What is Sure to be an Evolving Issue 

A New Jersey appeals court heard arguments Tuesday over whether a hospital can end life-sustaining treatment for a patient in a persistent vegetative state contrary to his family’s wishes.

A year ago, a Union County, N.J., judge said no, granting an injunction requested by the comatose patient’s guardian despite hospital doctors’ opinion that further treatment would be futile.

The hospital appealed, and though the patient has since died, the state Appellate Division proceeded to invite briefs and schedule arguments in the case, Betancourt v. Trinitas Regional Medical Hospital, A-3849-08.
The hospital’s lawyer, Gary Riveles of Dughi & Hewit in Cranford, N.J., insists judicial guidance is needed because the case’s circumstances are not uncommon and a similar situation is bound to recur.

Equally interested are amici representing disabled patients, who fear a ruling in the hospital’s favor would pave the way for caregivers to freely pull the plug in the interests of expediency and cost savings.

Spectators who jammed into the small New Brunswick, N.J., courtroom included half a dozen people in wheelchairs bearing orange stickers with the logo of Not Dead Yet, a disability-rights group that is among the amici.

Ruben Betancourt, who was 72 at his death, had been unconscious and unable to communicate since suffering complications from a January 2008 operation at Trinitas Hospital in Elizabeth 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 received dialysis treatments, breathed through a ventilator, and was nourished through a feeding tube.

Although family members said he seemed to respond to their presence, doctors said he was in a persistent vegetative state, His treating physician tried to convince the family to end dialysis, but they refused. Then, notifying the family that Betancourt’s bill was more than $1.6 million, the hospital said it intended to cease dialysis.

Superior Court Judge John Malone first entered a restraining order against terminating dialysis and, after two days of hearing, enjoined the hospital on March 4, 2009, from withdrawing life support without the consent of Betancourt’s daughter, Jacqueline, who was appointed his guardian. Betancourt remained at Trinitas, where he was fed, kept on a ventilator and given thrice-weekly dialysis until his May 29 death.

At Tuesday’s arguments, the three-judge panel seemed primarily interested in what compelled a decision on the merits, given the case’s facial mootness.

“How do we know [the situation] comes up frequently?” Judge Victor Ashrafi asked Riveles “Unfortunately, the record is relatively barren on that issue,” observed Judge Philip Carchman.

Judge Anthony Parrillo answered for Riveles, saying, “we haven’t seen it before but will see it in the future.”
“We may see it in the future,” Carchman corrected him.

Carchman added that the case carries “baggage,” namely the large, outstanding bill for Betancourt’s treatment and the potential for his family to sue the hospital for malpractice.

“There are all sorts of issues floating around which say maybe this case is not the case to decide this issue,” he said.

John Jackson, representing the amici Medical Society of New Jersey, New Jersey Hospital Association and other healthcare organizations, said the numerous parties that were allowed to join the case on both sides illustrated the “vibrancy of the issue” and weighed against mootness.

But the lawyer for Ruben Betancourt’s family, Todd Drayton of Martin, Kane & Kuper in North Brunswick, N.J., asked the court to find the appeal moot, saying the hospital failed to provide support for its premise that the circumstances of the case were likely to recur.

The number of amici “does not portend whether an issue is of great public importance,” he said. “That’s not an appropriate basis for this court to determine whether this issue is moot or not.”

Carchman asked attorneys on both sides what they would like the court’s holding to be if it ruled on the merits.
Riveles said the patient and his family “should not have the unfettered right to dictate the standard of care.”
Carchman asked whether that meant the ultimate decision on continuing treatment should rest with the doctor and hospital. Riveles said yes, but that another option would be to have a panel of outside medical experts decide.

Carchman asked Drayton whether a patient has a unilateral right to decide what treatment he receives. Drayton said the Supreme Court addressed the issue in In re Jobes, 108 N.J. 394 (1987), which held that a court’s role is not to decide on removal of treatment but to respect the patient’s right to self-determination.
Though Jobes presented the opposite situation from the case at bar — one of a family seeking the right to remove a vegetative woman’s feeding tube despite doctors’ objections — the principle is the same. “It is a fundamental right of the patient to direct his or her own healthcare,” Drayton said.

“What is your position in terms of who makes the ultimate decision?” Carchman asked.

“I think the courts are clear. In that narrow circumstance, if the hospital is unable to find a suitable alternative, they have to continue providing care,” Drayton said.

One of the amici who argued, Thaddeus Pope, a professor at Widener University School of Law, said it would be “helpful if [the court] restates what the current law is: that physicians have a duty to comply with patients’ preferences.”

Pope said the court could provide for a hospital’s right to relocate the patient to a different facility or seek removal of the patient’s guardian in cases where treatment is futile.

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