Monday, April 18, 2011

Bad health-care proxy wipes out constitutional claim

Plaintiff sued Nassau County when its emergency responders ignored her request to take her sick husband to the hospital of her choice and then physically prevented her from interfering with their emergency care. The district court allowed her constitutional claim against the County to proceed to trial, but it dismissed her claim against the individual defendants. In a rare procedural maneuver, the Court of Appeals rules against the plaintiff pre-trial.

The case is Stein v. County of Nassau, a summary order decided on April 8. The individual defendants sought qualified immunity in the district court, which denied that request in ruling that the emergency responders did not have an objectively reasonable basis to ignore Rita Stein's directive in light of a health care proxy which allowed her to make decisions for her ailing husband. In particular, the district court said that the scope of the health care proxy extends beyond decisions in the hospital setting.

This normally means that Stein's case against the individual defendants goes to trial. In the federal system, you cannot take up an appeal until the case is over, post-trial. One exception to this rule is when the district court thinks its ruling is subject to legitimate debate and that the Court of Appeals should hear the appeal right away. This rarely happens, because even if the district court certifies the case for interlocutory appeal, the Court of Appeals still has to agree to hear the case.

The Second Circuit (Lynch, Sack and Straub) decide to take the appeal. It rules for the individual defendants, but on grounds that no one anticipated. The Circuit says that "the parties' focus below on the scope of health care proxies masked what appears to be a fundamental flaw in Rita's constitutional claim: there is no evidence that Milton's treating physician took the statutorily required steps to empower Rita to act as Milton's agent." In other words, the health care proxy didn't count. In order for the health care proxy to count under New York law, the physician must decide that the principal (Rita's husband) lacks capacity to make health care decisions. That determination must be made in writing. As there is no evidence of that written determination here, "it is therefore highly unlikely that Rita had the authority to dictate where Milton would be treated. Absent such authority, there could be no constitutional deprivation."

The Second Circuit ruling does not give us any of the factual background, but it was quite a scene, according to the district court, which tells us:

Mrs. Stein advised the Individual Defendants that she was Mr. Stein's health care agent, and thus was authorized to make medical decisions on his behalf given his incapacitation. The Individual Defendants refused to honor Mrs. Stein's status as Mr. Stein's health care agent, even though Mrs. Stein showed them the duly executed proxy designating her as such. During his deposition, Defendant Diaz testified that Nassau County instructed him not to honor health care proxies. Plaintiffs contend that health care proxies are always valid, regardless of the setting. Defendants contend that health care proxies are "not valid in a pre-hospital setting."


Without Mrs. Stein's consent and over her objection, Defendant Barthelson lifted Mrs. Stein off the floor and carried her out of the Steins' bedroom. Mrs. Stein concedes that she "intentionally attempted to obstruct the Defendants from taking Milton Stein out of the house." But Mrs. Stein claims that she was entitled to do so, because Defendants were ignoring her instructions as Mr. Stein's health care agent.

This result in the Court of Appeals, I'm sure, is devastating for Rita. Not only is she not getting a trial against the individual defendants on her constitutional claim, but the health care proxy was irregular, which means she had no authority to make decisions for her now-deceased husband. Someone blew it. Perhaps aware that this procedural error is an awful way to lose the case, the Court of Appeals provides a back-up holding that further supports its conclusion that Rita should not get a trial. It rules that, even with a good health care proxy, it was objectively reasonable for the defendants to believe they had no obligation to follow Rita's directives. She did not tell defendants that the a treating physician had made an independent determination that Milton was incapacitated. "As a result, the Individual Defendants had no reason to believe that Rita had the authority to act on Milton's behalf."

There may still be a trial on the other claims, though. From the looks of it, Rita has traditional tort claims against the emergency responders, flowing from her forced removal from the bedroom. The Second Circuit decides in its discretion not to decide whether the district court properly ruled in Rita's favor against the County. While Rita has state-law claims against the individuals, the case is remanded to the district court to determine whether they are entitled to any state-law immunities.

No comments: