Choose Life: Whose Decision is it Anyway?

When discussing health care, rationing has become a dirty word. By using the term rationing people generally mean the decision as to when to provide or withhold medical care. It has become one of the key criticisms of President Obama's plan to reform health care that, by necessity, care which is now provided will be withheld for those who are very sick, or not quite sick enough. it may come as a surprise to some that decisions to provide or withhold care are already made on a daily basis. Insurance companies and medical practitioners sometimes have gone to Court to enforce their decisions not to provide care.

One recent example is a case that is currently working its way through the New Jersey state courts. Ruben Betancourt, was a 73 year old man from Elizabeth, He went to Elizabeth's Trinitas Hospital for an opeartion to remove a malignant tumor. During the procedure he slipped into unconsciousness, and remained in a vegitative state for the next 14 months. He was treated at a variety of hospitals until July 2008 when he was readmitted to Trinitas for treatment associated with kidney failure. At that time, against the family's wishes, Trinitas doctors made the decision to take him off of life support.

The hospital's notes indicated that Betancourt "does not respond to pain or move his extremities and only makes reflexive eye movements." However Betancourt's family protested and said that Betancourt responded to "external stimuli" and they pointed to other medical notes indicating theat Betancourt was "awake."

The family made an emergency petition to the Union County Superior Court and Judge John Malone ruled that "life-support decisions should not be made by care givers or courts but in accordance with a patient's rights." If the patient was not able to express his wishes it is his immediate family that must make the decision for the patient based upon what the patient would want.

Judge Malone's decision was based upon the principle that just as a patient has the right through either the use of a conscious declaration, a living will, or a representative surrogate to make the decision to withhold heroic life saving measures, the patient has the right to insist upon all measures available which will extend the patient's life.

Ruben Betancourt died shortly after Judge Malone's decision was rendered. Normally that would be the end. But Trinitas made a somewhat surprising decision. Trinitias reasoned that the scenario that occurred with Betancourt would likely to reoccur and they appealed.

The crux of Trinitas' argument is that the determination of life and death is a conclusion that legally only belongs to a medical provider. Betancourt's condition was futile. Just as a doctor is not required to infinitely provide CPR to a patient whose heart will not start on its own, when life is only being sustained mechanically, Trinitas argued, a hospital can decide to withdraw artifical measures of life sustenance.

In other words because Betancourt was in a grave condition, even though he was alive, keeping him on life-support, when doctors determined he would not recover is a waste of resources. This is a cost based rationale, the very definition of rationing, and even without healthcare-reform, and private insurance available, Trinitas is asking for New Jersey Appellate Courts to rule in its favor.

As an Appellate level case, whatever decision is made could have a precedential effect and as such it has attracted the attention of external interested parties. The New Jersey Hospital Association, the Catholic HealthCare Partnership of New Jersey and the Medical Society of New Jersey will be submitting briefs in favor of the hospital which according to its mission statement is "a Catholic hospital sponsored by the Sisters of Charity." Additionally there will be briefs supporting the family submitted by two Jewish groups: Agudath Israel of America and the Rabbinical Council of America. While Ruben Betancount was not Jewish, the Jewish groups, with Betancourt's family's blessing, sought to have their opinion heard to further the principal under Jewish law that places the importance of existing life above all external factors.

The case will be heard this Autumn by the New Jersey Appellate Division. The decision should make an interesting side note to the debate regarding the nature of healthcare in this country. What it is, what we want from it and the shape it should ultimately take.

The Consequences of Speech

The adage about sticks and stones may hold true on the playground, but as we've seen in a spate of recent lawsuits the part about names never hurting does not necessarily hold sway in the American judicial system.

Within the past few months there have been highly publicized defamation suits involving a Chicago landlord against one of its tenants who alleged mold in her apartment, a model against an anonymous poster who blogged that the model was a "skanky superstar." We saw a suit this summer filed by real estate mogul Donald Trump against an author who alleged that his personal wealth is not nearly as much as he claims, and competing lawsuits by former major leaguer Roger Clemens and his one-time trainer and friend Brian McNamee over Clemens' alleged use of steroids during his playing career. Clemens' and Trump's suits were dismissed.

The basic premise of defamation is that a statement, or published remark has hurt the reputation of the person who is the intended target. The immediate knee-jerk defense is that in America we have "freedom of speech."

To a degree it is true that we can say or write anything we want. However like everything. Freedom of speech is not absolute. Or as Justice Oliver Wendell Holmes once put it, "free speech would not protect a man falsely shouting fire in a theater." If the statement is harmful, it has been heard (and believed) it is untrue, and it can be shown to have caused real damage to the target's reputation, the speaker can be successfully sued.

The Supreme Court in a famous 1960's case New York Times vs. Sullivan added a prong when dealing with public figures or issues of public import. The court in 1964 said that the defemation must be one based on "malice." Malice in this case does not mean that a reporter actually had spite -- the layman's understanding of malice, but rather, it is in this case a term of art, meaning that the reporter had no regard for accurate reporting. In this manner, the malice is towards the truth, not the defamed party. The concept behind Times v Sullivan is that actual reporters need to be given leeway with respect to the First Amendment for fear that if the press are afraid to be sued for good-faith errors, which turn out to be defamatory, matters of public import will go unreported.

However over the years critics have argued that this distinction between reporters, and various categorizing of subjects is dubious. Non-professional media don't get the benefit of doubt of "bonafide" press. And statements involving allegations that your non-famous neighbor has a proclivity to take money to perform sexual favors are actionable without your neighbor proving actual malice, even if you had a well reasoned belief that all of her various male visitors parking next door in the middle of the night, were not simply visiting to check on her well-being.

With the upstart of new media, such as blogs (like this), tweets and postings on sites like Facebook and My Space. The game has shifted. Traditional press have tried to maintain the distniction between profession and private reporters. The press has argued that traditional media are subject to ethical rules and codes of conduct, and editorial and fact-checking standards that bloggers don't have. This is so, even when, as it so happens often blogs are the first to report on stories that are only later picked up in traditional press and where the traditional press has been shown from time to time to suffer from a lack of the standards they profess. Some argue that the distinction between a professional press and new media should not apply.

However the critics differ in the best way to resolve the distinction: Some argue that bloggers should get the same benefit of doubt as professional reporters. Others argue that professional reporters should not be treated with any more protection than any one else who writes.

Courts, to date have mainly upheld the distinction between professional reporters and non-professionals. For that reason, Liskula Cohen was successful in getting Google to name the author of the "skank" comment and Horizon Group Management was able to sue Amanda Bonnen over her tweet "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay" which when at first posted was seen by less than 100 people.

Horizon's lawyer said the company is a "sue first, ask questions later kind of an organization." Bonnen's attorney responded that the Company is acting the bully in order to forestall others from asking legitimate questions. This lawsuit brings to life the exact fears that the Supreme Court expressed in requiring the malicious intent standard in Times vs. Sullivan.

Will the standard change? It will eventually have to. New media requires a new look at reporting, what exactly it means, and how to protect parties from untruthful and malicious smears. What the new standard will look like may not take shape for a decade or more. But until we know, there is one thing that anyone who blogs, tweets or posts should be aware of: While you have the right to say anything you want, it does not mean that you have the right to free from the consequences of what you say.