On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-12-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Ashrafi.
Rueben Betancourt*fn1 underwent surgery at defendant Trinitas Hospital (defendant, the hospital or Trinitas) to remove a malignant tumor from his thymus gland. The surgery went well, but while Rueben was recovering in the post-operative intensive care unit, the ventilation tube that was supplying him with oxygen became dislodged. As a result, his brain was deprived of oxygen, and he developed anoxic encephalopathy, a condition that left him in a persistent vegetative state. Ultimately, among other treatment, he required dialysis three times per week, was maintained on a ventilator, developed decubitis ulcers that had developed into osteomylitis and was fed with a feeding tube. After various unsuccessful attempts to resolve the issue of continued treatment with Rueben's family, defendant and various doctors, claiming that continued treatment would be futile and violated the standard of care, placed a Do Not Resuscitate (DNR) order in Rueben's chart. In addition, defendant declined to provide further dialysis treatment.
Plaintiff Jacqueline Betancourt, Rueben's daughter, filed an action to enjoin defendant from implementing such order. After appointing plaintiff as Rueben's guardian and following a hearing, Judge Malone, in the Chancery Division, restrained defendant from withholding treatment. This appeal followed, but within three months of the judge's order requiring reinstatement of treatment, Rueben died. Plaintiff moved to dismiss the appeal as moot, and we reserved decision on the motion pending review of the full record and arguments of the parties. Although we recognize the significance of the issues raised by the parties and amici on appeal, we conclude that both the lack of an adequate factual record as well as the limited, but unique, factual context presented, warrant dismissal of the appeal as moot.
We provide an expanded statement of the relevant facts adduced from the limited record before us. On January 22, 2008, Rueben underwent surgery at defendant to remove a malignant tumor from his thymus gland. As we previously stated, the surgery went well, but while Rueben was recovering in the postoperative intensive care unit, the ventilation tube that was supplying him with oxygen somehow became dislodged.*fn2 As a result, his brain was deprived of oxygen, and he developed anoxic encephalopathy, a condition that left him in a persistent vegetative state.
Rueben was subsequently discharged from defendant and admitted to other facilities that attempted rehabilitative treatments. He was readmitted to defendant on July 3, 2008, however, with a diagnosis of renal failure. Further attempts at placement in another facility proved fruitless, and he remained at defendant until his death on May 29, 2009.
At the time of his death, Rueben had not executed an advanced directive under the New Jersey Advanced Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78,(the Advanced Directive Act or 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." N.J.S.A. 26:2H-58b.
Witnesses for both parties to the dispute presented disparate views of both Rueben's condition, the impact of treatment and prognosis. At the hearing, Rueben's attending physician, Dr. Arthur E. Millman, indicated that Rueben was a seventy-three-year-old man who was suffering from multi-system organ failure; his 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.
Millman stated that Rueben's most overwhelming problem was his permanent anoxic encephalopathy. He described Rueben's neurological state as "non-cognitive" with no higher mental functioning. He did believe, however, that Rueben was responsive to pain because he had personally witnessed Rueben's reactions to it. There had been no change in Rueben's neurological condition since he was admitted in July 2008, and Millman believed that the likelihood of his return to cognizant function was "virtually zero."
Dr. Bernard Schanzer, Chief of Neurology at defendant, corroborated most of Millman's views concerning Rueben's neurological condition. He explained that the cortical part of Rueben's brain had been irreversibly damaged. As a result, 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. Schanzer disagreed with Millman, however, concerning Rueben's ability to experience pain. 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. He opined that there was no chance that Rueben would ever regain a cognitive state.
Dr. Maria Silva Khazaei, a nephrologist, concluded that Rueben was suffering from end-stage renal disease, and there was no likelihood of improvement. She opined that it was contrary to accepted standards of medical care to continue dialysis treatments because they only prolonged Rueben's dying process.
Not surprisingly, plaintiff's consulting nephrologist had a different opinion. Dr. Carl Goldstein, a nephrologist retained by plaintiff, 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 ...