On appeal from the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 300 (1986).
For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi and Stein. Concurring in part and dissenting in part -- Justice O'Hern. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring in part, dissenting in part.
This appeal, here as of right because of Judge Long's dissent in the Appellate Division, R. 2:2-1(a)(2), poses important issues concerning the duty of health-care providers to turn over to the next of kin a family member's dead body. Plaintiffs' son's body had been maintained on a life-support system, a respirator, even after the parents had demanded that the system, be removed, following the unanimous conclusion of several physicians that the young man was brain dead.
A majority of the Appellate Division, reversing a judgment for plaintiffs after jury verdicts, determined that defendants, a hospital and its administrator, were guilty of "no actionable wrongdoing associated with withholding or mishandling the dead body." Strachan v. John F. Kennedy Memorial Hosp., 209 N.J. Super. 300, 314 (1986) (footnote omitted). The court below held as well that defendants "had no duty to provide consent forms or to have a procedure for turning off the respirator." Id. at 317. Finally, the majority below held that even if defendants owed plaintiffs a duty in the stated circumstances and a breach thereof were demonstrated, plaintiffs' emotional distress damages would be barred by Portee v. Jaffee, 84 N.J. 88 (1980). Id. at 321-22. We affirm in part and reverse in part.
Both the majority and dissenting opinions in the Appellate Division may profitably be consulted for their extensive factual recitations, with differing emphases. See 209 N.J. Super. at 304-11, and id. at 323-27. The pertinent facts may be summarized as follows.
At approximately 4:30 p.m. on Friday, April 25, 1980, twenty-year-old Jeffrey Strachan shot himself in the head in an apparent suicide attempt. He was rushed to John F. Kennedy Memorial Hospital (the Hospital), an acute care facility and one of the defendants in this case. At 5:25 that afternoon Dr. Hummel, the emergency room physician, diagnosed Jeffrey as brain dead. The doctor based his conclusion on several factors, including the absence of spontaneous respiration and reflexive movement, as well as the fact that both pupils were dilated and fixed. Dr. Hummel placed Jeffrey on a respirator.
Examination later that evening by Dr. Cohen, a neurosurgeon and one of the attending physicians, confirmed that Jeffrey was brain dead. The doctor explained that painful reality to plaintiffs and informed them that nothing could be done to restore brain function.
Because the Hospital is actively involved in organ transplants through its affiliate, the Delaware Valley Transplant Program, Dr. Cohen asked plaintiffs to consider donating Jeffrey's organs. He noted on the medical chart that the staff should proceed to "harvest" Jeffrey's organs if the parents gave their permission (the obvious implication being that there was no doubt about Jeffrey's status: he was dead). Because plaintiffs were uncertain about what to do, they deferred a decision and agreed to return in the morning. Jeffrey was then transferred to the intensive care unit, where he was continued on the life support system in order that the organs would remain in a condition for harvesting should the parents' decision be in favor of donation. Jeffrey's parents were allowed to "visit" him in the intensive care unit.
Plaintiffs returned the next morning, Saturday, April 26. They informed a Dr. Pinsler (whose connection with the hospital is not disclosed in the record) of their decision not to donate any of Jeffrey's organs. They also requested that he be taken off the respirator. Dr. Pinsler advised plaintiffs to "think it over some more." Plaintiffs also discussed their request with
Dr. Cohen. When Mr. Strachan asked a nurse when the machine would be turned off, he was informed that the hospital administrator had not given any order for the removal of the machinery, and that the removal could not be effected without such an order.
After speaking with Mr. Strachan that evening Dr. Venkat, also a neurosurgeon and an associate of Dr. Cohen, examined Jeffrey and agreed that the young man was brain dead. He noted plaintiffs' request to turn off the respirator, and indicated on the chart that "as soon as the hospital administrator tells us the procedure, we will do so."
Assistant administrator and nursing director Jeanette Licorice communicated with defendant Pirolli, the hospital administrator, late that same evening. Pirolli in turn called the Hospital's general counsel, Edward Sullivan, for advice. Sullivan suggested that the Hospital obtain plaintiffs' consent for removal of the respirator. He also indicated that the Hospital should run two electroencephalograms (EEGs), twenty-four hours apart, to get a "clear understanding of what the boy's condition is." He suggested to Pirolli that a court order might be obtained as an alternative to a medical decision to turn off the respirator. Another possible solution offered by Sullivan was the convening of a Prognosis Committee to assist the physicians in the decision to pronounce the patient dead.
The results of the two EEGs confirmed that Jeffrey was indeed brain dead. The Hospital authorities did not convene a Prognosis Committee. Dr. Weinstein, also a neurosurgeon engaged in practice with Drs. Cohen and Venkat, made an entry on Jeffrey's chart for Monday, April 28, 1980, indicating: "patient officially brain dead and by hospital regulations we may discontinue respiration c [with] family's permission." Plaintiffs signed a release requesting Jeffrey's removal from life-support systems. The release provided:
We have been advised by the attending physicians of our son, Jeffrey Strachan, that he has been declared "brain dead." It is therefore requested
that all life support-life-support-death devices [sic] be discontinued as soon as possible.
In making this request we are fully aware of our legal responsibilities and further hold harmless John F. Kennedy Memorial Hospital and the attending physicians with regard to discontinuance of life support devices.
At 4:05 p.m., Dr. Weinstein disconnected the respirator. Dr. Santoro pronounced Jeffrey dead and executed a death certificate, after which Jeffrey's body was turned over to his family for burial.
Plaintiffs thereafter instituted this action against the Hospital, administrator Pirolli, the physicians involved, and the Delaware Valley Transplant Program and its representative Stephen Sammut. The action against the physicians, the transplant program, and Sammut was voluntarily dismissed prior to trial, and the case proceeded against the Hospital and administrator Pirolli only. At the conclusion of trial the court instructed the jury on the bases of liability, including respondeat superior, under which the Hospital would be liable if Pirolli were found liable. The court then submitted the matter to the jury with special interrogatories, including the following:
1(a) Did defendant, Augustine R. Pirolli, have a duty to have procedures in place for the removal of Jeffrey Strachan from the life support systems when requested by his parents, and willfully and wantonly fail to do so, as alleged by the plaintiffs?
2(a) Did the defendant, Augustine R. Pirolli, have a duty to have procedures in place for the removal of Jeffrey Strachan from the life support systems when requested by his parents, and ...