Hospital Can’t Discontinue Treatment for Vegetative Patient, Judge Rules

By Charles Toutant

New Jersey Law Journal

March 9, 2009

A Union County judge has restrained a hospital from taking it upon itself to discontinue life-sustaining treatment for a patient who has been comatose for over a year, rejecting arguments that public health considerations take precedence over the patient’s family’s wishes.

Superior Court Judge John Malone granted an injunction requested by Ruben Betancourt’s daughter, despite the opinion of doctors at Trinitas Regional Medical Hospital that he is in an irreversible persistent vegetative state and that further treatment would be futile.

Applying the state Supreme Court’s well-developed law on terminating life support, Malone held it is the patient’s wishes, or those of an appointed surrogate, that govern whether treatment should be continued, and he appointed the daughter as guardian to fulfill that function.

The March 4 ruling in Betancourt v. Trinitas Regional Medical Hospital, UNN-C-12-09, issued after a plenary hearing, makes permanent a temporary restraining order Malone entered on Jan. 23 to continue providing treatment.

The decision is important because the judge refused to adopt the novel position advanced by the hospital: that its doctors should not be forced to provide medical treatment that they believe is inhumane and contrary to standards of care.

The hospital, relying in part on out-of-state decisions, argued there is a public interest in letting physicians provide what they consider quality care — including “promoting dignity where death is inevitable and elevating the quality of life over longevity.”

Betancourt has been unconscious and unable to communicate since he suffered complications from a January 2008 operation at Trinitas to remove a malignant thymus gland. After being shuttled to various facilities, including a nursing home, he was readmitted to Trinitas in July 2008 with a diagnosis of renal failure. He receives dialysis treatments, breathers through a ventilator, and is nourished through a feeding tube.

The hospital medical staff advised that life support be discontinued, but Betancourt’s family members insist he is responsive to stimuli. They say he recoils when approached by medical providers and opens his eyes or turns his head when he hears certain voices. In fact, notations on his chart by medical staff state that he has been observed to be “awake.”

Betancourt’s daughter, son and wife say he was an active, strong-willed person and not the type to give up, and they say that if he were able, he would express a wish to continue treatment.

The hospital countered that while Betancourt does open and move his eyes, the movements are reflexive; that he does not respond to pain or move his extremities; and that continuing treatment in such circumstances is not only against the standard of care but also medically and ethically inappropriate.

The hospital’s lawyer, Philip Chronakis of Garfunkel, Wild & Travis in Hackensack, cited a Louisana case that upheld a doctor’s decision not to provide interventions he viewed as “harmful, without effect or medically inappropriate.” The court, in Causey v. St. Francis Medical Center, 719 So. 2d 1072 (LA. App. 2d.Cir. 1998), held it was authorized to overrule “an intolerable choice” by the surrogate decision-maker that dialysis be continued against the doctor’s advice.

Chronakis also cited Couch v. Visiting Home Care Service, 329 N.J. Super. 47 (App. Div. 2000), where a New Jersey court said a home nursing care agency need not continue to treat a patient in a deteriorating condition that made it unsafe for him to live at home.

But Malone instead followed the New Jersey Supreme Court’s ruling in Matter of Jobes, 108 N.J. 394 (1987), which held the trial court’s role is not to decide on removal of treatment but to respect the patient’s right to self-determination. Where the patient is unable to enunciate his wishes, the “substituted judgment” doctrine first enunciated in In Re Quinlan, 70 N.J. 10 (1976), requires the court to defer to a surrogate decision maker.

Turning down the hospital’s request that the court serve as surrogate, Malone instead appointed one, authorizing Betancourt’s daughter Jacqueline to make decisions about his treatment.

Chronakis says the hospital will appeal. He says the ruling “appears to require the perpetuation of a hopeless situation,” adding: “The harm is that five different physicians feel that their professional medical judgment and their medical ethics lead them to believe that continued treatment is medically inappropriate.”

The plaintiffs’ lawyer, James Martin of Martin, Kane & Kuper in New Brunswick, says, “the hospital had no right to do this. … We don’t want to be dictated to by a hospital administrator.”

CONSTITUTIONAL LAW — FREEDOM OF SPEECH

10-2-3227 Lin v. Powers , App. Div. (per curiam) (7 pp.) Plaintiff appeals from the dismissal of her action alleging that defendant violated her First Amendment rights during a public meeting of the Board of Chosen Freeholders by refusing to permit her to poll the freeholders on a matter involving a former freeholder who had been charged, but not indicted or convicted prior to his death, with corruption. Noting that the trial court correctly applied the controlling legal principles, finding that defendant’s conduct did not constitute viewpoint discrimination, and that defendant was entitled to qualified immunity, the panel affirms the dismissal. [Decided March 27, 2009.]

Appeals Court Raps Judge’s Knuckles for Giving Litigant a ‘Sophie’s Choice’

By Michael Booth

New Jersey Law Journal

March 31, 2009

The judiciary appreciates judges working hard to keep calendars moving and avoid backlogs, but an Ocean County judge pushed the envelope too far in Pangione v. Floral Expressions Inc.

Superior Court Judge Thomas O’Brien denied plaintiff Linda Pangione’s request to delay trial of her suit for six months so she could care for her mortally ill, 89-year-old father in Florida.

O’Brien complained the case was “backlogged,” since it was two years and four months old, and said it was “time to go.” After some wrangling with counsel, he dismissed the suit with prejudice.

On Tuesday, an appeals court called that unduly harsh, restored the case and remanded it for a new trial date.

“At the time of trial, this plaintiff was faced with a ‘Sophie’s Choice.’ She could have abandoned her eighty-nine-year-old seriously ill father in Florida to pursue this litigation or she could have stayed to care for him and his affairs and see any chance of any adjudication of this litigation on the merits evaporate,” said Appellate Division Judges Thomas Lyons and Alexander Waugh Jr. “Such a situation was unfortunate, special, and avoidable. It merits a solution short of dismissal with prejudice in light of the judiciary’s fundamental principles.”

Pangione’s was a tale of woe befitting a Dickens novel. A floral designer at a Manahawkin flower shop, she was fired in mid-2005 and sued later that year for gender discrimination. When the case came up for trial, it was twice adjourned, first due to the employer’s illness and then because Pangione’s mother died in Florida on Jan. 2, 2008.

As the new trial date of March 31, 2008, loomed, Pangione’s lawyer, Jordan Irwin, asked O’Brien for another adjournment. Pangione was still in Florida with her widowed father, who had a heart condition, diabetes and limited mobility and needed around-the-clock care.

Irwin said Pangione had meant to return to New Jersey by the end of January but could not because her sister had filed papers seeking to have the father declared incompetent and challenging control of his estate. A guardian appointed by a Florida court had named Pangione as the caretaker.

O’Brien denied the request and Irwin appeared on the March 31 trial date to renew it, asking for a delay until at least September or October. O’Brien suggested he could dismiss the case without prejudice so it could be refiled later, but defense counsel objected. O’Brien then offered a one-week adjournment, but Irwin said Pangione could not make it back by then due to her family situation and fear that her father might die while she was away. The defense objected to another lengthy delay.

O’Brien, again citing the backlog issue, said “this isn’t the only case I have to worry about, Mr. Irwin. Your client may think that. She may think she’s the only one in the world with problems, but I can assure you there is [sic] a lot of people with a lot of problems.

“I don’t know that this problem is so unusual, so unique,” he added. “It sounds like it’s ongoing, it’s not going to resolve itself. So, I am going to dismiss the case with prejudice.”

On appeal, Lyons and Waugh said that while court rules, particularly R. 1:1-2, are meant to eliminate “unjustifiable expense and delay,” the goal is not “the elimination of any and all delay but the elimination of ‘unjustifiable’ delay.”

The judges said they understood the pressure on O’Brien to reduce case backlogs and the desire on the part of the defense to dispose of the case. “But these notable objectives do not stand alone. The fundamental aim is a just determination following a trial on the merits,” they said.

O’Brien could have granted a shorter delay in order for Pangione to resolve the litigation involving her sister and arrange for someone to care for her father while she was in New Jersey, they said, adding, “The principles of achieving a just determination and fairness in the administration of the Rules outweigh any short delay in this situation.”

Floral Expressions’ lawyer, Judy Lansing, says O’Brien did nothing inappropriate. “The judge gave [Pangione] every break he could,” says Lansing, of Lakewood’s Lansing and Hannum.

The Appellate Division, she says, “didn’t consider both sides. The opinion never speaks to my client’s position and expenses, and I think that’s wrong.”

Irwin, of Cherry Hill’s Begelman Orlow & Melletz, says the panel was correct in determining that O’Brien’s decision to deny the request for a delay and to dismiss the case with prejudice was “way too severe.”

“The [Appellate Division] saw clearly that the lower court judge did not use proper discretion,” he says. “His actions were very draconian.”