Hospital Fights Elder Abuse Lawsuit

Always decisive, 82-year-old Margaret Furlong gave Oxnard hospital staff members three documents stating that she wanted no life-extending heroic measures when she was admitted for abdominal pain.

Yet the former mayor of a British town was resuscitated and placed on life support after her heart stopped beating that night.

For the next 10 days, writhing in pain and tied to her bed, she remained hooked up to machines until her son prevailed upon doctors at St. John’s Regional Medical Center to allow her to die, attorneys say.

On Wednesday, lawyers representing her son told a Ventura-based state appellate court that the conduct of the hospital was so reckless that it constituted not medical negligence but elder abuse.

Attorneys Kathryn Tucker and Jody C. Moore say the unusual lawsuit, if allowed to proceed, could set precedent on an issue of interest to many elderly patients: whether their end-of-life wishes will be taken seriously.

Though Patrick Furlong’s lawsuit and a subsequent amended version were thrown out by a lower court, similar cases have been successfully appealed in California, said Tucker, a prominent right-to-die attorney who argued before a three-justice panel.

“This patient was forced to die exactly the death she had tried so hard to avoid,” she said. “That shouldn’t happen.”

The 2nd District Court of Appeal listened to arguments from both sides for 30 minutes. A ruling could take weeks or months.

Attorneys for the hospital and three doctors who treated her don’t dispute that Furlong brought written health directives when she went to St. John’s emergency room in March 2002 complaining of stomach pain.

But they contend that the medical staff simply failed to take notice of the documents and did not note her wishes on her hospital chart. Even if her treating physicians never questioned her directly, the errors were inadvertent, the defendants’ attorney argued.

In the lower court, Ventura County Superior Court Judge Steven Hintz agreed that the action should have been filed as a medical malpractice or negligence case instead of alleging elder abuse. He twice threw out Patrick Furlong’s lawsuit on that basis.

In their appeal, Tucker and co-counsel Jody C. Moore of Oxnard argued that the errors made by the hospital and the medical staff were so egregious that they constituted elder abuse.

“Multiple doctors saw her and none of them asked her, ‘What are your wishes?’ ” Tucker said.

But defense attorneys said the hospital and doctors were doing what they were supposed to do -- saving a life. The fact that they had missed do-not-resuscitate orders was a simple mistake, several of the attorneys argued.

“They are being called on the carpet for saving this woman’s life,” said attorney Andrew H. Covner, who represents treating physician Bennet Lipper.

Tucker said a jury should be allowed to hear the case so it can decide whether the facts show medical negligence or a reckless disregard for a dying woman’s wishes.

Tucker contended that Patrick Furlong could not file a medical negligence complaint because in California, damages for pain and suffering cannot be alleged by a dead person’s estate.

The Elder Abuse Act, passed in 1990, was created in part to close such loopholes, she said, encouraging attorneys to bring suit against errant nursing homes and other health facilities.

If the appellate court agrees with the lower court, “we could have a wrong with no remedy,” Tucker said. “That’s exactly what the Elder Abuse Act intended to avoid.”

Tucker is known in Oregon for representing several terminally ill patients who are challenging the federal government’s attempt to overturn that state’s Death With Dignity Act, which voters passed in 1994.

She served as co-counsel in the first California case to assert that failure to adequately treat pain constitutes elder abuse. That case, in Alameda County, resulted in a finding of liability and a jury award to the family of the patient.

Margaret Furlong was born and raised in Southampton, England, where she served as mayor before immigrating to the United States in 1963, said Patrick Furlong.

His mother had thought long and hard about what kind of end-of-life treatment she wanted as she became increasingly frail, said the son, a writer who lives in Colorado. It angers him that her last days were filled with pain and disappointment, Furlong said.

“I want to make as big a stink as I possibly can so this never, ever happens to anyone else’s mother,” he said.