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Couch v. Visiting Home Care Service of Ocean County

March 02, 2000

JOHN COUCH, PLAINTIFF-RESPONDENT,
v.
VISITING HOME CARE SERVICE OF OCEAN COUNTY AND OCEAN COUNTY HEALTH DEPARTMENT, DEFENDANTS-APPELLANTS.



Before Judges Pressler, Arnold, and Bilder.

The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2000

On appeal from Superior Court of New Jersey, Chancery Division, Ocean County.

These are appeals, consolidated for purpose of this opinion, by care givers, defendants Visiting Home Care Service of Ocean County and Ocean County Health Department, from an order of the Chancery Division requiring them to continue, for an indefinite period, home nursing care which, in their professional opinion, is beyond their capacity to provide and which, in their professional opinion, places their care givers, registered nurses, licensed practical nurses, and certified home health aides, in a dangerous situation viz-a-viz their professional licenses and their professional integrity.

I.

The salient facts are largely undisputed. Fifty year old plaintiff John Couch has suffered from multiple sclerosis since 1982 and has lived alone in a ground floor apartment in West Creek since 1983. Beginning in 1990 skilled intermittent nursing services have been provided to him at his home by the county acting through its own nurse employees and through home health services rendered by employees of its private contractor, Visiting Home Care Service. Since early 1998 he has been receiving two hour home visits by a certified home health aide twice a day and concurrent visits of shorter duration by a registered nurse once and sometimes twice a day; a weekly aggregate of about 33 hours when a trained professional is present in Mr. Couch's home.

Since 1994 Couch has been a quadriplegic, able to move only his head. Though the condition has caused progressive physical disability, his mental condition and intellect are unaffected.

In January 1998 Couch developed a decubitus ulcer on his buttocks. The condition was described by the treating surgeon, Dr. Matez, as grade 4, i.e. it went down to and affected the bone. The ulcer has been treated, and eighteen months ago, as of August 1998, was apparently under control. This type of condition is endemic to individuals who are confined to a position where constant pressure is exerted to one part of the body. These ulcers are, in layman's language, pressure sores. Dr. Matez described them thus: "One of the absolute hallmarks of treatment of a pressure sore is avoid pressure. In the hospitals we turn patients every two hours side to side to eliminate the pressure from one area to another. The more pressure you put on that area, the more tissue breakdown, the more potential to extend the wound or develop other wounds." The condition is insidious; it can start near the bone and work its way to the surface, initially showing only a superficial skin breakdown. It is also dangerous, capable of leading to an overwhelming systemic infection that can become life-threatening. Surgery was undertaken by Dr. Matez on February 17, 1998 with good result. An addendum to his operative notes of that date goes a long way toward explaining what underlies this litigation.

Extensive discussions with this patient were undertaken prior to this particular procedure. I had recommended to this patient in-patient care in a wound care center or possibly in-patient care here in our institution. At least I tried to encourage the patient to stay overnight. However, the patient adamantly refused hospital admission in any way, shape, or form on multiple occasions when we had these discussions. Therefore, he will be going home this evening on a same-day basis.

When asked why he was resisting a 24-hour care facility where help would be available all the time, plaintiff testified:

Well, believe me, I've thought about it for a long time. This is 1998, not 1698, and I have the ability to run my household and keep my affairs in order. And with the assistance I do get, everything is fine. I feel more comfortable there. I am able to eat what I want and when I want, almost, within their time frame. I'm able to pursue the interests that I have. And it's my form of being independent.

In his oral decision of August 27, 1998, the trial judge capsulized plaintiff's hunger for independence thus:

And John Couch has no backup from relatives. He is totally handicapped physically, but competent mentally. He wants to remain where he has [been] since 1990. He created an environment which has been safe and secure for nearly a decade. He is happy in his home. Everything that he owns is ...


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