For First Time, New York Court Rules Individuals are Entitled to Damages from Doctors Who Violate Advance Directives

Court Rules Widow Entitled to Damages for Deceased Husband Receiving Unwanted Painful Treatment at End of Life

Apr 5, 2022 advance directive Greenberg v. Montefiore newsletter

For the first time, a New York court has issued a ruling holding that individuals are entitled to damages for pain and suffering from doctors who provide them with unwanted medical treatment at the end of life. The New York Appellate Division, First Judicial Department issued a unanimous opinion last Thursday, reversing a lower court dismissal of the case, Greenberg v. Montefiore.

This legal victory ensures advance care planning documents, such as living wills and health care proxy forms, are enforceable in New York and that there are legal remedies available when a doctor ignores an individual’s documented end-of-life medical decisions.

Compassion & Choices submitted a friend-of-the-court brief in January in support of the plaintiff, Dr. Gerald Greenberg from Westchester County, who had advanced Alzheimer’s and was given life-sustaining treatment in direct violation of his living will and the requests of his wife, Elaine, who was his designated health care proxy.

This unwanted treatment caused Dr. Greenberg to live in extreme pain for 30 days longer than he would have had his wishes been respected. The Compassion & Choices brief detailed the importance of advance care planning documents, the harm caused when those documents are ignored or violated, and the importance of a legal remedy for such violations.  

“Put simply, if people can sue for damages when healthcare providers and hospitals ignore do-not-resuscitate orders and living wills, those providers will be far more likely to follow them—and not violate the patients’ right to decide what happens to their own bodies.” Compassion & Choices Brief, page 2. 

Compassion & Choices submitted the brief on behalf of the organization and two New York residents, Stacey Gibson from Putnam County and Jennifer Friedlin from Brooklyn, who have a special interest in the outcome of the case. Gibson has executed her own advance care planning documents, which she wants to be followed by doctors if, or when, necessary. Friedlin was the designated proxy for her father who had advanced Alzheimer’s and whose advance care planning documents were disregarded by hospital staff at the end of his life.

“I have tremendous respect for doctors. They have twice saved my life from cancer and as I now face a third cancer diagnosis, I will once again put my trust in their expertise. Yet doctors do not know the totality of me as a human being—they only know my medical conditions,” said Gibson, “That is why I have taken the time, based on my experiences and values, to put together my advance care planning documents. The court’s decision reinforces a doctor’s obligation to respect the decisions I have made in those documents, and if they do not, ensures they will be held liable for the harm they cause.” 

“The court’s decision is a relief,” said Friedlin, “At the end of my father’s life, all I wanted was to reflect peacefully on his legacy and the love we had for one another. Instead, I spent his final days fighting with his doctors to respect the decisions he carefully documented in his living will. The court’s decision will help ensure other families will not go through what mine did.”

The appeal came after a lower court ruled that Dr. Greenberg was not entitled to damages for the unwanted treatment he was provided at the end of life and dismissed the case. The New York Appellate Division, First Department reversed on appeal, stating: 

“[W]hen a competent adult has executed advance directives specifying the conditions under which they refuse certain life-sustaining treatments, and there has been a medical determination that those conditions are present, no philosophical guesswork is required as to what is best for such a patient.” Decision, page 6.

"When advance care directives are ignored, and a patient needlessly suffers at the end of their life, they are entitled to damages for the pain they were wrongfully forced to endure,” said Rob Rickner, partner at Rickner LLC who represented amici curiae in this matter. “The court recognized that this is a straightforward medical malpractice claim. This precedent-setting ruling will protect patient's autonomy by creating a powerful incentive for hospitals to follow their patient's advance care directives."

“Advance care planning documents honor a person’s dignity and autonomy at the end of life, but they are stripped of their value if a doctor can disregard them without fear of recourse,” said Jess Pezley, staff attorney for Compassion & Choices, “We are thankful for the court’s unanimous recognition that individuals are entitled to a legal remedy when they receive treatment violating their documented end-of-life decisions.”

To read more about this case, please visit https://compassionandchoices.org/legal-advocacy/recent-cases/greenberg-v-montefiore-nrh/ and https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=Q/yWgvZeUOXeN/fZJ3G7Hg==&system=prod