Fonseca v. Kaiser Permanente Med. Ctr. Roseville

• Decision Date: 13 May 2016
• Docket Number: No. 2:16–cv–00889–KJM–EFB,2:16–cv–00889–KJM–EFB
• Citation: 222 F.Supp.3d 850
• Parties: Jonee FONSECA, Plaintiff, v. KAISER PERMANENTE MEDICAL CENTER ROSEVILLE, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

222 F.Supp.3d 850

Jonee FONSECA, Plaintiff,
v.
KAISER PERMANENTE MEDICAL CENTER ROSEVILLE, et al., Defendants.

No. 2:16–cv–00889–KJM–EFB

United States District Court, E.D. California.

Signed May 13, 2016

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Kevin Trent Snider, Matthew Brown McReynolds, Pacific Justice Institute, Sacramento, CA, Alexandra M. Snyder, Life Legal Defense Foundation, Napa, CA, for Plaintiff.

Ashante Latrice Norton, Ismael Armendariz Castro, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Defendants.

ORDER

Kimberly J. Mueller, UNITED STATES DISTRICT JUDGE

Approximately one month ago, doctors at a Kaiser Permanente hospital in Roseville, California determined that two-year-old Israel Stinson had suffered the irreversible

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cessation of all functions of his entire brain, including the brain stem. Under California law, this determination means Israel has suffered brain death and is no longer alive. But because Israel's heart is still beating and he is still breathing, with the support of a ventilator and careful, ongoing medical intervention, Israel's mother, Jonee Fonseca, asks this court to prohibit Kaiser from ending its life-support efforts. She argues California's definition of "death" violates the United States Constitution and deprives both her and Israel of due process. She also claims the defendants' actions have violated the California Constitution and the federal Emergency Treatment and Active Labor Act. She names Kaiser, one of its physicians, and the Director of the California Department of Health as defendants, and she requests a preliminary injunction to maintain and improve Israel's condition during this lawsuit. Although Kaiser and Ms. Fonseca have been attempting to reach a mediated resolution to accomplish Ms. Fonseca's goal of transporting Israel to a different location, there currently is no concrete proposal identifying either a location that will receive Israel or a method of transport. The court therefore is called to resolve the parties' legal disputes.

To this end, the court held a hearing on the preliminary injunction request on May 11, 2016. Kevin Snider, Matthew McReynolds, and Alexandra Snyder appeared for Ms. Fonseca, and Jason Curliano appeared for Kaiser and Michael Myette, M.D. Ashante Norton and Ismael Castro appeared and observed on behalf of Karen Smith, M.D., the Director of California's Department of Public Health.

I. DETAILED BACKGROUND

On April 1, 2016, Ms. Fonseca took Israel to a local emergency room. Fonseca Decl. ¶ 1, ECF No. 3–2. He had displayed symptoms of an asthma attack. Id. He was transferred to the pediatric unit at the hospital for the University of California, Davis, and his condition stabilized at least somewhat. Id. ¶¶ 1–2. Later the same day, however, after arriving at U.C. Davis, his condition worsened, he went into cardiac arrest, and he fell unconscious. See id. ¶¶ 3–5. Doctors attempted to revive him, and then used an extracorporeal membrane oxygenation (ECMO) machine to provide cardiac and respiratory support. Id. ¶¶ 5–7. Within a few days, his heart and lungs were functioning again on their own, but he requires a ventilator to breathe. See id. ¶¶ 9–14. A doctor determined Israel had suffered brain death; he was therefore no longer alive within the meaning of the California Uniform Determination of Death Act (CUDDA), Cal. Health & Safety Code § 7180 et seq.¹ See id. ¶ 14; First Am. Compl. ¶¶ 14, 19, ECF No. 1. Israel was then transported to the Kaiser hospital in Roseville, where he has been attended to since April 11, 2016. Doctors at Kaiser have twice independently confirmed he is brain dead. Fonseca Decl. ¶ 13; see also Myette Decl., ECF No. 43–1. The hospital completed its portion of a death certificate, which identifies the date of Israel's death as April 14, 2016, but other portions of the certificate remain incomplete. See Myette Decl. Ex. B, ECF

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No. 43–3 (incomplete portions include parents' names and information about the disposition). In light of its doctors' determinations, Kaiser intends to end life support efforts.

Ms. Fonseca believes Israel is not dead because his heart is beating and he is breathing, but if he no longer receives life support, he will then die. First Am. Compl. ¶ 3. She perceives that he responds to her voice and touch, and at times he appears to have taken breaths on his own. See Fonseca Decl., ECF No. 35. She therefore feels an imperative moral and spiritual obligation to ensure life support efforts for her son do not end. Id. ¶ 62.

Dr. Michael Myette, M.D. is the Medical Director for the Pediatric Intensive Care Unit at Kaiser in Roseville, the doctor ultimately responsible for Israel's care, and a defendant in this action. He explains his understanding of Israel's condition in basic terms: "Israel's brain is not telling his organs how to function." Myette Decl. ¶ 5. This means doctors must meticulously monitor and support his condition by adjusting his blood pressure and hormone levels pharmaceutically, providing support with a ventilator, and keeping his body warm with blankets. Id. ¶¶ 5–7. He is receiving only dextrose—sugar—for nutrition, but has not lost weight over the three to four weeks since he was admitted. Id. ¶ 9. Dr. Myette worries that if he fed Israel internally, complications would likely arise, including infection, which would be difficult to detect and combat. Id. ¶ 8. Israel does not respond to any stimulus. Id. ¶¶ 10, 12. Dr. Myette opines that although Ms. Fonseca believes Israel has taken breaths on his own, this is a misreading of the ventilator, which can be artificially triggered. Id. ¶ 14. The movements Israel makes in response to his mother's touch or voice are reflexes that originate in his spine; they also are triggered by more innocuous and lighter contact, for example, a bump on the side of his bed. Id. ¶¶ 10–12.

On April 14, 2016, after Kaiser completed its portion of the death certificate, Ms. Fonseca sought relief from the Placer County Superior Court on Israel's behalf. See Fonseca ex rel. Stinson v. U.C. Davis Children's Hosp. , No. S–CV–0037673 (Placer Cty. Super. Ct. filed Apr. 14, 2016).² The superior court entered a temporary restraining order (TRO) requiring Kaiser to continue life support, and over a period of about two weeks during which the order was extended twice, Ms. Fonseca and Israel's biological father, Nathaniel Stinson, attempted unsuccessfully to arrange for Israel's transfer to another medical facility. See generally Curliano Decl. Exs. A–G, J–K, ECF No. 14–2 to –8 & –11 to –12. On April 29, the state court dismissed Ms. Fonseca's petition for relief and dissolved the TRO. ECF No. 19–1. The state court found California Health and Safety Code sections 7180 and 7181 had "been complied with." Id. at 2.

On April 28, 2016, the day before the Superior Court's restraining order was set to finally expire, Ms. Fonseca filed this lawsuit. See Compl., ECF No. 1. Her original complaint alleged claims directly under the U.S. Constitution, the federal Rehabilitation Act, and the Americans with Disabilities Act. The court granted a temporary restraining order until a hearing could be held on Monday, May 2, 2016. ECF No. 9. At the May 2 hearing, the court dismissed the original complaint by

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bench order, as the complaint's allegations did not show the court had jurisdiction. Minutes, ECF No. 22; Minute Order, ECF No. 23. The court ordered Ms. Fonseca to file a first amended complaint the next day. Kaiser did not object to an extension of the TRO through May 11, and a hearing was set for that day on a motion for a fully briefed preliminary injunction. The matter was also referred to emergency mediation before a magistrate judge of this court, but as noted the parties have been unable to reach an agreement so as to moot the current motion. Minutes, ECF No. 28.

Ms. Fonseca timely filed a first amended complaint, which includes five claims. First, she claims under 42 U.S.C. § 1983 that CUDDA is unconstitutional on its face under the Fifth and Fourteenth Amendments. First Am. Compl. ¶¶ 51–59. CUDDA provides that "death" is not just the cessation of breath and a heartbeat—the prior, historical conception—but also the absence of all functions of the brain and brain stem. Id. ¶ 56. Because the CUDDA provision is broader than the historical conception and because it allows for no specific appeal of a death determination, Ms. Fonseca alleges it deprives Israel of due process. Id. ¶¶ 56–57. She asserts this claim against all the defendants: Kaiser, Dr. Myette, and Dr. Smith. See id. ¶¶ 5–6. Ms. Fonseca asks the court to declare CUDDA unconstitutional on its face, id. ¶ 59, and requests Kaiser be ordered to take certain steps to maintain and improve Israel's condition, id. ¶¶ 47–50.

Second, Ms. Fonseca alleges under 42 U.S.C. § 1983 that CUDDA deprives her of due process as Israel's parent. Id. ¶¶ 60–67. For this independent reason, she claims CUDDA is unconstitutional on its face. Id. ¶ 67. She alleges this claim against all the defendants.

Third, Ms. Fonseca alleges Kaiser violated the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. §...