Nature of the Case
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Facts
Rueben underwent surgery at D to remove a malignant tumor from his thymus gland. While Rueben was recovering in the post-operative intensive care unit, the ventilation tube that was supplying him with oxygen somehow became dislodged. He developed anoxic encephalopathy, a condition that left him in a persistent vegetative state. Rueben was discharged from D and admitted to other facilities that attempted rehabilitative treatments. He was readmitted to D with a diagnosis of renal failure. Further attempts at placement in another facility proved fruitless, and he remained at D until his death on May 29, 2009. Rueben had not executed an advanced directive under the Advanced Directives for Health Care Act. He had neither designated a health care representative nor memorialized 'specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment.' Rueben's attending physician, Dr. Millman, indicated that Rueben's kidneys had failed, his lungs had failed, he was intermittently septic, he had hypertensive heart disease and congestive heart disease, and his skin was breaking down. He had 'truly horrific decubitus ulcers' that had progressed to the bone, developing into osteomyelitis. Rueben was on a ventilator and received renal dialysis three times per week; he was fed through a tube into his stomach, given antibiotics, and was turned frequently in his bed. Dr. Schanzer explained that the cortical part of Rueben's brain had been irreversibly damaged. Rueben was in a permanent vegetative state, unable to speak or respond to verbal cues, and although Rueben's eyes were open and he appeared awake, he was not alert or aware of his environment. He believed that Rueben did not feel pain, and Rueben's responses to stimuli were due to basic reflexes of the brain stem and spinal cord. There was no chance that Rueben would ever regain a cognitive state. Dr. Goldstein, a nephrologist retained by P, stated that Rueben's current plan of dialysis 'comports in every way with the prevailing standards of care.' He explained that the dialysis had been effective in removing excess fluid and waste products from Rueben's body. Rueben was tolerating the treatment well, and it was not harmful or dangerous to him. Dr. McHugh stated that Rueben's death 'may take some time.' In fact, he opined that if treatment were continued at the present level, Rueben 'could go on for quite a while.' On cross-examination, McHugh admitted that Rueben's present medical treatment was harmful only in the sense that the doctors were continuing to treat a hopeless situation. D sought agreement from Rueben's family to place a DNR order and cease dialysis treatment. The family refused. D acted unilaterally, placing the DNR order in Rueben's chart as well as surgically removing a dialysis port from Rueben's body. P filed this action. The judge ordered D to re-establish treatment. P was appointed as her father's guardian and to make decisions. The court permanently restrained the hospital from discontinuing treatment to Rueben. This was memorialized in a March 20, 2009 order. D appealed. On May 29, 2009, Rueben died. P filed a motion to dismiss the appeal as moot.
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