A recent decision by Judge W. Hunt Dumont in Koener v. AHS Hospital Corp. (MRS-L-2983-13), presented a novel question and a sensible resolution. The plaintiff's decedent had signed a “do not resuscitate” and “do not intubate” directive at Morristown Medical Center. This was known to the hospital, her physicians, and nurses. She was 89 years old and living in an assisted living community.

When undergoing a Doppler procedure at the hospital, she went into cardiac arrest. Despite the orders, she was resuscitated and lived another six months. Unfortunately, she was then intubated, had daily pain from an arthritic condition, difficultly with breathing from an end-stage lung disease, chest pain, bowel and bladder problems, depression and dementia, incidents of falling, and a stroke making it difficult to communicate, speak and eat.

Defendants' motion for summary judgment was denied, and they moved for reconsideration, claiming that the New Jersey Advance Directive for Health Care Act, N.J.S.A. 26:2H-73, immunized them when lifesaving care is administered in violation of a health care directive. In 2016, the judge, drawing on concepts found in “wrongful birth” cases, had found that a cause of action existed here for “wrongful prolongation of life.” He likewise now rejected the alleged statutory bar to the claim. The act, he noted, immunizes medical personnel and institutions from civil and criminal liability when the patient's directive is carried out, not when it is ignored. The act protects “for actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.” (N.J.S.A. 26:2H-73(c), emphasis added). The judge found that the decedent's rights were violated when she “lived an additional six months in a diminished condition that included unwanted pain and suffering.”

The court relied on the Supreme Court's wrongful life cases in the opinion's extended analysis, in our view an imperfect analogy. It concluded that the decedent “had a well-established right to reject lifesaving treatment,” and that the damages for the finite period could be assessed by a jury. This right was violated, causing her pain and suffering. In this situation, the courts should provide refuge for the injured party, or, as here, her estate.

Questions come to mind. What if the directives had in their extended texts a waiver of claims such as these? May the statutory absolution be contractually expanded? Would such language be given effect? Would public policy preclude it? Can next of kin override the directives and agree to indemnify the providers against claims such as these? Such issues must await later decisions; but this case appears to be a proper first step in elucidating this expanding area of tort law.