Strachan v. John F. Kennedy Memorial Hosp.

• Decision Date: 17 March 1986
• Citation: 209 N.J.Super. 300,507 A.2d 718
• Parties: , 58 A.L.R.4th 181 Gordon G. STRACHAN and Marilyn Strachan, his wife, Plaintiffs-Respondents, v. JOHN F. KENNEDY MEMORIAL HOSPITAL and A.R. Pirolli, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 300

209 N.J.Super. 300

507 A.2d 718, 58 A.L.R.4th 181

Gordon G. STRACHAN and Marilyn Strachan, his wife Plaintiffs-Respondents, v. JOHN F. KENNEDY MEMORIAL HOSPITAL and A.R. Pirolli Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 9, 1985.

Decided March 17, 1986.

Stacy L. Moore, Jr., Marlton, for defendants-appellants (Parker, McCay & Criscuolo, attorneys; Stacy L. Moore, Jr., on the brief)

P. Kay McGahen, Trenton, for plaintiffs-respondents (McGahen, Dempsey & Casey, attorneys; P. Kay McGahen, on the brief).

Before Judges MORTON I. GREENBERG, J.H. COLEMAN and LONG.

The majority opinion of the court was delivered by

COLEMAN, J.H., J.A.D.

The novel issues presented in this tragic right to die case are (1) whether the hospital wrongfully delayed a decent burial of a brain dead patient, and (2) whether plaintiffs, as bystanders, established a valid claim for negligent infliction of emotional distress by the hospital for its alleged failure to have in place a procedure for discontinuing, upon request, life support systems on a brain dead patient. A jury found the hospital liable under both theories and awarded damages of $70,000 on each theory (which totals $140,000) for infliction of additional emotional distress. Defendants' motion for a new trial was denied. The hospital and its administrator have appealed. We hold that plaintiffs, as matter of law, did not establish any actionable wrongdoing under either theory of liability. We therefore reverse and enter judgment for defendants.

The present action was instituted by plaintiffs, the parents of a suicide victim. The complaint alleged that John F. Kennedy Memorial Hospital; its administrator, A.R. Pirolli; Drs. Hummel, Weinstein, Cohen, Venkat, Pinzler, Santoro; three Drs. John Doe; and the Delaware Valley Transplant Program and its representative Stephen Sammut were negligent, had committed the tort of outrage and were "responsible for grossly inappropriate handling of the dead body of Jeffrey Strachan." The alleged negligence was predicated upon the failure of the hospital to have in place procedures for withdrawing life support systems from a brain dead patient upon the request of the family. Plaintiffs sought compensatory and punitive damages. The complaint against all defendants, except for the hospital and its administrator, was dismissed prior to trial based upon the court's holding that as matter of law, there was no breach of any duty by those defendants. No appeal has been taken from that determination.

I FACTUAL BACKGROUND

The facts essential to our determination begin with the tragic events of Friday, April 25, 1980 when 20 year old Jeffrey Strachan undertook to commit suicide. At about 4:30 p.m., he fired a .38 caliber bullet into his head. He was transported by ambulance to defendant-hospital. An examination in the emergency room at 5:00 p.m. revealed a gun shot wound to the head. X-rays showed that the bullet had entered the right parietal area and was lodged in the left temporal region. Jeffrey was comatose but still had spontaneous respiration. He was intubated by Dr. Hummel, the emergency room physician. At 5:25 p.m. there was no spontaneous respiration; both pupils were dilated and fixed and no reflexes were detected. Jeffrey was then placed on a respirator (life support systems). Based upon a clinical examination, Dr. Hummel found Jeffrey to be brain dead.

At about 8:10 p.m. that same day, Jeffrey was examined by Dr. Cohen, a neurosurgeon, who also found Jeffrey to be clinically brain dead. Dr. Cohen explained to plaintiffs that Jeffrey was brain dead and that there was not anything that could be done to restore brain function. Dr. Cohen asked plaintiffs if they would consider donating Jeffrey's organs, such as his kidneys, for transplant purposes. The plaintiffs were not in agreement on whether to donate organs. Dr. Cohen suggested that plaintiffs should go home and return the next morning with a decision. At 8:30 p.m. Jeffrey was transferred to the intensive care unit where he continued to be on the life support systems and to receive other forms of active medical care. By this time his skin was pale, but he was still warm to the touch.

Plaintiffs returned to the hospital on Saturday, April 26, 1980 at about 9:00 a.m. They informed Dr. Pinzler that they had decided not to donate any of Jeffrey's organs and that they wanted the respirator turned off. Dr. Pinzler advised them to think it over some more. The hospital records indicate that plaintiffs' request was discussed with Dr. Cohen. The hospital record does not, however, disclose the content of that conversation. At about noon, Mr. Strachan asked a nurse if the respirator was going to be turned off and she replied in the negative, stating that "nobody had ever asked to have a machine shut off." Plaintiffs left the hospital at about lunch time.

Plaintiffs returned to the hospital at about dinner time and Mr. Strachan spoke with Dr. Venkat, one of Dr. Cohen's associates. Dr. Venkat examined Jeffrey at 8:00 p.m. and agreed that he was brain dead. Mr. Strachan asked Dr. Venkat to turn off the respirator because the nurses had said that they had no power to remove the life support systems. Dr. Venkat noted in the patient's chart that "as soon as the hospital administrator tells us the procedure, we will do so." The hospital administrator was contacted by the hospital. Based on conversation with administrator Pirolli, plaintiffs were advised at about 2:00 a.m.

on Sunday, April 27, that a court order would be required before the life support systems could be disconnected.

The evidence is somewhat in conflict as to what was done by the hospital administrator in response to requests for him to outline the procedure, if any, which the hospital required physicians to follow before turning off the life support systems on a brain dead patient. Pirolli was not on duty on the Saturday afternoon and evening of April 26, 1980. Jeannette Licorice, the assistant hospital administrator and director of nursing, was on call that weekend. She was advised by the nursing supervisor that plaintiffs would not agree to donate Jeffrey's organs and that they wanted the life support systems discontinued. She was told that Jeffrey was found to be brain dead from clinical examinations but that no electroencephalagram (EEG) had been performed. Later that night she spoke with Pirolli and informed him of Jeffrey's status and that the family wanted to discontinue the life support systems. Pirolli advised her that a court order would be required because the hospital had never before received such a request. She advised the nursing supervisor at about midnight that a court order was required.

Pirolli testified that Licorice called him late on the night of April 26, 1980. He was informed that Jeffrey was on life support systems and that the family had requested that they be discontinued. He was told that Jeffrey was found to be clinically brain dead. He was asked what procedure should be followed. He assumed that although physicians had found Jeffrey to be brain dead, no physician was willing to pronounce death and sign a death certificate. After consulting with the hospital's legal adviser, Edward Sullivan, he advised Licorice that a court order was required. Even though the hospital has a procedure for convening a Prognosis Committee upon a physician's request, to assist such physician who for medical or ethical reasons may be reluctant or unwilling to pronounce death and sign a death certificate in the case of a brain dead patient, Pirolli did not convene a Prognosis Committee in this Edward Sullivan, general counsel for defendant-hospital, testified that he advised the hospital administrator and the nurses that the decision to turn off the life support systems should be made only by a physician because that was a medical decision which only a physician could make. The hospital administrator called him late on the evening or night of April 26, 1980 and advised him that Jeffrey was clinically brain dead and asked whether the life support systems could be turned off as requested by the family. Sullivan insisted that the hospital "run EEG's until we have a clear understanding of what the boy's condition is and on Monday discuss further what to do and if necessary call the Prognosis Committee together." An EEG which had been requested on April 25 had not been done by the night of April 26. Sullivan advised that a court order be obtained if the family's wish that the life support systems be removed was to be followed before two EEG's were performed 24 hours apart to confirm irreversible brain death. The need for a court order was suggested as an alternative to a medical decision to turn off the life support systems. Sullivan felt that two EEG's would be required by either a court or a Prognosis Committee. He therefore directed the medical director to run two EEG's 24 hours apart to confirm brain death. These were performed on April 27 and April 28 and they confirmed the The hospital records disclose that on April 28, at 9:40 a.m., Dr. Weinstein examined Jeffrey and found no evidence of brain function. He, too, agreed that Jeffrey was brain dead. This was confirmed by the EEG's taken on April 27 and 28. At 2:00 p.m. the same day, Dr. Weinstein noted in the hospital chart, "patient officially brain dead and by hospital regulations we may discontinue respirator c [with] family's permission." At 2:30 p.m. the plaintiffs were asked to come to the hospital. Upon their arrival, they were told that the respirator would be turned off after they signed a release. Plaintiffs signed a release prepared by Sullivan at the request of Dr. Weinstein. The release stated:

case because the request to discontinue the life support systems came from the parents rather than a physician. He took the position that the decision as to whether and when to remove life support systems is...