Betancourt v. Trinitas Hosp.

• Decision Date: 13 August 2010
• Parties: Jacqueline BETANCOURT, Plaintiff-Respondent, v. TRINITAS HOSPITAL, Defendant-Appellant.
• Court: New Jersey Superior Court

415 N.J.Super. 301

1 A.3d 823

Jacqueline BETANCOURT, Plaintiff-Respondent,

v.TRINITAS HOSPITAL, Defendant-Appellant.

Superior Court of New Jersey,Appellate Division.

Argued April 27, 2010.

Decided Aug. 13, 2010.

Gary L. Riveles argued the cause for appellant (Dughi & Hewit, attorneys; Michael J. Keating, Cranford, of counsel; Mr. Riveles, on the brief).

Todd Drayton, East Brunswick, argued the cause for respondent (Martin, Kane & Kuper, LLC, attorneys; Mr. Drayton, on the brief).

John Zen Jackson argued the cause for amici curiae, NJ Hospital Association, Catholic HealthCare Partnership of New Jersey and Medical Society of New Jersey (Kalison, McBride, Jackson & Hetzel, P.C., attorneys; Mr. Jackson, of counsel; Mr. Jackson and James A. Robertson, Warren, on the brief).

Anne L.H. Studholme argued the cause for amici curiae, Not Dead Yet, Adapt, Center For Self-Determination, National Council On Independent Living, National Spinal Cord Injury Association, American Association of People With Disabilities and Disability Rights of New Jersey (A.L. Holloway Studholme, LLC, and Stephen F. Gold of the California Bar, admitted pro hac vice, attorneys; Ms. Studholme, of counsel; Ms. Studholme and Mr. Gold, on the brief).

Larry S. Loigman, Middletown, argued the cause for amicus curiae Rabbinical Council of America, Agudath Israel of America, and National Council of Young Israel (Larry S. Loigman, attorney; Benjamin G. Kelsen, Teaneck, of counsel; Mr. Loigman, on the brief).

Thaddeus M. Pope of the California Bar, admitted pro hac vice, argued the cause for amicus curiae Thaddeus M. Pope (Martin, Kane & Kuper, LLC, and Mr. Pope, attorneys; Todd Drayton, East Brunswick, and Mr. Pope, of counsel and on the brief).

Rebecca M. Urbach, attorney for amicus curiae Greater New York Hospital Association.

Kern, Augustine, Conroy & Schoppmann, P.C., attorneys for amicus curiae NJ Physicians, Inc. (Steven I. Kern, of counsel; Mr. Kern and Svetlana Ros, Bridgewater, on the brief).

Before Judges CARCHMAN, PARRILLO and ASHRAFI.

PER CURIAM.

Rueben Betancourt ¹ underwent surgery at defendant Trinitas Hospital (defendant, the hospital or Trinitas) to remove a malignant tumor from his thymus gland. The surgery went well, but while Rueben was recovering in the post-operative intensive care unit, the ventilation tube that was supplying him with oxygen became dislodged. As a result, his brain was deprived of oxygen, and he developed anoxic encephalopathy, a condition that left him in a persistent vegetative state. Ultimately, among other treatment, he required dialysis three times per week, was maintained on a ventilator, developed decubitis ulcers that had developed into osteomyelitis and was fed with a feeding tube. After various unsuccessful attempts to resolve the issue of continued treatment with Rueben's family, defendant and various doctors, claiming that continued treatment would be futile and violated the standard of care, placed a Do Not Resuscitate (DNR) order in Rueben's chart. In addition, defendant declined to provide further dialysis treatment.

Plaintiff Jacqueline Betancourt, Rueben's daughter, filed an action to enjoin defendant from implementing such order. After appointing plaintiff as Rueben's guardian and following a hearing, Judge Malone, in the Chancery Division, restrained defendant from withholding treatment. This appeal followed, but within three months of the judge's order requiring reinstatement of treatment, Rueben died. Plaintiff moved to dismiss the appeal as moot, and we reserved decision on the motion pending review of the full record and arguments of the parties. Although we recognize the significance of the issues raised by the parties and amici on appeal, we conclude that both the lack of an adequate factual record as well as the limited, but unique, factual context presented, warrant dismissal of the appeal as moot.

I.

We provide an expanded statement of the relevant facts adduced from the limited record before us. On January 22, 2008, Rueben underwent surgery at defendant to remove a malignant tumor from his thymus gland. As we previously stated, the surgery went well, but while Rueben was recovering in the post-operative intensive care unit, the ventilation tube that was supplying him with oxygen somehow became dislodged. ² As a result, his brain was deprived of oxygen, and he developed anoxic encephalopathy, a condition that left him in a persistent vegetative state.

Rueben was subsequently discharged from defendant and admitted to other facilities that attempted rehabilitative treatments. He was readmitted to defendant on July 3, 2008, however, with a diagnosis of renal failure. Further attempts at placement in another facility proved fruitless, and he remained at defendant until his death on May 29, 2009.

At the time of his death, Rueben had not executed an advanced directive under the New Jersey Advanced Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78,(the Advanced Directive Act or Act).

He had neither designated a health care representative nor memorialized “specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment.” N.J.S.A. 26:2H-58 b. Witnesses for both parties to the dispute presented disparate views of Rueben's condition, the impact of treatment and prognosis. At the hearing, Rueben's attending physician, Dr. Arthur E. Millman, indicated that Rueben was a seventy-three-year-old man who was suffering from multi-system organ failure; his kidneys had failed, his lungs had failed, he was intermittently septic, he had hypertensive heart disease and congestive heart disease, and his skin was breaking down. He had “truly horrific decubitus ulcers” that had progressed to the bone, developing into osteomyelitis. Rueben was on a ventilator and received renal dialysis three times per week; he was fed through a tube into his stomach, given antibiotics and was turned frequently in his bed.

Millman stated that Rueben's most overwhelming problem was his permanent anoxic encephalopathy. He described Rueben's neurological state as “non-cognitive” with no higher mental functioning. He did believe, however, that Rueben was responsive to pain because he had personally witnessed Rueben's reactions to it. There had been no change in Rueben's neurological condition since he was admitted in July 2008, and Millman believed that the likelihood of his return to cognizant function was “virtually zero.”

Dr. Bernard Schanzer, Chief of Neurology at defendant, corroborated most of Millman's views concerning Rueben's neurological condition. He explained that the cortical part of Rueben's brain had been irreversibly damaged. As a result, Rueben was in a permanent vegetative state, unable to speak or respond to verbal cues, and although Rueben's eyes were open and he appeared awake, he was not alert or aware of his environment. Schanzer disagreed with Millman, however, concerning Rueben's ability to experience pain. He believed that Rueben did not feel pain, and Rueben's responses to stimuli were due to basic reflexes of the brain stem and spinal cord. He opined that there was no chance that Rueben would ever regain a cognitive state.

Dr. Maria Silva Khazaei, a nephrologist, concluded that Rueben was suffering from end-stage renal disease, and there was no likelihood of improvement. She opined that it was contrary to accepted standards of medical care to continue dialysis treatments because they only prolonged Rueben's dying process.

Not surprisingly, plaintiff's consulting nephrologist had a different opinion. Dr. Carl Goldstein, a nephrologist retained by plaintiff, stated that Rueben's current plan of dialysis “comports in every way with the prevailing standards of care.” He explained that the dialysis had been effective in removing excess fluid and waste products from Rueben's body. Rueben was tolerating the treatment well, and it was not harmful or dangerous to him.

Dr. William J. McHugh, Medical Director at defendant, was a member of the hospital's prognosis committee. The committee had been consulted concerning the efficacy of continuing Rueben's treatment; as a result, McHugh reviewed many, but not all, of the relevant medical records. He concluded that Rueben had “no outlook” because no affirmative treatment would improve his condition. As opposed to Millman, who believed that Rueben would probably die within a matter of months regardless of continued treatment, McHugh stated that Rueben's death “may take some time.” In fact, he opined that if treatment were continued at the present level, Rueben “could go on for quite a while.” On cross-examination, McHugh admitted that Rueben's present medical treatment was harmful only in the sense that the doctors were continuing to treat a hopeless situation.

Other members of the hospital's prognosis committee weighed in as well. Dr. Paul Veiana, president of the defendant's medical staff, examined Rueben the day before the hearing while Rueben was “wheeling” down to dialysis. Based on his review, he concluded that the doctors were not treating Rueben-they were just treating a body. He stated that the everyday drawing of blood and injections violated Rueben's body, and as a Christian, he believed that a body should not be so desecrated.

On several occasions, the hospital administration sought agreement from Rueben's family to place a DNR order and cease dialysis treatment, but they staunchly refused. It also made “exhaustive efforts” to transfer Rueben to another facility, but no other facility was willing to accept him. Ultimately, defendant acted unilaterally, placing the DNR order in Rueben's chart as well as surgically removing a dialysis port from Rueben's body.

At the hearing, plaintiff provided information about Rueben. Before his illness, Rueben lived with his wife and his two adult sons. Plaintiff resided next door and saw her father every day. The family had always...