March 17, 2007

 

 

Jury: Home violated living will

Nursing facilities must heed patient's wishes, panel rules
 

By Missy Diaz

Linda Scheible said she wanted her grandmother's "unnecessary suffering" to send a message to nursing homes everywhere.

A Palm Beach County jury's verdict on Friday afforded her the opportunity, she said, to let those caring for the elderly and infirm know that "they need to pay attention to patients' end-of-life directives and wishes."

In Florida's first prolongation-of-life trial, jurors found that the Joseph L. Morse Geriatric Center in West Palm Beach failed to honor the living will and advance directive of Madeline Neumann, a 92-year-old Alzheimer's patient who stipulated that she did not want to be kept alive by artificial means.

The jury found that Morse Geriatric should pay $150,000 in damages. But the panel declined to find Morse's former medical director, Dr. Jaimy Bensimon, negligent for his role in Neumann's prolonged death.

Testimony lasted three weeks and was taped by Court TV. Deliberations lasted just under four hours.

The verdict was lauded by bioethicists, who say the availability of medical technology doesn't always impose a moral duty to use it. Though the impact of the verdict likely won't stretch outside Florida, it still sets a precedent that might be taken into account in future cases, according to Kenneth Goodman, director of the University of Miami's bioethics program and the Florida Bioethics Network.

"This is a big deal. It's a reaffirmation that no means no," Goodman said. "There are a lot of institutions and a lot of health-care professionals who have acquired the belief that you reduce liability overtreating patients. This case shows that's a bad strategy. The whole point is that advance directives survive your inability to utter them."

As Neumann lay dying in 1995, rescue workers arrived at the nursing home and began reviving her. She was rushed to Columbia Hospital, where she died six days later after various lifesaving measures, including having a breathing tube inserted in her throat.

Scheible's attorneys argued that Morse staff either failed to note Neumann's end-of-life wishes on her chart or that the directives never were read. The defendants countered that they knew of Neumann's do-not-resuscitate order, but that calling 911 when she fell unconscious was the right move because Bensimon was not at the nursing home at the time and he wanted her immediately evaluated by a doctor.

After the verdict, an elated Bensimon rushed to greet jurors and thanked them for their decision. He offered handshakes to the men and hugs to the women.

"We felt he was a compassionate, well-caring doctor," said juror Ron Klebba of West Palm Beach. Fellow panelist Frank Breslin of Delray Beach said there was too much gray area to allow Neumann to die without an evaluation.

"We felt [Bensimon's] heart was in the right place," Breslin said.

But Morse Geriatric should have been better prepared to handle a situation like Neumann's, according to the jury.

"We just felt the procedures in the nursing home weren't in place," Klebba said.

Awareness of advance directives and self-determination has improved since the time of Neumann's death, said Jim Nosich, Bensimon's attorney.

"I think Terri Schiavo beat this case to the punch in terms of education," he said, referring to the Pinellas County woman whose case sparked a national debate on end-of-life issues.

Education and awareness -- not money -- was at the heart of Neumann's case, according to attorneys Jack Scarola and Marnie Poncy, who represented Scheible, Neumann's granddaughter and health-care surrogate.

"We undertook this case because of the importance of those legal issues," Scarola said. "The verdict confirmed the accuracy of this message."

The Schiavo case became a game of political football, according to Scarola, overshadowing the rights of health-care self-determination.

"Madeline Neumann is everybody's grandparent, everybody's parent," Scarola said. "This is what we can expect to happen to every single one of us. Nursing homes are now on notice that there are economic consequences to their neglect of these responsibilities."

Morse Geriatric attorneys Rachel Studley and Spike Wicker declined to comment.