt with the issue of appointing counsel, we dealt with the issue of appointing the court evaluator, and has continued throughout the evening when we learned that Mr. Smith wanted the matter heard today at the request of his client, he didn't want it put over until Monday, and we made all of those arrangements in order to do that. So this is not something that It's something that I
I have lightly considered.
have dwelled on and considered for certainly more than probably 36 hours. But in any event, by order to show cause dated September 26, 2012, signed by Justice DeStefano, the petitioner moved for the appointment of a guardian for the person and property of Sungeun Grace Lee, an alleged incapacitated person. The order provided that pending the hearing and determination of that application, that North Shore University Hospital was restrained from disconnecting the feeding tube and respirator from Miss Lee. The order further provided for the
appointment of Man Ho Lee, Miss Lee's father, as temporary guardian as well as the appointment of counsel for the alleged incapacitated person.
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By short form order dated September 27th of 2012 David Smith was appointed counsel for the
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alleged incapacitated person and Beth A. Ross, Esquire, was appointed court evaluator. A conference was held on September 28, 2012 followed by a hearing, at which counsel for the alleged incapacitated person together with counsel for North Shore University Hospital both made application for an order vacating the temporary restraining order contained in the order to show cause signed by Judge DeStefano. The testimony has revealed that Ms. Lee has repeatedly stated that she desires that the feeding tube and respirator be removed. The issue before
the court, therefore, is whether the temporary restraining order should continue in light of the fact that Miss Lee has shown capacity notwithstanding the allegations in the petition. To obtain a preliminary injunction a movant must demonstrate a likelihood of success on the merits, danger of irreparable harm unless an injunction is granted, and a balance of the equities in his or her favor as set forth in Dana Distributors at 48 AD3d, page 613. In order to demonstrate a likelihood of
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success on the merits in this Article 81 proceeding, petitioner must establish that it is likely that it is a high probability that it will be determined that the alleged incapacitated person is in fact incapacitated. The law presumes that every person
has the capacity to manage his or her own affairs, but evidence to the contrary may overcome that presumption. According to Mental Hygiene Law Section 81.02,
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subdivision b, the determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because the person is unable to provide for their personal needs and/or property management and the person cannot adequately understand and appreciate the nature and consequences of this inability. In reaching its determination the court shall give primary consideration to the functional level and functional limitations of the persons as required by 81.02 of the Mental Hygiene Law. The main issue, then, before me is whether or not Miss Lee can adequately understand and appreciate the nature and consequences of any disability or functional limitation that she has.
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Clear and convincing evidence is evidence which satisfies the court that there is a high degree of probability that what is sought to be proved is actually the fact. It is not enough to find that it is more likely than not that the alleged incapacitated person is incapacitated. Petitioner must convince
the court that it is highly probable that the alleged incapacitated person is incapacitated under the circumstances here present, and central to any adjudication of incapacity is the ability to make health care decisions. The determination of a person's health care decision-making capacity is also the first step in the application of the Family Health Care Decision Act. An initial determination of lack of decision-
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making capacity must be made by an attending physician and an independent health or social services practitioner affiliated with the facility. By contrast, it has long been the common law rule in this state that a person has the right to decline medical treatment, even life-saving treatment, absent an overriding state interest, and that's the dicta of Matter of O'Connor at 72 NY2d page 517. In O'Connor the Court of Appeals
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articulated that clear and convincing evidence standard that must be satisfied in order to terminate artificial life support for a nonincompetent patient based upon a patient's previously expressed wishes while competent not to be kept alive by artificial means. We certainly can read from that decision that we are now dealing with a situation of somebody who is by virtue of the testimony competent in the eyes of the medical people to make health care decisions. The common law has long reflected a concern for an individual's right of self-determination. Union Pacific v. Boxford at 141 U.S. 250 the court stated that no right is held more sacred or is more carefully guarded by the common law than the right of every individual to possess and control his own person free from all restraints or interference from others unless by clear and unquestionable authority of law. Where medical treatment is concerned, common law has recognized a civil action for damages for treatment in the absence of a patient's informed consent, and as Judge Cardoza said, every human In
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being of adult years and sound mind has the right to determine what shall be done with his or her own
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body, and my reference is Matter of Fox, which is 102 Misc2d 184. The court has no difficulty finding clear and convincing evidence of the patient's wishes. The
patient in the Fox case was a member of a religious order who had consciously discussed his moral and personal views concerning the use of a respirator. In that case, as I said, the court had no difficulty finding clear and convincing evidence of his wishes. The court in Eichner v. Dillon at 52 NY2d stated that brother Fox carefully reflected on the subject, expressed his wishes, and concluded not to have his life prolonged by medical means if there was no hope of recovery and that the conclusion is not inconsistent with his life of unselfish religious devotion, nor can it be said that he was too young to realize or feel the consequences of his statement. Certainly that is germane to this situation where it's indicated that the alleged incapacitated person has strong religious beliefs and was strongly and thoroughly involved with her church during the week, on weekends and even to the extent of making missionary trips and missionary pilgrimages on behalf of the church.
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But notwithstanding that, she still has the
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right to determine for herself what should or should not be done in terms of health care decisions. It is alleged in the petition that the alleged incapacitated person is 28 years of age, having been born on June 16, 1984, and is currently a patient at North Shore University Hospital in Manhasset and she has been a patient since September of 2012. Prior
to her illness, which surfaced in November of 2011, Miss Lee worked downtown at the Bank of America and was active certainly in her church as I have indicated. She had been diagnosed following a
November 2011 episode with a brain stem tumor and is currently on a respirator and a feeding tube. Miss Lee had been a former triathlete and now finds herself paralyzed from the neck down. Dr. Dana Lustbader, the director of the palliative care unit, testified that the alleged incapacitated person is able to communicate clearly. The doctor opined that Miss Lee can make her own medical decisions and that Miss Lee understands the risks, the benefits and the alternatives of the removal of the tubes. Dr. Lustbader further
testified that Miss Lee's prognosis was that she would die within a few weeks to a month as a result
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of pneumonia or other infection as a result of bedsores or as a result of a brain herniation caused by blood pressure and heart stoppage as a result of the tumor on her brain stem. Dr. Brian Keefe, who is board certified in general and forensic psychiatry, testified that he consulted with Miss Lee on September 25th of 2012. He opined that Miss Lee has decision-making capacity
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with regard to health care decisions.
Dr. Keefe
testified that Miss Lee was not impaired by medication at the time of his consultation and that she expressed full understanding of her diagnosis and the options and indicated that her preference was to have the breathing tube removed. That's the
same conclusion that Dr. Lustbader reached. Tracy Moore, the director of social work at North Shore University Hospital, consulted with Miss Lee on September 23, 2012, because there was discord between the patient and her family. Miss
Moore testified that Miss Lee asked for the removal of the vent now. It was Miss Moore's impression
that Miss Lee understood what she was asking for in that she was oriented to person, time and place and understood her medical condition. Since preliminary injunctions prevent
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litigants from taking action that would otherwise be legally taken or action that they would otherwise be legally entitled to take in advance of an adjudication on the merits, it is considered a drastic remedy and should be issued cautiously. Certainly the authority cited there is Related Properties v. The Town Board of the Village of Harrison, New York at 22 AD3d 587. This court is certainly mindful of the family's desire that Grace recover and live a long life and that their belief is that the tube should not be removed. However, the court is aware of the seriousness of this decision and appreciates that all life is sacred and that the court's obligation is to protect
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life.
The evidence here, however, fails to show a
likelihood of success on the merits on the issue of incapacity and therefore has not demonstrated a clear right to injunctive relief, which is plain from the undisputed facts. The court concurs with the medical witnesses that the alleged incapacitated person has sufficient capacity to make health care decisions, at least to the extent that the court is going to vacate the temporary restraining order contained in the order
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to show cause dated September 26, 2012, and accordingly, the temporary restraining order is vacated. I am going to sign a short order or onesentence order relative to the vacating of the temporary restraining order. The original can be
given to the -- copies can be given to everybody, including the hospital's attorney, and the original will be filed with the county clerk's office in the ordinary course of business. Again, my heart goes out to the family. feel your sorrow, I feel your pain, and I wish certainly that your daughter will recover and should recover, although that is unlikely in view of the testimony of the medical people who testified today and in view of all the things that we know about the course of her treatment. Certainly I wish you the very best. I have I
no ill feelings for you and I certainly understand the emotion involved and the emotion particularly involved by Mrs. Lee, who was unable to testify and was really overcome by all of what is here today.
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It's not an easy decision for me to make. It's not an easy decision I guess for any individual to make, but unfortunately, based on what I have
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heard, there is an unlikelihood of success, and I need to vacate the temporary restraining order and let the things move through their other natural course and put Miss Lee in the hands of God. * * *
Certified that the foregoing is a true and accurate transcript of the stenographic minutes taken in the above matter.
___________________________ Linda Vallone Senior Court Reporter

Sungeun Grace Lee - Court Testimony of Action Requesting Temporary Restraining Order

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Sungeun Grace Lee - Court Testimony of Action Requesting Temporary Restraining Order

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1

HONORABLE THOMAS P. PHELAN J u s t i c e

Good morning, everyone.

3 Dr. Lustbader-Direct by Ms. La Salle

4 Dr. Lustbader-Direct by Ms. La Salle

I did an internal mid residency at NYU Bellevue

internal medicine residency? A Yes. I did a fellowship in critical care medicine

critical care medicine, and palliative medicine.

And do you currently hold a position at North Shore

University Hospital? A Yes. I'm chief of palliative medicine at North

5 Dr. Lustbader-Direct by Ms. La Salle

No objection your Honor. All right, fine. Go ahead.

The brain tumor was very advanced in

would interfere with her cognitive ability?

6 Dr. Lustbader-Direct by Ms. La Salle

It does not interfere with her cognitive ability

clearly and communicate effectively. Q Is she currently responding to any medication to

7 Dr. Lustbader-Direct by Ms. La Salle

She's receiving fluconazole to treat a fungal

brain tumor from spreading. Carbatrol for seizure.

She gets Ativan for anxiety and also

8 Dr. Lustbader-Direct by Ms. La Salle

9 Dr. Lustbader-Direct by Ms. La Salle

She mouths words.

We have an alphabet board that on a

10 Dr. Lustbader-Cross by Ms. Giordano

Do you believe that she understands the risks,

Miss Giordano, any questions? Yes.

MS. GIORDANO: CROSS-EXAMINATION BY MS. GIORDANO: Q

Dr. Lustbader, when did you first have Miss Lee as

patients every day. 7th. Q

Were you at a meeting that was held on

that we're using don't have impact on her reasoning.

11 Dr. Lustbader-Cross by Ms. Giordano

The meeting that I discussed with you on

12 Dr. Lustbader-Cross by Mr. Smith

I have no further questions.

Mr. Smith, do you have any

Thank you, your Honor.

13 Dr. Lustbader-Cross by Mr. Smith

THE COURT: MR. SMITH:

Fine. I have copies for all counsel.

shown the photographs. THE COURT: Sure.

(Said exhibits were handed to the witness.)

Doctor, please take a look at the two photographs

14 Dr. Lustbader-Cross by Mr. Smith

MS. GIORDANO: THE COURT:

Any objection, counsel? No objection.

MS. LA SALLE: THE COURT:

the patient very much; that is not in question.

15 Dr. Lustbader-Cross by Mr. Smith

16 Dr. Lustbader-Cross by Mr. Smith

Have you noticed any reactions from Ms. Lee in

17 Dr. Lustbader-Cross by Mr. Smith

No. Have the parents ever professed to you that she

Ms. Giordano, further questions

18 Dr. Lustbader-Recross by Ms. Giordano

medical services? A We take care of patients on life support machines, a

religious beliefs as it relates to the removal of that

support? A In his practice he would discuss the faith background

you he did? A Yes. MS. GIORDANO: Okay. I have no further

MS. LA SALLE: THE COURT:

Thank you, doctor.