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This entry was published on 2020-06-19
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SECTION 2973
Judicial review
Public Health (PBH) CHAPTER 45, ARTICLE 29-B
§ 2973. Judicial review. 1. The patient, an attending practitioner, a
parent, non-custodial parent, or legal guardian of a minor patient, any
person on the surrogate list, the hospital that is caring for the
patient and the facility director, may commence a special proceeding
pursuant to article four of the civil practice law and rules, in a court
of competent jurisdiction, with respect to any dispute arising under
this article, except that the decision of a patient not to consent to
issuance of an order not to resuscitate may not be subjected to judicial
review. In any proceeding brought pursuant to this subdivision
challenging a decision regarding issuance of an order not to resuscitate
on the ground that the decision is contrary to the patient's wishes or
best interests, the person or entity challenging the decision must show,
by clear and convincing evidence, that the decision is contrary to the
patient's wishes including consideration of the patient's religious and
moral beliefs, or, in the absence of evidence of the patient's wishes,
that the decision is contrary to the patient's best interests. In any
other proceeding brought pursuant to this subdivision, the court shall
make its determination based upon the applicable substantive standards
and procedures set forth in this article.

2. In any proceeding brought pursuant to this section, the court may
issue an order, pursuant to the standards applicable to the issuance of
a temporary restraining order according to section six thousand three
hundred thirteen of the civil practice law and rules, which shall
suspend the order not to resuscitate to permit review of the matter by
the court.

3. Where a person or entity may invoke the dispute mediation system,
no such proceeding shall be commenced until the dispute mediation system
has concluded its efforts to resolve the dispute or seventy-two hours
have elapsed from the submission of the dispute to the dispute mediation
system, whichever shall occur first, provided, however, that the patient
may commence an action for relief with respect to any dispute under this
article at any time and provided further that the department of health
or any other duly authorized state agency may commence an action or
proceeding to enjoin a violation of this article at any time.