On Sept. 15, in a medical malpractice case of first impression, the Honorable W. Hunt Dumont, J.S.C., ret., t/a on recall, in denying defendants' motion for summary judgment, recognized wrongful prolongation of life as a valid cause of action. Koerner v. Bhatt, ___ N.J.Super. ___ (Law Div. 2017). In doing so, the court held that an 89-year old plaintiff can recover money damages where a doctor fails to honor plaintiff's do not resuscitate (DNR) and do not intubate (DNI) orders.

Prior to a contemplated surgical procedure, in case she suffered a cardiac arrest during the surgery, plaintiff executed two such advance medical directive orders.

During the operation, plaintiff did, in fact, suffer a cardiac arrest. However, the defendants ignored plaintiff's DNR and DNI orders and resuscitated her. Plaintiff lived for six months thereafter.

Plaintiff's estate sued not only for the intubation performed contrary to plaintiff's wishes but also for her subsequent diminished quality of life. During her final six months of life, plaintiff was in daily pain from her arthritis, had difficulty breathing due to her end-stage lung disease, fell frequently, was confined to a wheelchair, suffered from bowl and bladder problems, had difficulty eating due to her breathing problems, had chest pains and increased depression and dementia. Additionally, prior to her death plaintiff suffered a stroke making it difficult to communicate and speak. By signing advance medical directives, plaintiff had expressed her intention that she did not want her life to be saved for this type of life.

Defendants, in support of their motion for summary judgment, argued that: (1) the New Jersey Advance Directive for Healthcare Act, N.J.S.A. 26:2H-73, immunized medical professionals; and (2) New Jersey's wrongful birth cause of action should not be expanded to include a cause of action for wrongful prolongation of life. Judge Dumont astutely, and properly, overruled both of these contentions.

The court pointed out that N.J.S.A. 26: 2H-73 “recognizes the inherent dignity and value of human life and within this context recognizes the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld or withdrawn.” Therefore the act immunizes health care professionals from “civil or criminal liability when a patient's wishes are actually carried out.”

However, in this case, defendants did not carry out their patient's wishes; they ignored her wishes and thereby “violated (plaintiff's) fundamental right to refuse unwanted medical care.” Therefore the act did not immunize defendants conduct.

Judge Dumont's decision to extend wrongful birth decisions, Berman v. Allan, 80 N.J. 421 (1979), and Procanik v. Cillo, 97 N.J. 339 (1984), so as to provide a remedy for the wrongful prolongation of life was both logical and timely. In doing so, the court pointed out that “(t)he primary purpose of tort law is to compensate plaintiffs for the injuries they have suffered wrongfully at the hands of others (and) … to deter conduct which causes personal injuries.”

In this case, defendants wrongfully ignored their patient's decision and right not to be intubated and resuscitated. This conduct caused plaintiff to suffer for six months — which is what she intended to avoid when she signed her DNR and DNI. This was her decision to make; not her doctors'.

Judge Dumont's decision is a logical extension of wrongful birth cases, which provide a cause of action to parents “deprived of their right to choose regarding the termination of the pregnancy.” In many such cases, plaintiffs decide, before birth, to avoid the pain and suffering which would continue during the entire life of their child. Certainly, then, a plaintiff should also have the right to recover damages for the deprivation of this same right after being born and for less time than one's entire life.

With respect to damages, the court properly noted that, in any tort claim, damages are calculated by “comparing the condition plaintiff would have been in, had the defendants not been negligent with plaintiff's impaired condition as a result of the negligence.” These damages would include medical expense incurred by the plaintiff during the six months she lived following defendants' ignoring her DNR and DNI orders. The court, quoting from Berman v. Allan, also recognized plaintiff's right, to damages as a result of her diminished quality of life, by pointing out that, although such damages are difficult to compute “with precise exactitude, it would be a perversion of fundamental principles of justice to deny all relief to the injured (party), and thereby relieve the wrongdoer from making any amend for his acts.”

This avant-garde decision of Judge Dumont completes the causes of action for the circle of life. New Jersey now permits a recovery for wrongful birth, wrongful life, and wrongful death. It also properly recognizes that, with respect to every person, it is the patient, not the doctor, who has the right to make life and death decisions.

Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.