A Death, Then Rage Against a System That Won’t Listen

Up to a point, we’ve all heard and sympathized before with stories like Donald Abernathy’s.

A loved one gets sick, and we put him or her in the hospital. Because we love that individual (let’s say the loved one is a spouse, parent or child), we get upset if we’re dissatisfied with the hospital’s care of the person.

For a moment, substitute your own spouse for Abernathy’s. Say you’ve been married 11 years, and your husband or wife gets sick. He or she gets violently ill one morning and is taken by ambulance to the nearest hospital.

Your spouse remains in the emergency ward without being admitted for about 12 hours because the hospital can’t find a doctor who will take the case, perhaps because you don’t have insurance and your spouse is judged to be terminally ill. Finally, your spouse is admitted and spends about two weeks in the hospital, hooked up to intravenous tubes. You assume your spouse is being fed intravenously, but then a nurse tells you one night that for the last several days, your spouse hasn’t been fed at all.

You go nuts and angrily demand that your spouse be fed. The next day, your spouse dies, and you’re furious at the hospital for what you claim was its decision to “play God” with your loved one.

Even for those of us who trust our hospitals, we can picture how something like that might conceivably happen.

Well, you say, the remedy is simple: The surviving spouse or family members can sue the hospital.

That’s what Abernathy decided to do.

But that’s where this story veers onto a road not nearly as well lighted.

Abernathy’s loved one was Scott DeMarco, his 31-year-old gay companion with whom he had lived for the past 11 years before Jan. 30, 1991, when the ambulance took DeMarco to Mission Hospital Regional Medical Center in Mission Viejo.

Sixteen days later, on Feb. 15, 1991, DeMarco died, sending Abernathy into uncharted territory with a rage that continues today.

For the last year, he has been looking for a lawyer to pursue his charge that the hospital mistreated DeMarco. Instead, what he’s found is that in legal terms, he has no standing because he and DeMarco weren’t blood relatives or involved in a legal spousal arrangement.

As a result, Abernathy, a 47-year-old former spa manufacturer with no legal experience, is handling the case himself.

He’s contending that the hospital mistreated DeMarco because he had AIDS and because he was uninsured. His suit claims that the hospital failed to administer antibiotics, blood transfusions and proper medication and that it “illegally withheld nourishment and other general care to provide needed medical treatment.”

A Mission Hospital spokeswoman declined to discuss the situation and referred my call to attorney Dana Susson, who is representing the hospital. A call to Susson’s office was not returned.

However, in response to a query from The Times on the subject last month, the hospital said it considers Abernathy’s claims “unfounded.”

But just as Abernathy found when he tried to get a lawyer to handle his case, the hospital is countering that Abernathy has no legal standing to sue the hospital. The case is pending in Orange County Superior Court.

“The doctor played God,” Abernathy said this week in the Laguna Niguel home he’s renting, still emotionally wrought over the situation. “It wasn’t up to the doctor. It was not Scott’s time to die. He might have died of AIDS, but he didn’t have to die Feb. 15. I was prepared for Scott to die from AIDS. I was not prepared for Scott to die because he had AIDS.”

Abernathy contends that on previous occasions, DeMarco had been told by doctors at other hospitals that he was near death, only to rebound. “AIDS is something you die from many times,” Abernathy said. “You don’t die just once. So you’ve got that trauma over and over again.”

Abernathy says his main motivation for filing the suit is to bring to light the hospital’s alleged mistreatment of DeMarco. But he also knows he’s touched a nerve about whether monogamous homosexual relationships should be respected by society.

Former Orange County gay rights attorney John Duran acknowledged the uphill nature of Abernathy’s legal challenge. Gay couples have no marital standing in California, although a statewide gay rights group is considering legislation to try to include that provision, Duran said.

“That’s what they tell me, that I’ve got no standing,” he said. “I’ve got standing. I don’t care what they say. We were together for 11 years. I’ve got standing. We were a family. It doesn’t take a piece of paper to say that. If the law says that, the law is wrong.”

Some future generation will sanction gay marriage. The recognition will come slowly, just as our whole awakening to the gay population has come in the last generation or so.

In the meantime, the Don Abernathys of the world will fight their solitary battles for the people they loved to the death but couldn’t defend.

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at The Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, Calif. 92626, or calling (714) 966-7821.