The reality of Living -and dying – without respect by LAMBDA attny Beth Littrell

The Reality of Living – and Dying – Without Respect

By Beth Littrell, Staff Attorney

Published 07/30/08

On the campaign trail this spring, former presidential candidate Mike Huckabee touted the need for a federal constitutional amendment banning marriage equality and barring civil unions, claiming that legal documents can alleviate inequality in most matters of life. “The power of attorney would give same-sex couples a chance to visit one another at a hospital, transfer assets,” he said. “There are a lot of things that could be handled that don’t require a civil union.”

Tell that to Janice Langbehn.

Janice arrived at Jackson Memorial Hospital in Miami, Fl, at the same time as the ambulance carrying her life partner of 18 years, Lisa Pond. Forty-five minutes later, the hospital received Lisa’s durable power of attorney identifying Janice as the person authorized to make medical decisions. Eight hours later, Janice was still pleading with hospital employees to allow her, and their three jointly adopted children, permission to be with Lisa as she was taking her last breaths on this earth.

Janice and Lisa had all the paperwork they thought they needed: wills, living wills, joint mortgages and durable powers of attorney. The papers helped ensure that Janice and their kids were not thrown out of their home outside Olympia, Washington, and that she did not lose jointly held property when Lisa died. But they did not allow Janice to get Lisa’s death certificate from the state of Florida in order to apply for Social Security death benefits for their children. Nor did their paperwork provide access to Lisa’s remains so that Janice could keep some of Lisa’s ashes in the cross she wears around her neck.

These examples show the practical limitation on legal papers as substitutes for legal recognition. Janice was able to tell the doctors that Lisa did not want to be kept alive by artificial means, but she was not able to tell her partner goodbye. She was not able to comfort Lisa as she was passing away, and she was unable to get her kids by their mother’s side while Lisa could still perceive their presence. The power of attorney could not do what a marriage license or civil union would have done: It did not open the locked doors to the hospital room. It may, however, provide her lawyers with an additional means to hold the hospital accountable.

Lambda Legal, along with cooperating attorneys at Baker & McKenzie, LLP, filed a lawsuit on behalf of Janice, the estate of Lisa and their three children this past June, claiming that the hospital is vicariously liable for the negligent and/or intentional actions of its employees during those eight critical hours. The lawsuit does not allege medical malpractice, nor does it claim that the hospital refused to allow Janice to make medical decisions on Lisa’s behalf. Langbehn et al. v. The Public Health Trust of Miami-Dade County, et al., Case No. 08-21813-CIV, (S.D. Fla. 2008), does allege that the hospital employees negligently or intentionally prevented this family from being together on the last night of Lisa’s life, and as she moved inevitably closer to brain death. Hospital employees had no medical justification for their actions, which were in direct violation of internal policies, national hospital standards, professional codes of ethics and all notions of compassion and human civility.

Our lawsuit, applying age-old common law principles to modern-day problems, seeks to hold the hospital responsible for the pain and suffering Janice and the children endured as well as for the harm inflicted on Lisa. No one should be left to die alone when their closest family members are steps away. Either the employees actions fell well below the standard of care or well beyond the bounds of decency. Either way, our lawsuit seeks restitution for negligence, negligent infliction of emotional distress and/or intentional infliction of emotional distress.

Although our claims are grounded on well-established legal and ethical principles, the litigation is not without legal hurdles. Chief among these is the fact that Florida follows the minority view of negligence actions, called the “impact rule.” The impact rule requires that a plaintiff must prove either a physical impact from the defendant’s negligence or a physical injury flowing from it. Routinely criticized, the impact rule is often called into question by Florida appellate courts in dissenting opinions. Indeed, several Florida Supreme Court justices have made clear their disagreement with the continued application of this rule. See, e.g., Woodard v. Jupiter Christian School, 972 So.2d. 170 (Fla. 2007) (J. Pariente dissenting) (“as I have stated in each and every impact rule case that has been certified to this Court in the past several years, I believe the impact rule should be abolished.”).

That case, which involved a young gay student, illustrates the severity of this outdated rule. InWoodard v. Jupiter Christian School, 913 So.2d. 1188 (Fla. App. Dist. 4 2005), a student brought action against a private Bible-centered school for negligent infliction of emotional distress and other claims based on a chaplain’s disclosure of the student’s homosexuality to administrators, despite the chaplain’s express assurances that their conversation would be confidential. The student was subsequently shunned, berated and expelled. The appellate court upheld the grant of defendant’s motion to dismiss since the plaintiff could not prove physical injury.

The impact rule is riddled with exceptions, among them where a tortfeasor’s negligence is willful and wanton, and where the “foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Rowell v. Holt, 850 So.2d 474, 478 (Fla. 2003) (holding that impact rule does not preclude recovery for psychological injury due to attorney’s negligence).

Application of the foreseeability exception has allowed recovery where, for example, a person’s HIV status was revealed, Florida Dept. of Corrections v. Abril, 2007 WL 3024020 (Fla. 2007); where negligence caused the stillborn birth of a child, Rowell v. Holt, 850 So.2d 474, 479 (Fla. 2003); and where a psychologist revealed confidential information. Gracey v. Eaker, 837 So.2d. 348 (Fla. 2002). We believe the facts of our case trigger the exception. Our lawsuit also alleges that the plaintiffs each suffered physical injury resulting from the emotional stress they endured.

Regardless of its effect on the state’s impact rule, Langbehn v. The Public Health Trust is already having an impact on public opinion in Florida and beyond.  No longer can opponents of equality claim that hospitals never deny same-sex couples visitation principles. Janice and her children can attest that it does happen. They are also flesh and blood testaments that debunk the dangerous myth that same-sex couples do not need relationship recognition, they simply need legal documents. While wills and powers of attorney help – and we certainly believe all same-sex couples should have them – there are times when they are not readily available, are not honored or are recognized in the most limited fashion.

Janice’s experience also gives voice to the fear that this type of state-sanctioned discrimination will become even more prevalent in the face of Florida’s proposed constitutional amendment. The amendment seeks to ban same-sex marriage and, others might argue, prevent relationship recognition for all unmarried couples.

In other parts of the country, this case certainly illustrates the reality facing same-sex couples in states that deny their relationships legal recognition.We hope it will also set precedent that establishes the standard of care hospitals and their employees owe to their patients, and to their patients’ self-defined families.

At Jackson Memorial Hospital that fateful night, Janice watched as different-sex couples and their families were met with compassion, promptly provided information and escorted beyond the locked doors of the trauma unit to be with their loved ones. No tragedy should be compounded by prejudice. No family should suffer what Janice and her children endured that night. We hope to bring justice for Janice and her family and rights and remedies for us all by doing what Lambda Legal does best: making the case for equality.

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