In New York, is there a legal remedy for “wrongful life” when a hospital or a doctor refuses to follow the terms of a patient’s living will and his or her health care proxy’s instructions resulting in pain and suffering by the patient?
Most people have heard of legal actions for pain and suffering and wrongful death. The former requires that the individual was aware of his or her pain (see, e.g., McDougald v Garber, 73 NY 246 ). Economic recovery belongs to the individual or, if that person subsequently dies, to his or her estate under the theory that the recovery is designed to compensate the individual for his or her pain and suffering (id. at 253-254). In contrast, in an action for wrongful death, monetary recovery from the wrongdoer who is found to be responsible for the decedent’s death belongs to the decedent’s distributees, those relatives who would take under the laws of intestacy (if the decedent died without a will), and is designed to compensate them for any economic losses they suffer resulting from the decedent’s death (see, e.g., Heslin v County of Greene, 14 NY3d 71, 76 ).
But, what is “wrongful life,” and is it actionable in New York? Recently, Supreme Court, Bronx County, was called upon to consider these issues in Lanzetta v Montefiore Med. Ctr., 2021 NY Misc. Lexis 543 *, 2021 NY Slip Op 21026 (Sup Ct, Bronx County 2021). In that case, plaintiff sought to recover damages for decedent’s twenty days of pain and suffering prior to his death allegedly caused by defendant, Montefiore Medical Center, when it administered life-sustaining medical treatment to decedent in contravention of decedent’s living will and the directives given by decedent’s health care agent (id. at *1-*3). “Wrongful life” actions usually encompass a negligence or medical malpractice claim brought on behalf of a child who is born impaired, with the claim being that the child would have been better off if he or she was not born (id. at *3). However, New York courts have determined that claims for “wrongful life” do not exist “‘because, as a matter of public policy, an infant born in an impaired state suffers no cognizable injury in being born compared to not having been born at all'” (id. at *3-*4, quoting B.F. v Reproductive Medicine Assocs. of New York 30 NY3d 608, 614 ). However, the Lanzetta action involved an elderly individual, not an infant, and the reasoning behind the Reproductive Medicine does not apply.
Relying on the Second Department case of Cronin v Jamaica Hosp. Med. Ctr., 60 AD3d 803 (2d Dept 2009), the Lanzetta court determined that the decedent did not sustain a legally cognizable injury as a result of defendant’s alleged failure to treat decedent in conformity with the directives in decedent’s living will and those provided by the decedent’s health care agent. (id. at *7-*8). In so finding, the Lanzetta court stated that plaintiff’s reliance on Public Health Law Article 29, which governs health care agents and proxies, was misplaced, because the “health care and proxies act,” as it is known, does not expressly or impliedly create a “private right of action” for the principal, or his or her estate, against the medical provider who violates the “statutory duty” to comply with the health care agent’s directives. (id. at *5-*10).
Although the Lanzetta court recognized the importance of having one’s medical treatment wishes followed, the court determined that it was bound to conclude that a cause of action for “wrongful prolongation of life” does not exist in New York and dismissed the action. In so doing, however, the court stated that whether there should be a common law action for wrongful life is for the appellate courts to determine and whether there should be a statutory right is for the Legislature for consider. What do you think?