BUFFALO - After a two-year court battle, a woman has won the right to disconnect the feeding and breathing tubes that keep her husband alive.

The man's brother says he is not done fighting to keep that from happening.

In a case recalling the Terry Schiavo debate, the future of Buffalo police Lt. Albert Devlin has divided his family.

The cases differ in a crucial way: unlike Schiavo, Devlin signed a health care proxy during his health crisis. Nevertheless, debate persists about who should carry out his wishes, and how.

In his July 2004 proxy, Devlin, who was diagnosed with esophageal cancer, gave control of his medical treatment to his brother, Dan Devlin.

Ten months later, Al Devlin suffered severe brain damage during surgery to remove cancerous tissue. Soon after, his wife successfully sued for control of her husband's treatment.

Earlier this week, state Appellate Justice Salvatore Martoche denied Dan Devlin's appeal of that ruling. Devlin said he may next take his case to the state's highest court, the Court of Appeals, or to a federal court.

“If a judge is able to get away with this, a (proxy) is useless,” he said.

Dan Devlin and Suzanne Devlin agree that Al Devlin told them after his diagnosis that he did not want to go on living as “a vegetable” if something happened.

Dan Devlin, 60, believes that a treatment might be found to help his 55-year-old brother regain consciousness. He is so adamant that he has vowed to pursue murder charges if life support is discontinued before every option is explored.

Suzanne Devlin declined to comment.

Dan Devlin said that throughout his brother's chemotherapy treatment, the two drove several times to rural Allegany County, where Al Devlin loved to hunt deer, to discuss what should be done if he were unable to make his own health care decisions.

Dan Devlin, who was a Phoenix, Ariz., police officer from 1971 to 1981, believes his brother turned to him not only as a brother, but as a fellow law enforcement officer and Vietnam veteran.

“We discussed the exact situation he's now in,” Dan Devlin said. “He knew I had been in a lot of situations where you have to keep a cool head, make tough decisions. He wanted me to use my judgment, and nobody else's, if anything went wrong.”

Dan Devlin said he asked his sister-in-law to help finance his search for medical treatment that might reverse Al Devlin's condition but she refused.

Weeks after her husband lapsed into a coma, Suzanne Devlin sued under the state Mental Hygiene Law to be appointed guardian of her husband's property. She also asked the judge to revoke the health care proxy and to appoint her guardian of her husband.

During a hearing, several witnesses called by Suzanne Devlin - including a third Devlin brother, Kenneth, who is also a Buffalo police officer - testified that Al Devlin told them he would not want to live if he were incapacitated.

A neurologist testified that Devlin's brain tissue injury was irreversible.

Dan Devlin, who said he could not afford to hire a lawyer, presented no witnesses.

State Supreme Court Justice Russell Buscaglia granted the wife's request, noting that Dan Devlin had “neither testified nor produced any evidence to controvert” his opponent's case. In revoking the health care proxy, the judge said it was “not specific in its enumeration of powers” given to Dan Devlin because Al Devlin had not spelled out those powers before the surgery.

Suzanne Devlin's lawyer said she has not decided when to remove her husband from life support.

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Information from: The Buffalo News, http://www.buffalonews.com

AP-ES-08-10-07 1559EDT