First Healthcare Corp. v. Rettinger , 118 N.C. App. 600 ( 1995 )

EAGLES, Judge.

I.

Mrs. Rettinger argues that genuine issues of material fact exist, making summary judgment for Hillhaven improper. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... [viewed in the light most favorable to the non-moving party,] show that there is no genuine issue as to any material fact and that a[] party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c).

Mrs. Rettinger argues that genuine issues of material fact exist as to whether the requirements of G.S. 90-321 were met before the naso-gastric tube was removed by court order in September 1991. G.S. 90-321(b) provides:

If a person has declared ... a desire that his life not be prolonged by extraordinary means or by artificial nutrition or hydration, and the declaration has not been revoked . . . ; and

(1) It is determined by the attending physician that the declarant’s present condition is

a. Terminal and incurable; or

c. Diagnosed as a persistent vegetative state; and

(2) There is confirmation of the declarant’s present condition as set out above in subdivision (b)(1) by a physician other than the attending physician;

then extraordinary means or artificial nutrition or hydration, as specified by the declarant, may be withheld or discontinued upon the direction and under the supervision of the attending physician.

Here, Dr. Romm stated in his affidavit that he signed a form sent by Norman Sloan, Mr. Rettinger’s attorney, “which stated that Mr. Rettinger’s condition was terminal and incurable and ordered removal of the nasogastric tube.” The form, signed by Dr. Romm on 25 June 1991, provided:

I have examined Lawrence John Rettinger and have determined that his medical condition is terminal and incurable. Nutrition and hydration provided to Mr. Rettinger through a naso-gastric tube constitutes life-prolonging extraordinary means. Consistent with the Declaration of a Desire for a Natural Death executed by Lawrence J. Rettinger, I order the removal of the nasogastric tube. The family recognizes that implementation of Mr. Rettinger’s Declaration of a Desire for a Natural Death will result in Mr. Rettinger’s death within a relatively short period of time.

The language of this form conforms to the requirement in G.S. 90-321(b) that the attending physician determine that the declarant is terminal and incurable.

Hillhaven argues that Dr. Romm never told Hillhaven to remove the tube after he signed the form. However, the statute does not specify that the attending physician has to personally direct the facility to remove the tube. The statute simply provides that “extraordinary means . . . may be withheld or discontinued upon the direction and under the supervision of the attending physician.” Therefore, there is a genuine issue of material fact as to whether Dr. Romm’s order to remove the nasogastric tube in the 25 June 1991 form he signed satisfies the language of G.S. 90-321(b) that the attending physician direct the removal of the nasogastric tube and whether his order was communicated to Hillhaven.

G.S. 90-321(b) requires a physician other than the attending physician to confirm the attending physician’s conclusion that the declarant’s condition is terminal and incurable. Dr. Romm stated in his affidavit that “[t]he findings in the [25 June 1991] form were . . . never confirmed by another physician.” However, Norman Sloan stated in his affidavit that a second doctor was willing to confirm Dr. Romm’s findings at the time Dr. Romm signed the form. Judge Reingold’s September 1991 order, attached as Exhibit C to Hillhaven’s May 1993 complaint, included a finding of fact that “Dr. Michael Adler, a colleague of Dr. Romm, saw and observed Mr. Rettinger in July, 1991, and it is Dr. Adler’s opinion, which this court accepts, that Mr. Rettinger has severe Parkinson’s disease and dementia and there is confirmation of Mr. Rettinger’s present condition by Dr. Adler.” Judge Reingold’s finding of fact, combined with Mr. Sloan’s assertion in his affidavit, creates a material issue of fact as to whether the statute’s requirement of confirmation by a second doctor was met in July 1991. If the requirements of the statute were met in July 1991, then according to Hillhaven’s own policy, set out in its 20 June 1991 letter to Mr. Sloan, Hillhaven should have removed the nasogastric tube in July 1991.

II.

Hillhaven argues that Mrs. Rettinger is collaterally estopped by Judge Reingold’s order from “relitigating the issue of the reasonableness of [Hillhaven’s] conduct concerning removal of the feeding tube.” For collateral estoppel to apply:

(1) The issues to be concluded must be the same as those involved in the prior action; (2) in the prior action, the issues must have been raised and actually litigated; (3) the issues must have been material and relevant to the disposition of the prior action; and (4) the determination made of those issues in the prior action must have been necessary and essential to the resulting judgment.

King v. Grindstaff, 284 N.C. 348, 358, 200 S.E.2d 799, 806 (1973). Hillhaven bases its collateral estoppel argument on Judge Reingold’s finding of fact that:

It was reasonable for William L. Littlejohn, Jr., in his official capacity as Area Administrátor of Winston-Salem Convalescent Center, Winston-Salem Convalescent Center, the Hillhaven Corporation and Dr. Fredric Romm to refuse to consent to the family’s request that the nasogastric tube be withdrawn from Mr. Rettinger without a Court order authorizing withdrawal of the nasogastric tube.

Hillhaven’s argument that Judge Reingold’s finding of fact collaterally estops Mrs. Rettinger from “relitigating” the issue of Hillhaven’s actions fails because determination of the “reasonableness” of Hillhaven’s actions was not necessary for Judge Reingold to conclude that the statutory requirements had been met so the nasogastric tube should be removed. Accordingly, collateral estoppel does not apply here.

III.

Mrs. Rettinger also argues that summary judgment was not appropriate because she is not obligated to pay for medical services rendered by Hillhaven after 26 June 1991. Mrs. Rettinger argues that she had previously requested removal of the nasogastric tube and if her late husband’s declaration and her expressed wishes for the nasogas-tric tube to be removed had been honored, no other medical services would have been necessary. The plain language of the “Standard Nursing Facility Services Agreement” that Mrs. Rettinger signed when Mr. Rettinger was admitted to Hillhaven provided that Mrs. Rettinger agreed to pay for all services rendered to her husband. The agreement contains no language stating that Mrs. Rettinger would only pay for services she authorized. However, we have concluded above that there are genuine issues of material fact as to whether and when the requirements of G.S. 90-321(b), the living will statute, were met. If a jury determines that the requirements of the living will statute were complied with in July 1991, then the nasogastric tube should have been removed at that time. If the nasogastric tube had been removed in July 1991, it is likely that Mr. Rettinger would not have survived until 22 October 1991 and Mrs. Rettinger’s alleged financial obligation to Hillhaven would have been substantially less.

Accordingly, we reverse the summary judgment order and remand for trial to determine whether the requirements of G.S. 90-321(b) were satisfied in July 1991. If so, the factfinder will then need to determine how long after the nasogastric tube was removed would Mr. Rettinger have likely survived. If the requirements of G.S. 90-321(b) are found by the factfinder to have been met, Mrs. Rettinger will be responsible for paying for services rendered between 26 June 1991 and the date the factfinder determines Mr. Rettinger would have died if the tube had been removed in July 1991, but not for any costs incurred thereafter.

IV.

Hillhaven argues in their brief that Mrs. Rettinger guaranteed payment of the services rendered from 26 June 1991 until 22 October 1991. We have reviewed the agreement which Mrs. Rettinger signed and conclude that Mrs. Rettinger did not sign as a guarantor. Under the terms of the agreement, Mrs. Rettinger was a joint obligor. Accordingly, Hillhaven’s argument based on Mrs. Rettinger’s purported status as a guarantor fails.

V.

Hillhaven also argues that Mrs. Rettinger is liable for the services rendered under the doctrine of necessaries. We do not address this argument because we have already concluded that Mrs. Rettinger will be obligated to pay for the entire amount of medical services rendered by Hillhaven pursuant to the plain language of the agreement she signed unless the factfinder determines that the requirements of G.S. 90-321(b) were met in July 1991.

In sum, we reverse the entry of summary judgment and remand for trial.

Reversed and remanded.

Judge McGEE concurs. Judge WALKER dissents.