Back in March, a Union County, New Jersey Superior Court ordered Trinitas Hospital to continue providing life-sustaining medical treatment (ventilator, PEG, dialysis) to Ruben Betancourt at the direction of his daughter Jacqueline. Both the treating team and the hospital prognosis committee determined that such treatment was not indicated and contrary to the standard of care. The patient had multi-organ failure, was permanently non-cognitive, and was “dying slowly and painfully.” But the Superior Court decided that the treatment decision was the daughter’s to make.
Last Friday, the hospital filed its opening brief in its appeal of the Superior Court judgment. Coincidentally, the patient died the same day. Therefore, the daughter may decide not to pursue the appeal since there is no loner any objective for her to obtain. Still, this is certainly the type of case that is capable of repetition and evading review, such that there is at least an exception to the mootness doctrine.
If the case is fully briefed and decided on appeal, it may prove to be the most significant judicial precedent on medical futility (from a state with a long series of famous end-of-life appellate cases). That is because the hospital is squarely framing the relevant issue as “whether a hospital . . . can be compelled to provide inappropriate treatment . . . contrary to recommended standards of care.” In contrast, other appellate decisions (like Baby K) were decided on the basis of coincidentally applicable statutes.
Unfortunately, the hospital’s brief is rather weak given the gravity and novelty of the legal and ethical issues. The hospital relies almost exclusively on Causey, a Louisiana case that is highly distinguishable given a state statute and the procedural posture of that case. It also relies on Couch v. Visiting Home Care Services for the proposition that a court “may not order health care professionals to pursue a course of action which they believe is inappropriate.” But the hospital merely cited Couch and failed to show how it controls in this situation. Hopefully, some of the anticipated amicus briefs will cover these points.
The hospital’s stronger (or at least better-argued) point is that the trial court should not have appointed Jacqueline as the guardian for her father, because she had a conflict of interest. Specifically, she is apparently planning to file a malpractice case against the hospital. As I am arguing in a forthcoming paper, surrogate selection and replacement is a better (legally) established mechanism for resolving futility disputes. It does not work all the time, for example where the surrogate really is a good agent for the patient. But it works much of the time.
Finally, note that the hospital’s second point undercuts its first point. If there really is alleged malpractice here, then the hospital has just as much a conflict of interest as the daughter. Therefore, the argument that the court should defer to professional medical judgment is undercut where that judgment is not neutral and independent.
New Jersey hospitals often foist too much end-of-life care on patients. Hooray for Trinitas for standing up for professional judgment and the best interests of the patient. Hopefully, the hospital will succeed. An outright affirmance of the trial court decision would chill such admirable conduct, not just in New Jersey but across the country.
