[591] [592] ARGUED: Julia Krebs-Markrich, John E. Coffey, Hazel & Thomas, P.C., Falls Church, Virginia; Pleasant S. Brodnax, III, Alexandria, Virginia, for Appellants. Ellen Joanne Flannery, Covington & Burling, Washington, D.C., for Appellee. ON BRIEF: Jennifer L.W. Korjus, Hazel & Thomas, P.C., Falls Church, Virginia; Kenneth E. Labowitz, Young, Goldman & Van Beek, Alexandria, Virginia, for Appellants. Debra Ann Palmer, Richard W. Buchanan, Theodore M. Hirsch, Georgia Kazakis, Covington & Burling, Washington, D.C., for Appellee. Alison Paige Landry, ReNee D. Brooks, Department for Rights of Virginians with Disabilities, Richmond, Virginia, for Amicus Curiae Department for Rights of Virginians with Disabilities; Walter A. Smith, Jr., Stephan E. Lawton, Anne M. Dellinger, Laura E. Loeb, Hogan & Hartson, Washington, D.C., for Amici Curiae American Academy of Pediatrics and Society of Critical Care Medicine.

Before WILKINS and WILLIAMS, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

WILKINS, Circuit Judge:

The Hospital^[1] instituted this action against Ms. H, Mr. K, and Baby K, seeking a declaratory judgment that it is not required under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C.A. § 1395dd (West 1992),^[2] to provide treatment other than warmth, nutrition, and hydration to Baby K, an anencephalic infant. Because we agree with the district court, 832 F.Supp. 1022, that EMTALA gives rise to a duty on the part of the Hospital to provide respiratory support to Baby K when she is presented at the Hospital in respiratory distress and treatment is requested for her, we affirm.

I.

Baby K was born at the Hospital in October of 1992 with anencephaly, a congenital malformation in which a major portion of the brain, skull, and scalp are missing. While the presence of a brain stem does support her autonomic functions and reflex actions, because Baby K lacks a cerebrum, she is permanently unconscious. Thus, she has no cognitive abilities or awareness. She cannot see, hear, or otherwise interact with her environment.

When Baby K had difficulty breathing on her own at birth, Hospital physicians placed her on a mechanical ventilator. This respiratory support allowed the doctors to confirm the diagnosis and gave Ms. H, the mother, an opportunity to fully understand the diagnosis and prognosis of Baby K's condition. The physicians explained to Ms. H that most anencephalic infants die within a few days of birth due to breathing difficulties and other complications. Because aggressive treatment would serve no therapeutic or palliative purpose, they recommended that Baby K only be provided with supportive care in the form of nutrition, hydration, and warmth. Physicians at the Hospital also discussed with Ms. H the possibility of a "Do Not Resuscitate Order" that would provide for [593] the withholding of lifesaving measures in the future.

The treating physicians and Ms. H failed to reach an agreement as to the appropriate care. Ms. H insisted that Baby K be provided with mechanical breathing assistance whenever the infant developed difficulty breathing on her own, while the physicians maintained that such care was inappropriate. As a result of this impasse, the Hospital sought to transfer Baby K to another hospital. This attempt failed when all of the hospitals in the area with pediatric intensive care units declined to accept the infant. In November of 1992, when Baby K no longer needed the services of an acute-care hospital, she was transferred to a nearby nursing home.

Since being transferred to the nursing home, Baby K has been readmitted to the Hospital three times due to breathing difficulties. Each time she has been provided with breathing assistance and, after stabilization, has been discharged to the nursing home. Following Baby K's second admission, the Hospital filed this action to resolve the issue of whether it is obligated to provide emergency medical treatment to Baby K that it deems medically and ethically inappropriate. Baby K's guardian ad litem and her father, Mr. K, joined in the Hospital's request for a declaration that the Hospital is not required to provide respiratory support or other aggressive treatments. Ms. H contested the Hospital's request for declaratory relief. After the district court issued its findings of fact and conclusions of law denying the requested relief, the Hospital, Mr. K, and Baby K's guardian ad litem (collectively referred to as the "Hospital") noticed this appeal.

II.

Congress enacted EMTALA in response to its "concern that hospitals were `dumping' patients [who were] unable to pay, by either refusing to provide emergency medical treatment or transferring patients before their emergency conditions were stabilized." Brooks v. Maryland Gen. Hosp. Inc., 996 F.2d 708, 710 (4th Cir.1993). Through EMTALA, Congress sought "to provide an `adequate first response to a medical crisis' for all patients," Baber v. Hospital Corp. of America, 977 F.2d 872, 880 (4th Cir.1992) (quoting 131 Cong.Rec. S13904 (daily ed. Oct. 23, 1985) (statement of Sen. Dole)); see also Brooker v. Desert Hosp. Corp., 947 F.2d 412, 415 (9th Cir.1991) (holding that EMTALA applies "to any and all patients"); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 (D.C.Cir. 1991) (same); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268 (6th Cir.1990) (same), by imposing two duties on hospitals that have entered into Medicare provider agreements.

First, those hospitals with an emergency medical department must provide an appropriate medical screening to determine whether an emergency medical condition exists for any individual who comes to the emergency medical department requesting treatment. 42 U.S.C.A. § 1395dd(a).^[3] A hospital fulfills this duty if it utilizes identical screening procedures for all patients complaining of the same condition or exhibiting the same symptoms. See Baber, 977 F.2d at 879 n. 6.

An additional duty arises if an emergency medical condition is discovered during the screening process. See 42 U.S.C.A. § 1395dd(b). EMTALA defines an "emergency medical condition" as including:

a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in —

[594] (i) placing the health of the individual ... in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

42 U.S.C.A. § 1395dd(e)(1)(A).^[4] When an individual is diagnosed as presenting an emergency medical condition:

the hospital must provide either —

(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or

(B) for the transfer of the individual to another medical facility in accordance with subsection (c) of this section.

42 U.S.C.A. § 1395dd(b)(1). The treatment required "to stabilize" an individual is that treatment "necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility." 42 U.S.C.A. § 1395dd(e)(3)(A). Therefore, once an individual has been diagnosed as presenting an emergency medical condition, the hospital must provide that treatment necessary to prevent the material deterioration of the individual's condition or provide for an appropriate transfer to another facility.

In the application of these provisions to Baby K, the Hospital concedes that when Baby K is presented in respiratory distress a failure to provide "immediate medical attention" would reasonably be expected to cause serious impairment of her bodily functions. See 42 U.S.C.A. § 1395dd(e)(1)(A). Thus, her breathing difficulty qualifies as an emergency medical condition, and the diagnosis of this emergency medical condition triggers the duty of the hospital to provide Baby K with stabilizing treatment or to transfer her in accordance with the provisions of EMTALA. Since transfer is not an option available to the Hospital at this juncture,^[5] the Hospital must stabilize Baby K's condition.

The Hospital acknowledged in its complaint that aggressive treatment, including mechanical ventilation, is necessary to "assure within a reasonable medical probability, that no material deterioration of Baby K's condition is likely to occur." Thus, stabilization of her condition requires the Hospital to provide respiratory support through the use of a respirator or other means necessary to ensure adequate ventilation. In sum, a straightforward application of the statute obligates the Hospital to provide respiratory support to Baby K when she arrives at the emergency department^[6] of the Hospital in [595] respiratory distress and treatment is requested on her behalf.^[7]

III.

In an effort to avoid the result that follows from the plain language of EMTALA, the Hospital offers four arguments. The Hospital claims: (1) that this court has previously interpreted EMTALA as only requiring uniform treatment of all patients exhibiting the same condition; (2) that in prohibiting disparate emergency medical treatment Congress did not intend to require physicians to provide treatment outside the prevailing standard of medical care; (3) that an interpretation of EMTALA that requires a hospital or physician to provide respiratory support to an anencephalic infant fails to recognize a physician's ability, under Virginia law, to refuse to provide medical treatment that the physician considers medically or ethically inappropriate; and (4) that EMTALA only applies to patients who are transferred from a hospital in an unstable condition. We find these arguments unavailing.^[8]

A.

Relying on the decisions of this court in Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir.1992), and Brooks v. Maryland Gen. Hosp. Inc., 996 F.2d 708 (4th Cir.1993), the Hospital contends that it is only required to provide Baby K with the same treatment that it would provide other anencephalic infants —supportive care in the form of warmth, nutrition, and hydration. The Hospital quotes language from Baber and Brooks as supporting the proposition that EMTALA only requires participating hospitals to provide uniform treatment to all patients exhibiting the same emergency medical condition. Advancing the proposition that anencephaly, as opposed to respiratory distress, is the emergency medical condition at issue, the Hospital concludes that it is only required to provide uniform treatment to all anencephalic infants. We disagree.

In Baber and Brooks, this court addressed the "appropriate medical screening" requirement of EMTALA. In the absence of a statutory definition for this term, we concluded that it should be defined as requiring participating hospitals to apply uniform screening procedures to all individuals coming to the emergency room of the hospital requesting treatment. Baber, 977 F.2d at 880; Brooks, 996 F.2d at 710-11. These cases dealt with screening procedures; neither addressed a hospital's duty to provide stabilizing treatment for an emergency medical condition.

With this issue now before us, we conclude that the duty of the Hospital to provide stabilizing treatment for an emergency medical condition is not coextensive with the duty of the Hospital to provide an "appropriate medical screening." Congress has statutorily defined the duty of a hospital to provide stabilizing treatment as requiring that treatment necessary to prevent the material deterioration of a patient's condition. 42 U.S.C.A. § 1395dd(e)(3)(A). If, as the Hospital suggests, it were only required to provide uniform treatment, it could provide any level of treatment to Baby K, including a level of treatment that would allow her condition to materially deteriorate, so long as the care she was provided was consistent with the care provided to other individuals. See Baber, 977 F.2d at 879 n. 7 ("[H]ospitals could theoretically avoid liability by providing very cursory and substandard screenings to [596] all patients. . . ."). The definition of stabilizing treatment advocated by the Hospital directly conflicts with the plain language of EMTALA.

As we have previously stated, "it is not our role to rewrite legislation passed by Congress. When a statute is clear and unambiguous, we must apply its terms as written." Baber, 977 F.2d at 878. The terms of EMTALA as written do not allow the Hospital to fulfill its duty to provide stabilizing treatment by simply dispensing uniform treatment. Rather, the Hospital must provide that treatment necessary to prevent the material deterioration of each patient's emergency medical condition. In the case of Baby K, the treatment necessary to prevent the material deterioration of her condition when she is in respiratory distress includes respiratory support.

Even if this court were to interpret EMTALA as requiring hospitals to provide uniform treatment for emergency medical conditions, we could not find that the Hospital is only required to provide Baby K with warmth, nutrition, and hydration. As the Hospital acknowledged during oral argument, Baby K resides at the nursing home for months at a time without requiring emergency medical attention. Only when she has experienced episodes of bradypnea or apnea^[9] has Baby K required respiratory support to prevent serious impairment of her bodily functions. It is bradypnea or apnea, not anencephaly, that is the emergency medical condition that brings Baby K to the Hospital for treatment. Uniform treatment of emergency medical conditions would require the Hospital to provide Baby K with the same treatment that the Hospital provides all other patients experiencing bradypnea or apnea. The Hospital does not allege that it would refuse to provide respiratory support to infants experiencing bradypnea or apnea who do not have anencephaly. Indeed, a refusal to provide such treatment would likely be considered as providing no emergency medical treatment. See Baber, 977 F.2d at 879 n. 7 (stating that the provision of cursory medical screenings might be considered a failure to screen).

B.

The second argument of the Hospital is that, in redressing the problem of disparate emergency medical treatment, Congress did not intend to require physicians to provide medical treatment outside the prevailing standard of medical care. The Hospital asserts that, because of their extremely limited life expectancy and because any treatment of their condition is futile, the prevailing standard of medical care for infants with anencephaly is to provide only warmth, nutrition, and hydration. Thus, it maintains that a requirement to provide respiratory assistance would exceed the prevailing standard of medical care. However, the plain language of EMTALA requires stabilizing treatment for any individual who comes to a participating hospital, is diagnosed as having an emergency medical condition, and cannot be transferred. 42 U.S.C.A. § 1395dd(b). "[I]n the absence of `a clearly expressed legislative intent to the contrary,'" unambiguous statutory language is ordinarily conclusive. United States v. Blackwell, 946 F.2d 1049, 1052 (4th Cir.1991) (quoting Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983)). The Hospital has been unable to identify, nor has our research revealed, any statutory language or legislative history evincing a Congressional intent to create an exception to the duty to provide stabilizing treatment when the required treatment would exceed the prevailing standard of medical care. We recognize the dilemma facing physicians who are requested to provide treatment they consider morally and ethically inappropriate, but we cannot ignore the plain language of the statute because "to do so would `transcend our judicial function.'" Baber, 977 F.2d at 884 (quoting Iselin v. United States, 270 U.S. 245, 250-51, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926). The appropriate branch to redress the policy concerns of the Hospital is Congress.

[597] C.

The Hospital further argues that EMTALA cannot be construed to require it to provide respiratory support to anencephalics when its physicians deem such care inappropriate, because Virginia law permits physicians to refuse to provide such care. Section 54.1-2990 of the Health Care Decisions Act (HCDA) of Virginia provides that "[n]othing in this article shall be construed to require a physician to prescribe or render medical treatment to a patient that the physician determines to be medically or ethically inappropriate." Va.Code Ann. § 54.1-2990 (Michie Supp.1993). The Hospital maintains that EMTALA only obligates a hospital to provide stabilizing treatment "within the staff and facilities available at the hospital," 42 U.S.C.A. § 1395dd(b)(1)(A). It reasons that because its physicians object to providing respiratory support to anencephalics, it has no physicians available to provide respiratory treatment for Baby K and, therefore, is not required by EMTALA to provide such treatment. We disagree.

The duty to provide stabilizing treatment set forth in EMTALA applies not only to participating hospitals but also to treating physicians in participating hospitals. 42 U.S.C.A. § 1395dd(d)(1)(B). EMTALA does not provide an exception for stabilizing treatment physicians may deem medically or ethically inappropriate. Consequently, to the extent § 54.1-2990 exempts physicians from providing care they consider medically or ethically inappropriate, it directly conflicts with the provisions of EMTALA that require stabilizing treatment to be provided.

It is well settled that state action must give way to federal legislation where a valid "act of Congress, fairly interpreted, is in actual conflict with the law of the state," Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct. 715, 726, 56 L.Ed. 1182 (1912), and EMTALA provides that state and local laws that directly conflict with the requirements of EMTALA are preempted. 42 U.S.C.A. § 1395dd(f). The Hospital does not allege that EMTALA is an invalid act of Congress. Therefore, to the extent that § 54.1-2990 applies to medical treatment decisions on behalf of infants^[10] and to the extent that § 54.1-2990 exempts treating physicians in participating hospitals from providing care they consider medically or ethically inappropriate, it is preempted — it does not allow the physicians treating Baby K to refuse to provide her with respiratory support.

D.

The final contention advanced by the Hospital is that EMTALA only applies to patients who are transferred from a hospital in an unstable condition. The Hospital grounds this argument on the definition of stabilizing treatment as that treatment "necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility." 42 U.S.C.A. § 1395dd(e)(3)(A) (emphasis added). According to the Hospital, the use of the word "transfer" limits the duty of hospitals and physicians to provide stabilizing treatment to situations in which the patient is to be subsequently transferred to another facility. The end result of this reasoning would allow hospitals and physicians to avoid providing stabilizing treatment by simply refusing to transfer the patient or, as in the case of Baby K, elect not to provide stabilizing treatment because other hospitals will not accept a transfer.

As previously stated, § 1395dd(b) requires a hospital to provide stabilizing treatment to any individual who comes to a participating hospital, is diagnosed as presenting an emergency medical condition, and cannot be transferred in accordance with the provisions of subsection (c). The use of the word "transfer" to describe the duty of a hospital to provide stabilizing treatment evinces a Congressional intent to require stabilization prior [598] to discharge or that treatment necessary to prevent material deterioration of the patient's condition during transfer. It was not intended to allow hospitals and physicians to avoid liability under EMTALA by accepting and screening a patient and then refusing to treat the patient because the patient cannot or will not be transferred. See, e.g., Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1134 (6th Cir.1990) ("Once a patient is found to suffer from an emergency medical condition, the hospital must give the patient treatment to stabilize that condition unless the patient can be transferred without danger of the patient's condition deteriorating."); Burditt v. U.S. Dept. of Health & Human Services, 934 F.2d 1362, 1368 (5th Cir.1991) ("Patients diagnosed with an `emergency medical condition' . . . must either be treated or be transferred...."). The argument of the Hospital to the contrary is without merit.

IV.

It is beyond the limits of our judicial function to address the moral or ethical propriety of providing emergency stabilizing medical treatment to anencephalic infants. We are bound to interpret federal statutes in accordance with their plain language and any expressed congressional intent. Congress rejected a case-by-case approach to determining what emergency medical treatment hospitals and physicians must provide and to whom they must provide it; instead, it required hospitals and physicians to provide stabilizing care to any individual presenting an emergency medical condition. EMTALA does not carve out an exception for anencephalic infants in respiratory distress any more than it carves out an exception for comatose patients, those with lung cancer, or those with muscular dystrophy—all of whom may repeatedly seek emergency stabilizing treatment for respiratory distress and also possess an underlying medical condition that severely affects their quality of life and ultimately may result in their death. Because EMTALA does not provide for such an exception, the judgment of the district court is affirmed.

AFFIRMED.

SPROUSE, Senior Circuit Judge, dissenting:

I respectfully dissent.

I have no quarrel with the majority's conclusion that the duty imposed on hospitals by EMTALA to provide stabilizing treatment for an emergency condition is different from its duty to provide "appropriate medical screening." There is no question that once a medical condition is characterized as an "emergency medical condition" contemplated by EMTALA, the patient must be stabilized to prevent material deterioration of the condition. 42 U.S.C.A. §§ 1395dd(b)(1)(A), (e)(3)(A) (Supp.1991).

I simply do not believe, however, that Congress, in enacting EMTALA, meant for the judiciary to superintend the sensitive decision-making process between family and physicians at the bedside of a helpless and terminally ill patient under the circumstances of this case. Tragic end-of-life hospital dramas such as this one do not represent phenomena susceptible of uniform legal control. In my view, Congress, even in its weakest moments, would not have attempted to impose federal control in this sensitive, private area. Rather, the statute was designed narrowly to correct a specific abuse: hospital "dumping" of indigent or uninsured emergency patients. Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d 708, 710 (4th Cir.1993); Baber v. Hospital Corp. of America, 977 F.2d 872, 880 (4th Cir.1992). There is no indication in the legislative history of EMTALA that Congress meant to extend the statute's reach to hospital-patient relationships that do not involve "dumping." Clearly, there is no suggestion of patient "dumping" in this case. To the contrary, Baby K's introduction to the hospital was not for emergency treatment — she was born there. She was twice readmitted and after her subsidiary medical condition was stabilized, transferred back to a nursing home. In light of the purposes of the statute and this child's unique circumstances, I would find this case to be outside the scope of EMTALA's anti-dumping provisions.

I also submit that EMTALA's language concerning the type and extent of emergency treatment to be extended to all patients was [599] not intended to cover the continued emergencies that typically attend patients like Baby K. The law was crafted to effect the purpose of preventing disparate treatment between emergency patients. See H.R.Rep. No. 241, 99th Cong., 2d Sess., pt. 1 at 27 (1986), reprinted in 1986 U.S.C.A.A.N. 42, 579, 605. In my view, Baby K is not that kind of emergency patient contemplated by the statute, although by the very nature of her terminal illness, she will suffer repeated medical emergencies during her day-to-day maintenance care. The hospital argues that anencephaly, not the subsidiary respiratory failure, is the condition that should be reviewed in order to judge the applicability vel non of EMTALA. I agree. I would consider anencephaly as the relevant condition and the respiratory difficulty as one of many subsidiary conditions found in a patient with the disease. EMTALA was not designed to reach such circumstances.

The tragic phenomenon Baby K represents exemplifies the need to take a case-by-case approach to determine if an emergency episode is governed by EMTALA. Baby K's condition presents her parents and doctors with decision-making choices that are different even from the difficult choices presented by other terminal diseases. Specifically, as an anencephalic infant, Baby K is permanently unconscious. She cannot hear, cannot see, and has no cognitive abilities. She has no awareness of and cannot interact with her environment in any way. Since there is no medical treatment that can improve her condition, she will be in this state for as long as she lives. Given this unique medical condition, whatever treatment appropriate for her unspeakably tragic illness should be regarded as a continuum, not as a series of discrete emergency medical conditions to be considered in isolation. Humanitarian concerns dictate appropriate care. However, if resort must be had to our courts to test the appropriateness of the care, the legal vehicle should be state malpractice law.

In my view, considering the discrete factual circumstances of Baby K's condition and previous treatment, if she is transferred again from the nursing home to the hospital in respiratory distress, that condition should be considered integral to the anencephalic condition, and I would hold that there has been no violation of EMTALA. I emphasize that this view contemplates a case-by-case determination. Individual cases involving victims of trauma, cancer, heart attack, or other catastrophic illness, who are denied potentially life-saving treatments, may well require different analyses.

[1] Due to the parties' request for anonymity, all identifying information has been omitted from this opinion and anonyms are used to refer to the parties.

[2] The Hospital also sought declaratory relief under § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C.A. § 794 (West Supp. 1993); the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.A. §§ 12101 et seq. (West 1993); the Child Abuse Prevention and Treatment Act (Child Abuse Act), 42 U.S.C.A. §§ 5101-5106h (West Supp.1993); and the statutes and common law of Virginia. In addressing these provisions, the district court concluded that a failure to provide respiratory support to Baby K because of her condition of anencephaly would constitute discrimination in violation of the ADA and the Rehabilitation Act but declined to rule on the application of the Child Abuse Act or Virginia law. Because we conclude that the Hospital has a duty to render stabilizing treatment under EMTALA, we need not address its obligations under the remaining federal statutes or the laws of Virginia.

[3] The full text of subsection (a) provides:

In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.

42 U.S.C.A. § 1395dd(a).

[4] A pregnant woman who is having contractions also qualifies as being in an "emergency medical condition" if:

(i) ... there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) ... transfer may pose a threat to the health or safety of the woman or unborn child.

42 U.S.C.A. § 1395dd(e)(1)(B). This portion of the statute is not applicable to the appeal before us.

[5] In order for a hospital to transfer a patient prior to stabilization, EMTALA requires: (1) the patient or a person acting on the patient's behalf to request a transfer in writing after being informed of the risks involved and the obligations of the hospital under EMTALA; or (2) a proper certification that the medical benefits expected from the transfer outweigh the risks involved. 42 U.S.C.A. § 1395dd(c)(1). In addition, the transfer must meet the criteria for an appropriate transfer which include the requirement that a qualified receiving facility agree to accept the patient and to provide appropriate medical treatment. 42 U.S.C.A. § 1395dd(c)(1)(B), (c)(2). Since Ms. H objects to the transfer of Baby K, since the Hospital has not obtained a certification that the benefits of a transfer would outweigh the medical risks involved, and since no qualified medical facility has agreed to accept Baby K, the requirements for transfer prior to stabilization have not been met. If Ms. H requests a transfer or the Hospital obtains a certification that the benefits of a transfer would outweigh the risks involved, and all of the requirements for an appropriate transfer are met, then the Hospital could, of course, transfer Baby K to another qualified medical facility prior to stabilization.

[6] It is not clear from the record whether the movement of Baby K from the nursing home to the Hospital constitutes a discharge from the nursing home and presentation at the emergency department of the Hospital or a transfer to the Hospital. Subsection (g) of EMTALA provides that participating hospitals that have "specialized capabilities or facilities (such as ... neonatal intensive care units ...) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual." 42 U.S.C.A. § 1395dd(g) (emphasis added). When she experiences respiratory distress, Baby K requires specialized facilities and capabilities that the nursing home does not possess. The Hospital admittedly does possess these facilities and capabilities, including mechanical ventilators and a pediatric intensive care unit. Thus, irrespective of whether the movement of Baby K between the two facilities constitutes a discharge and presentment or a transfer, acceptance and treatment by the Hospital is required.

[7] The provisions of EMTALA would not, of course, be limited to the condition of respiratory distress or the provision of respiratory support. Any diagnosed "emergency medical condition" experienced by Baby K would require stabilizing treatment unless an appropriate transfer could be effected.

[8] Because the issues presented raise questions of statutory interpretation, we conduct a de novo review. Baber, 977 F.2d at 876.

[9] Bradypnea is an "abnormal slowness of breathing." Dorland's Illustrated Medical Dictionary 230 (27th ed. 1988). In an infant who has established and sustained spontaneous breathing, apnea describes the cessation of respiration for more than 60 seconds. Id. at 112.

[10] By its terms the application of § 54.1-2990 is limited to the HCDA, Va.Code Ann. §§ 54.1-2981 to 54.1-2993 (Michie Supp.1993). The HCDA governs advance medical directives by adults and surrogate medical treatment decisions on behalf of adults. No part of the HCDA sets forth provisions for dealing with medical treatment decisions on behalf of infants. Therefore, the Virginia legislature presumably did not intend § 54.1-2990 to apply to medical treatment decisions on behalf of infants.

[1073] Jeffrey D. Guerriero, for Appellants.

Bruce M. Mintz, Monroe, for Appellee St. Francis Med Center.

Jesse D. McDonald, Monroe, for Appellee Dr. Herschel Harter.

Before BROWN, WILLIAMS and GASKINS, JJ.

BROWN, Judge.

The facts of this end of life drama are not materially disputed. Believing it medically and ethically inappropriate, a physician and hospital withdrew life-sustaining care to a 31-year-old, quadriplegic, end-stage renal failure, comatose patient over the strongly expressed objections of the patient's family. As filed, this action was premised as an intentional battery-based tort. The trial court, however, found that defendants "acted in accordance with professional opinions and professional judgment" and thus this action was covered by the medical malpractice act which required that it first be presented to a medical review panel. Accordingly, the trial court dismissed the action as premature.

Facts

Having suffered cardiorespiratory arrest, Sonya Causey was transferred to St. Francis Medical Center (SFMC) from a nursing home. She was comatose, quadriplegic and in end-stage renal failure. Her treating physician, Dr. Herschel R. Harter, believed that continuing dialysis would have no benefit. Although Dr. Harter agreed that with dialysis and a ventilator Mrs. Causey could live for another two years, he believed that she would have only a slight (1% to 5%) chance of regaining consciousness. Because Mrs. Causey's family demanded aggressive life-sustaining care, Dr. Harter sought unsuccessfully to transfer her to another medical facility willing to provide this care.^[1] [1074] Dr. Harter enlisted support from SFMC's Morals and Ethics Board. The Board agreed with Dr. Harter's opinion to discontinue dialysis, life-support procedures, and to enter a "no-code" status (do not resuscitate). Mrs. Causey was taken off a feeding tube and other similar devices. The day the ventilator was removed, Mrs. Causey died of respiratory and cardiac failure.

Plaintiffs, the husband, father and mother of Sonya Causey, brought this petition for damages against SFMC and Dr. Harter. Defendants filed an exception of prematurity asserting that this action was covered under Louisiana's Medical Malpractice Act, La. R.S. 40:1299.41 et seq., which requires that malpractice claims be first submitted to a medical review panel before any action can be filed. La. R.S. 40:1299.47. Plaintiffs claim that to discontinue dialysis, remove life-support systems and enter a "no code" order was treatment without consent and an intentional tort not covered by the malpractice act. Finding that defendants made a medical decision, the trial court sustained the exception and dismissed the lawsuit as premature. Plaintiffs have appealed.

Discussion

Patient participation in medical decision-making is now well-established. Recognizing individual autonomy and the right to self-determination, our state legislature enacted a statute granting a competent, terminally ill person the right to refuse medical treatment. La. R.S. 40:1299.58.1, et seq.

In the Karen Quinlan case the court rejected a physician's adamant stand that he had a moral duty to treat to the last gasp. In that case, the father, not the physician, was given the power to decide whether his comatose daughter's life-prolonging care was beneficial. In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). The legal basis for individual autonomy is the requirement of informed consent. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Implicitly, the decision to refuse care is based on the patient's personal values. If a patient is incompetent, then the responsibility or authority to make decisions falls to the next of kin. La. R.S. 40:1299.58.5. The court as the protector of incompetents, however, can override an intolerable choice by a surrogate decision-maker. In re P.V.W., 424 So.2d 1015 (La.1982).

Now the roles are reversed. Patients or, if incompetent, their surrogate decision-makers, are demanding life-sustaining treatment regardless of its perceived futility, while physicians are objecting to being compelled to prolong life with procedures they consider futile. The right or autonomy of the patient to refuse treatment is simply a severing of the relationship with the physician. In this case, however, the patient (through her surrogate) is not severing a relationship, but demanding treatment the physician believes is "inappropriate."

The problem is not with care that the physician believes is harmful or literally has no effect. For example, radiation treatment for Mrs. Causey's condition would not have been appropriate. This is arguably based on medical science. Rather, the problem is with care that has an effect on the dying process, but which the physician believes has no benefit. Such life-prolonging care is grounded in beliefs and values about which people disagree. Strictly speaking, if a physician can keep the patient alive, such care is not medically or physiologically "futile;" however, it may be "futile" on philosophical, religious or practical grounds.

Placement of statistical cut-off points for futile treatment involves subjective value judgments. The difference in opinion as to whether a 2% or 9% probability of success is the critical point for determining futility can be explained in terms of personal values, not in terms of medical science. When the medical professional and the patient, through a surrogate, disagree on the worth of pursuing [1075] life, this is a conflict over values, i.e., whether extra days obtained through medical intervention are worth the burden and costs.

SFMC had in place a Futile Care Policy which allowed for the discontinuance of medical care over and above that necessary for comfort and support if the probability of improving the patient's condition was slight and would serve only to prolong life in that condition. The inclusion of non-medical persons on the Morals and Ethics Board signals that this is not strictly a physiological or medical futility policy, but a policy asserting values and beliefs on the worth of sustaining life, even in a vegetative condition.

Futility is a subjective and nebulous concept which, except in the strictest physiological sense, incorporates value judgments. Obviously, in this case, subjective personal values of the benefit of prolonging life with only a slight possibility of improvement dictated SFMC's and Dr. Harter's decision.

To focus on a definition of "futility" is confusing and generates polemical discussions. We turn instead to an approach emphasizing the standard of medical care.^[2]

Physicians are professionals and occupy a special place in our community. They are licensed by society to perform this special role. No one else is permitted to use life-prolonging technology, which is considered by many as "fundamental" health care. The physician has an obligation to present all medically acceptable treatment options for the patient or her surrogate to consider and either choose or reject; however, this does not compel a physician to provide interventions that in his view would be harmful, without effect or "medically inappropriate." Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447. In recognizing a terminal patient's right to refuse care, La. R.S. 40:1299.58.1(A)(4) states that the statute is not to be construed "to require the application of medically inappropriate treatment or life-sustaining procedures to any patient or to interfere with medical judgment with respect to the application of medical treatment or life-sustaining procedures." (Emphasis added). Unfortunately, "medically inappropriate" and "medical judgment" are not defined.

A physician's obligation to obtain informed consent is both an ethical requirement and a legal standard of care derived from principles of individual integrity and self-determination. Cruzan, supra. Informed consent implicates the disclosure and explanation of all material information of the nature, purpose, expected benefit and foreseeable risks of any treatment. La. 40:1299.40. In the present case, Dr. Harter fully explained to Mrs. Causey's family the situation. The family rejected the proposed [1076] withdrawal of treatment. Despite the lack of any consent, defendants proceeded to withdraw what they considered to be "medically inappropriate" treatment.

In Lugenbuhl, supra, the court rejected intentional battery-based liability "in lack of informed consent cases (which include no consent cases) in favor of liability based on breach of the doctor's duty (negligence) to provide the patient with material information concerning the medical procedure." (Emphasis added). The court rejected its prior decision in Roberson v. Provident House, 576 So.2d 992 (La.1991), which held that performing a medical procedure without obtaining any kind of consent, as opposed to inadequate disclosure, was a battery. In a footnote, the Lugenbuhl court stated that "one can hardly argue that it is not below the appropriate standard of care for a doctor or nurse to perform a medical procedure without obtaining any kind of consent." Lugenbuhl, supra, fn. 5, p. 452.

Standards of medical malpractice require a physician to act with the degree of skill and care ordinarily possessed by those in that same medical speciality acting under the same or similar circumstances. Departure from this prevailing standard of care, coupled with harm, may result in professional malpractice liability. La. R.S. 40:1299.41. A finding that treatment is "medically inappropriate" by a consensus of physicians practicing in that speciality translates into a standard of care. Thus, in this case, whether Dr. Harter and SFMC met the standard of care concerning the withdrawal of dialysis, life-support procedures and the entering of a "no code" status must be determined. If the withdrawal of or the refusal to provide care is considered a "medical procedure," then it may be that the circumstances of this case present an exception to the supreme court's statement in Lugenbuhl that "one can hardly argue that it is not below the appropriate standard of care for a doctor or nurse to perform a medical procedure without obtaining any kind of consent."^[3] In any event, the Medical Malpractice Act is applicable and the matter should first be submitted to a medical review panel.

We further find no merit to plaintiffs' claim that the Morals and Ethics Board is not a "health care provider" as defined by the La. Medical Malpractice Act. Plaintiffs have sued SFMC and do not dispute that SFMC is a qualified health care provider. The Board is part of SFMC and the fact that there are non-medical persons on it is of no greater consequence than that there are other non-medical employees of the hospital.

Conclusion

For the reasons expressed above, the judgment of the trial court dismissing plaintiffs' action as premature is AFFIRMED. Costs are assessed to plaintiffs-appellants.

WILLIAMS, J., concurs.

WILLIAMS, Judge, concurring.

I agree with the majority's conclusion that the Medical Malpractice Act is applicable in this case. The lawsuit is premature.

[1] In the fall of 1995, Sonya Causey, a former employee of SFMC, suffered complications during childbirth which left her essentially "quadriplegic." She was transferred to the Oak Wood Nursing Home in Mer Rouge, Louisiana. Thereafter, she received dialysis three times a week at SFMC. A permanent tracheal tube was put in place to assist her in breathing. At the time of this incident, she had end-stage renal disease, diabetes mellitus, hypertension and quadriplegia.

On October 17, 1996, while at the nursing home, Mrs. Causey developed respiratory distress and was taken by ambulance to Morehouse General Hospital. She experienced cardiorespiratory arrest and was transferred to SFMC in a comatose condition. She remained at SFMC until her death on November 22, 1996. At that time she was diagnosed with stage IV coma, secondary to at least three or four cardiopulmonary arrests.

[2] This matter is further complicated by federal legislation, such as the Americans with Disability Act (ADA) and Emergency Medical Treatment and Active Labor Act (EMTALA), that preempts state law and does not recognize a health care provider's right to withdraw life-sustaining care deemed medically inappropriate. Mrs. Causey was both disabled and an emergency patient.

In re Baby K., 16 F.3d 590 (4th Cir.1994), cert. denied, 513 U.S. 825, 115 S.Ct. 91, 130 L.Ed.2d 42 (1994), presents facts similar to this case. The court in In re Baby K found that to the extent that state law exempted physicians from providing care they considered medically inappropriate, it conflicted with EMTALA provisions requiring continuous stabilizing treatment for emergency patients and was thus preempted by EMTALA. See, however, distinguishing opinion of Bryan v. Rectors and Visitors of University of Virginia, 95 F.3d 349 (4th Cir.1996).

In Bryan, supra, the Fourth Circuit backed off the sweeping statement made in the Baby K case that EMTALA imposed upon the hospital an obligation not only to admit a patient for treatment of an emergency condition, which was done, but thereafter to continuously stabilize her condition, no matter how long required. Instead, the court in Bryan stated that EMTALA was a limited "anti-dumping" statute, not a federal malpractice law. "Its core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy because traditional medical malpractice law affords no claim for failure to treat." Id. at 351. The court recognized that EMTALA imposed a duty on hospitals to provide emergency care and created a new cause of action "generally unavailable under state tort law, for what amounts to a failure to treat." Id. However, EMTALA was found to regulate the hospital's care of the patient only in the immediate aftermath of the act of admitting her for emergency treatment and while it considered whether it would undertake longer-term full treatment. Supra at 352. In this respect, In re Baby K was not followed. Agreeing with Bryan, we find that EMTALA provisions are not applicable to the present case.

[3] Also, if, as in this case, a surrogate decision-maker insists on life-prolonging treatment which the physician believes is inhumane, then the usual procedure, as evidenced in the reported cases, is to transfer the patient or go to court to replace the surrogate or override his decision. The argument would be that the guardian or surrogate is guilty of abuse by insisting on care which is inhumane.

[824] Gary L. Riveles argued the cause for appellant (Dughi & Hewit, attorneys; Michael J. Keating, Cranford, of counsel; Mr. Riveles, on the brief).

Todd Drayton, East Brunswick, argued the cause for respondent (Martin, Kane & Kuper, LLC, attorneys; Mr. Drayton, on the brief).

John Zen Jackson argued the cause for amici curiae, NJ Hospital Association, Catholic HealthCare Partnership of New Jersey and Medical Society of New Jersey (Kalison, McBride, Jackson & Hetzel, P.C., attorneys; Mr. Jackson, of counsel; Mr. Jackson and James A. Robertson, Warren, on the brief).

Anne L.H. Studholme argued the cause for amici curiae, Not Dead Yet, Adapt, Center For Self-Determination, National Council On Independent Living, National Spinal Cord Injury Association, American Association of People With Disabilities and Disability Rights of New Jersey (A.L. Holloway Studholme, LLC, and Stephen F. Gold of the California Bar, admitted pro hac vice, attorneys; Ms. Studholme, of counsel; Ms. Studholme and Mr. Gold, on the brief).

Larry S. Loigman, Middletown, argued the cause for amicus curiae Rabbinical Council of America, Agudath Israel of America, and National Council of Young Israel (Larry S. Loigman, attorney; Benjamin G. Kelsen, Teaneck, of counsel; Mr. Loigman, on the brief).

Thaddeus M. Pope of the California Bar, admitted pro hac vice, argued the cause for amicus curiae Thaddeus M. Pope (Martin, Kane & Kuper, LLC, and Mr. Pope, attorneys; Todd Drayton, East Brunswick, and Mr. Pope, of counsel and on the brief).

Rebecca M. Urbach, attorney for amicus curiae Greater New York Hospital Association.

Kern, Augustine, Conroy & Schoppmann, P.C., attorneys for amicus [825] curiae NJ Physicians, Inc. (Steven I. Kern, of counsel; Mr. Kern and Svetlana Ros, Bridgewater, on the brief).

Before Judges CARCHMAN, PARRILLO and ASHRAFI.

PER CURIAM.

Rueben Betancourt^[1] underwent surgery at defendant Trinitas Hospital (defendant, the hospital or Trinitas) to remove a malignant tumor from his thymus gland. The surgery went well, but while Rueben was recovering in the post-operative intensive care unit, the ventilation tube that was supplying him with oxygen became dislodged. As a result, his brain was deprived of oxygen, and he developed anoxic encephalopathy, a condition that left him in a persistent vegetative state. Ultimately, among other treatment, he required dialysis three times per week, was maintained on a ventilator, developed decubitis ulcers that had developed into osteomyelitis and was fed with a feeding tube. After various unsuccessful attempts to resolve the issue of continued treatment with Rueben's family, defendant and various doctors, claiming that continued treatment would be futile and violated the standard of care, placed a Do Not Resuscitate (DNR) order in Rueben's chart. In addition, defendant declined to provide further dialysis treatment.

Plaintiff Jacqueline Betancourt, Rueben's daughter, filed an action to enjoin defendant from implementing such order. After appointing plaintiff as Rueben's guardian and following a hearing, Judge Malone, in the Chancery Division, restrained defendant from withholding treatment. This appeal followed, but within three months of the judge's order requiring reinstatement of treatment, Rueben died. Plaintiff moved to dismiss the appeal as moot, and we reserved decision on the motion pending review of the full record and arguments of the parties. Although we recognize the significance of the issues raised by the parties and amici on appeal, we conclude that both the lack of an adequate factual record as well as the limited, but unique, factual context presented, warrant dismissal of the appeal as moot.

I.

We provide an expanded statement of the relevant facts adduced from the limited record before us. On January 22, 2008, Rueben underwent surgery at defendant to remove a malignant tumor from his thymus gland. As we previously stated, the surgery went well, but while Rueben was recovering in the post-operative intensive care unit, the ventilation tube that was supplying him with oxygen somehow became dislodged.^[2] As a result, his brain was deprived of oxygen, and he developed anoxic encephalopathy, a condition that left him in a persistent vegetative state.

Rueben was subsequently discharged from defendant and admitted to other facilities that attempted rehabilitative treatments. He was readmitted to defendant on July 3, 2008, however, with a diagnosis of renal failure. Further attempts at placement in another facility proved fruitless, and he remained at defendant until his death on May 29, 2009.

At the time of his death, Rueben had not executed an advanced directive under the New Jersey Advanced Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78,(the Advanced Directive Act or Act). [826] He had neither designated a health care representative nor memorialized "specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment." N.J.S.A. 26:2H-58 b.

Witnesses for both parties to the dispute presented disparate views of Rueben's condition, the impact of treatment and prognosis. At the hearing, Rueben's attending physician, Dr. Arthur E. Millman, indicated that Rueben was a seventy-three-year-old man who was suffering from multi-system organ failure; his kidneys had failed, his lungs had failed, he was intermittently septic, he had hypertensive heart disease and congestive heart disease, and his skin was breaking down. He had "truly horrific decubitus ulcers" that had progressed to the bone, developing into osteomyelitis. Rueben was on a ventilator and received renal dialysis three times per week; he was fed through a tube into his stomach, given antibiotics and was turned frequently in his bed.

Millman stated that Rueben's most overwhelming problem was his permanent anoxic encephalopathy. He described Rueben's neurological state as "non-cognitive" with no higher mental functioning. He did believe, however, that Rueben was responsive to pain because he had personally witnessed Rueben's reactions to it. There had been no change in Rueben's neurological condition since he was admitted in July 2008, and Millman believed that the likelihood of his return to cognizant function was "virtually zero."

Dr. Bernard Schanzer, Chief of Neurology at defendant, corroborated most of Millman's views concerning Rueben's neurological condition. He explained that the cortical part of Rueben's brain had been irreversibly damaged. As a result, Rueben was in a permanent vegetative state, unable to speak or respond to verbal cues, and although Rueben's eyes were open and he appeared awake, he was not alert or aware of his environment. Schanzer disagreed with Millman, however, concerning Rueben's ability to experience pain. He believed that Rueben did not feel pain, and Rueben's responses to stimuli were due to basic reflexes of the brain stem and spinal cord. He opined that there was no chance that Rueben would ever regain a cognitive state.

Dr. Maria Silva Khazaei, a nephrologist, concluded that Rueben was suffering from end-stage renal disease, and there was no likelihood of improvement. She opined that it was contrary to accepted standards of medical care to continue dialysis treatments because they only prolonged Rueben's dying process.

Not surprisingly, plaintiff's consulting nephrologist had a different opinion. Dr. Carl Goldstein, a nephrologist retained by plaintiff, stated that Rueben's current plan of dialysis "comports in every way with the prevailing standards of care." He explained that the dialysis had been effective in removing excess fluid and waste products from Rueben's body. Rueben was tolerating the treatment well, and it was not harmful or dangerous to him.

Dr. William J. McHugh, Medical Director at defendant, was a member of the hospital's prognosis committee. The committee had been consulted concerning the efficacy of continuing Rueben's treatment; as a result, McHugh reviewed many, but not all, of the relevant medical records. He concluded that Rueben had "no outlook" because no affirmative treatment would improve his condition. As opposed to Millman, who believed that Rueben would probably die within a matter of months regardless of continued treatment, McHugh stated that Rueben's death "may take some time." In fact, he opined that if treatment were continued at the present [827] level, Rueben "could go on for quite a while." On cross-examination, McHugh admitted that Rueben's present medical treatment was harmful only in the sense that the doctors were continuing to treat a hopeless situation.

Other members of the hospital's prognosis committee weighed in as well. Dr. Paul Veiana, president of the defendant's medical staff, examined Rueben the day before the hearing while Rueben was "wheeling" down to dialysis. Based on his review, he concluded that the doctors were not treating Rueben—they were just treating a body. He stated that the everyday drawing of blood and injections violated Rueben's body, and as a Christian, he believed that a body should not be so desecrated.

On several occasions, the hospital administration sought agreement from Rueben's family to place a DNR order and cease dialysis treatment, but they staunchly refused. It also made "exhaustive efforts" to transfer Rueben to another facility, but no other facility was willing to accept him. Ultimately, defendant acted unilaterally, placing the DNR order in Rueben's chart as well as surgically removing a dialysis port from Rueben's body.

At the hearing, plaintiff provided information about Rueben. Before his illness, Rueben lived with his wife and his two adult sons. Plaintiff resided next door and saw her father every day. The family had always been very close, and Rueben was "dedicated" to his wife and children.

Plaintiff described Rueben's history of medical treatment at the hospital, asserting that it was the hospital's fault that he suffered a brain injury. She visited her father in the hospital almost daily and saw him make movements and gestures that led her to believe that he was awake and alert. She did not, however, believe that he was suffering. The family determined that they did not want a DNR order placed in Rueben's chart and did not want the dialysis treatment to be stopped. Rather, they wanted to make the decision as to whether Rueben was "ready to go." Plaintiff explained: "[M]y father is a fighter. He will not give up."

Robin, Rueben's thirty-six-year-old son, offered that his father was his "only . . . real friend" and that he loved him very much. He recalled, anecdotally, that he and his father had discussed the Terri Schiavo^[3] case when it was in the news, and his father had said that it was the right of Schiavo's parents—not her doctors—to decide what to do. Robin stated that his father reacted to him during hospital visits, and that those reactions were not simply reflexes. He described how his father had different facial expressions depending on what was happening around him and how his father's pulse would slow down when family members spoke to him or played music. He said the family did not trust the doctors to make the decision as to when to terminate his father's life.

Maria, Rueben's wife of thirty-seven years, was convinced that her husband reacted positively when she spoke to him or touched him. She believed that he would want "to continue living until God wished."

Nonetheless, the trial judge acknowledged that the temporary restraining order procedure should rarely be used to direct affirmative relief, but he found that the matter presented an "extreme situation" in which he needed to move quickly [828] in order to maintain the status quo. The judge ordered defendant to re-establish the level of treatment that had been provided to Rueben prior to the discontinuation of dialysis and also to remove a DNR order that had been placed in his chart. He then ordered a hearing, which was held approximately two weeks later.

Following the hearing, Judge Malone issued a written opinion in which he concluded that decisions concerning the proper course of treatment for Rueben could not be made by the hospital; rather, such decisions should be made by a surrogate who could take Rueben's personal value systems into account when determining what medical treatment was appropriate. He granted plaintiff's application, appointed plaintiff as her father's guardian and permanently restrained the hospital from discontinuing treatment to Rueben. This was memorialized in a March 20, 2009 order. This appeal followed.

On May 29, 2009, Rueben died. Plaintiff filed a motion to dismiss the appeal as moot, and we reserved decision on the motion pending consideration of the merits of the appeal. We now grant the motion and dismiss the appeal.

II.

Plaintiff argues that Rueben's death has rendered the appeal moot because a decision by a court would have no practical effect on the parties' prior dispute. Further, she asserts that the public interest in this controversy is not sufficient to warrant consideration of the merits. Distinguishing this case from "right to die" cases, in which surrogates sought to withdraw patients' life-sustaining medical care, she contends that situations where courts have been called upon to determine whether a patient has a "right to live" are neither common nor pervasive. Moreover, she maintains that it would be difficult for the court to fashion uniform guidelines to be applied in all future cases based on the narrow and disputed facts of this case.

Plaintiff's motion for a dismissal is supported by various amici—Not Dead Yet, ADAPT, Center for Self-Determination, National Council on Independent Living, National Spinal Cord Injury Association, American Association of People with Disabilities, and Disability Rights New Jersey (Not Dead Yet Amici)—who argue that it is significant that the Betancourt family does not want to proceed and that the hospital's motivation in pursuing this appeal is entirely self-serving.^[4] They also contend that defendant has offered no proof that the situation presented here is common or that doctors and surrogates are frequently at odds. Of greatest concern to amici is that Rueben's death "casts an aura of hindsight wisdom over the doctors' declarations that he was `dying[]'" and makes this a poor case in which to adjudicate the rights of mentally incapacitated individuals.

Defendant observes that New Jersey courts have decided appeals notwithstanding mootness as to the original parties where the issues are of public importance or when a controversy is capable of repetition but evades review. It claims that this appeal implicates the significant public question of "the right of health care providers to comply with the standards of care governing their profession," and that the controversy is capable of repetition while evading review because the patients involved in such situations would probably die during the course of litigation. While [829] asserting that this is a case of first impression in New Jersey, defendant claims that the circumstances are likely to reoccur in light of "the expected rationing of health care to be anticipated with the health care reform currently ongoing." Finally, it maintains that this appeal raises matters of the same significant public importance as those recognized in the "right to die" cases.^[5]

A.

We first set forth the principles that inform a consideration of claims of mootness. Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm. Jackson v. Dep't of Corr., 335 N.J.Super. 227, 231, 762 A.2d 255 (App. Div.2000), certif. denied, 167 N.J. 630, 772 A.2d 932 (2001). "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." DeVesa v. Dorsey, 134 N.J. 420, 428, 634 A.2d 493 (1993) (Pollock, J., concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303, 344 A.2d 769 (1975)). To restate, "`an issue is "moot" when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" Greenfield v. N.J. Dep't of Corr., 382 N.J.Super. 254, 257-58, 888 A.2d 507 (App.Div.2006) (quoting N.Y. S. & W. R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J.Tax 575, 582 (Tax Ct.1984), aff'd, 204 N.J.Super. 630, 499 A.2d 1037 (App.Div.1985)).

Courts normally will not decide issues when a controversy no longer exists, and the disputed issues have become moot. DeVesa, supra, 134 N.J. at 428, 634 A.2d 493; N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949); Edelstein v. City of Asbury Park, 12 N.J.Super. 509, 514-15, 79 A.2d 860 (App.Div.1951). On occasion, however, courts have decided an otherwise moot appeal "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330, 676 A.2d 1065 (1996). Accord Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165, 712 A.2d 188 (1998) (involving an application for Medicaid benefits); In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209 (1985) (addressing the withholding or withdrawing life-sustaining treatment); State v. Perricone, 37 N.J. 463, 469, 181 A.2d 751, (considering blood transfusion for infant son of Jehovah's Witnesses), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J.Super. 160, 166, 797 A.2d 216 (App.Div.) (considering a school board contract and subcontract), certif. denied, 174 N.J. 364, 807 A.2d 195 (2002).

Here, the dispute between plaintiff and defendant was admittedly rendered moot by Rueben's death. The question remains, however, whether we should consider the appeal on its merits because of the matter's substantial public importance and capacity to reoccur yet evade review.

B.

Defendant raises two issues on appeal: 1) the correctness of the court's order requiring the reinstatement and continuation of Rueben's medical treatment, and 2) the propriety of the court's appointing plaintiff to be Rueben's guardian. As we noted at the outset of our analysis, mootness [830] is a threshold determination of justiciability. While the justiciability of the first issue is debatable, as to the second, it is not.

Addressing the second issue, whether the judge erred in appointing plaintiff to serve as Rueben's guardian is neither a question of substantial public importance nor is it likely to reoccur and evade review. The hospital's arguments primarily focus on the judge's alleged errors in not complying with procedures set forth in the Court Rules and not recognizing plaintiff's inherent conflict in representing her father's interests. Both of these arguments involve facts that are unique to this case and of no particular interest to the general public. Moreover, there is no indication that the filing deficiencies and conflicts of interest alleged here will reoccur in other guardianship matters and, if they do, that the courts will be unable to adjudicate them. In fact, defendant makes no argument that its appeal from the guardianship order should not be dismissed as moot. Defendant's moot challenge to the appointment of plaintiff as Betancourt's guardian does not warrant review.

The more difficult question is whether we address the merits of the hospital's challenge to the court's restraining order. We recognize that determining what medical treatment should be provided to incompetent or dying patients presents a matter of substantial public importance and that such matters are capable of evading judicial review; however, we are not of the view that the particular circumstances presented here—including the allegations of medical negligence as well as the substantial unpaid hospital bills—are likely to reoccur. We are further concerned that the record on appeal is inadequate to address the critical issues involved.

A number of decisions of our courts have recognized the public interest in decisions regarding the termination of life-sustaining medical treatments. In Conroy, supra, 98 N.J. at 335-36, 486 A.2d 1209, for example, the guardian of a severely ill, incompetent nursing home patient sought to have the patient's feeding tube removed. Even though the patient died while the appeal was pending, the Court granted the guardian's petition for certification, agreeing that "the matter is of substantial importance and is capable of repetition but evades review." Id. at 342, 486 A.2d 1209. Likewise, in In re Farrell, 108 N.J. 335, 344-46, 529 A.2d 404 (1987), a husband sought to have his terminally ill wife removed from the respirator that was sustaining her life. Mrs. Farrell died before the case was considered an appeal. Id. at 347, 529 A.2d 404. Nevertheless, the Court agreed to render a decision on the merits due to "the extreme importance of the issue and the inevitability of cases like this one arising in the future[.]" Ibid.

Plaintiff attempts to distinguish Conroy and Farrell by arguing that the "right to die" cases involved efforts by patients' families to withdraw life-sustaining medical treatments, whereas the situation at hand involved an effort by a family to continue such treatments. However, the Courts in Conroy and in Farrell did not base their decision on which party was seeking to withdraw life support. Rather, they identified the matter of public importance as being whether life-sustaining treatment should be removed from an incompetent patient. That same issue exists here. Indeed, the public has at least an equal, if not greater, interest in a patient's right to live than in a patient's right to die. Moreover, although plaintiff distinguishes the "right to die" cases for purposes of determining justiciability, she later argues that those same cases are so similar to the [831] matter at hand that they constitute binding precedent. The arguments are contradictory.

Most significant, plaintiff and amici note that all parties in Conroy and Farrell asked the court to decide the case on its merits despite the mootness of the issues presented, whereas plaintiff here asks the court to dismiss the appeal. We note that agreement of all parties has been recognized as a factor in considering issues that were "technically" moot. See Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17, 22, 311 A.2d 737 (1973) (agreeing to consider a "technically" moot argument involving the Commissioner of Education). Yet, we discern no sound policy reason why consent of all parties should be determinative of whether a court should consider an issue that may, in fact, be moot, and we likewise find no basis to conclude that a party's declining to consent to consideration of the issue, or as here, moving to dismiss, should likewise be determinative of the issue. We need not focus our decision on these factors.

Conroy and Farrell support the conclusion that the issue presented here is one of significant public interest. In addition, this matter involves a situation that could evade judicial review. Obviously, when a patient is in such poor medical condition that his or her physicians consider further treatment to be medically futile, there is a heightened possibility or even probability that the patient will not survive prolonged litigation.

A critical factor in the mootness analysis is whether the unusual circumstances of a case make a recurrence of this specific set of facts unlikely. This is the decisive issue here.

This is a case of first impression in New Jersey. However, as we noted at oral argument, given that the medical technology to mechanically sustain human life has existed for well over thirty years, see, e.g. In re Quinlan, 70 N.J. 10, 18, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976), the fact that no similar case has previously arisen suggests that the situation presented here does not occur as frequently as suggested by defendant.

The qualifying circumstance that makes this matter unique and gives us substantial pause is that Rueben's anoxic injury occurred while he was a patient at defendant. The issue of causation of the injury is in significant dispute, and there are assertions that the Betancourt family allegedly intends to file or has filed a medical malpractice action arising from that incident. Defendant's potential liability for Rueben's condition impacted substantially on the relationship between the hospital and the Betancourt family. Indeed, plaintiff expressed the belief that her "father is in the situation that he's in because of a hospital error," and Robin stated that he did not trust the hospital's physicians. This poor relationship between the parties prompted Dr. Millman to act as a mediator; nevertheless, no consensus was ever reached as to Rueben's treatment.^[6] The [832] paucity of similar issues being adjudicated in the courts seems to suggest that the inability of defendant and the family to reach an agreement is the exception rather than the rule.

Further, the anticipated medical malpractice action may have negatively impacted the parties' decision-making. At the order-to-show-cause hearing, plaintiff's counsel suggested that defendant had an economic motivation for discontinuing Rueben's treatment, since Rueben's "sizable" hospital bill remained unpaid, a second unique factor, and each day Rueben suffered potentially increased the defendant's exposure to negative financial impact. In turn, defendant suggests that plaintiff's decision to keep Rueben alive may have been motivated by a desire for monetary gain in the malpractice lawsuit.^[7] This unique assailability of the decisions reached by the prognosis committee and the family is a complicating factor that is unlikely to occur in other situations.

Finally, we have previously alluded to the sparse record on appeal. In sum, the record presented at the hearing was not conclusive in several areas necessary to fully adjudicate the substantial issues raised on appeal. The hospital's neurological expert admitted that he had only examined Rueben twice over a period of six months. As a result, there was considerable doubt as to Rueben's exact neurological condition. While some physicians described him as non-cognitive, unable to perceive pain and in a persistent or permanent vegetative state, others noted his condition as semi-comatose, awake, arousable and responsive to pain and other stimuli. The family insisted that Rueben was aware of his surroundings. They did not present a neurological expert of their own, however, nor did they follow up on the numerous favorable notations in Rueben's chart.

The judge concluded that Rueben was unconscious and in a persistent vegetative state. As it was not necessary to the decision that he reached, the judge made no specific findings, however, concerning Rueben's ability to perceive pain or react to his surroundings. The uncertainty and lack of true consensus as to Rueben's condition may generate a result that will not only apply to a patient in a non-cognitive, vegetative state, but to a patient who is impaired and in possession of some level of awareness.

Likewise, there was disagreement concerning Rueben's ultimate prognosis. Millman believed that Rueben would die within a matter of months, while McHugh opined that Rueben could persist in his present condition for "quite a while." Unlike Conroy and Farrell, the uncertainties as to Rueben's condition and prognosis do not lend themselves to the resolution of the important issue involved here. A decision here may be applicable not only to a patient on the threshold of death but also to a mentally incapacitated, yet stable, patient. Such a decision would neither serve the interests of the parties here nor the public at large. Vague decisions based on unique facts do not lend themselves to the type of resolution required here.

Not only does the limited record inhibit a consideration of the broader issues presented,^[8] [833] it highlights the absence of resolution of basic disputes that preclude full analysis. By way of example, there is a dispute as to whether Rueben was a moribund patient on the threshold of death, which would have significant implications in considering the withholding of treatment from a patient who is actively dying, or whether Rueben was stable and able to persist in his present condition for an extended period of time. This dispute, unresolved below, has significant implications as to the ultimate decision on the withholding of treatment for a dying patient as opposed to one whose quality of life is such that a hospital or doctors may consider the withholding of treatment an appropriate resolution. We do not decide the issue but raise it to emphasize why the "thin" and disputed record is so critical to a full analysis.

Defendant and its supportive amici recognize that any decision on the merits would be "legislation" to resolve the issues that it has raised. As amicus Professor Pope cogently recognized, "whole-cloth legislation from the bench" is especially not warranted here where the record is so sparse and the rule espoused by defendant too "broad." We agree.

While we dismiss the appeal, we do not see our declination to resolve the issue on this record and in this case to be an end to the debate. The issues presented are profound and universal in application. They warrant thoughtful study and debate not in the context of overheated rhetoric in the battlefield of active litigation, such as marked the Schiavo debate, but in thoughtful consideration by the Legislature^[9] as well as Executive agencies and Commissions charged with developing the policies that impact on the lives of all. See e.g., H.B. 1178, 150th Gen. Assemb., Reg. Sess. (Ga. 2010) (providing that a "health care agent should make [a] health care decision while maintaining a presumption that the declarant would choose the preservation of declarant's life[,]" and "[a] health care agent may not choose to refuse or withdraw nourishment or hydration"); H.B. 4013, 2005-2006 Gen. Assemb., 116th Sess. (S.C. 2005) (stating that "[n]o guardian, [834] surrogate, . . . or any other person has the authority to make a decision on behalf of a person legally incapable of making health care decisions to withdraw or withhold hydration or nutrition from such a person" except in specific, enumerated situations). The broad scope of the amici, on both sides, who weighed in on the merits of the issues raised here, attests to the universality of impact of any decision in this area. This case does not provide the appropriate platform for that resolution.

The motion to dismiss the appeal as moot is granted.

[1] For ease of reference, we refer to Rueben Betancourt by his first name.

[2] There is a significant factual dispute as to how this occurred that may be the subject of further litigation between the parties.

[3] See, e.g., In re Guardianship of Theresa Marie Schiavo, 780 So.2d 176 (Fla. Dis.Ct.App.2001).

[4] They allude to the fact that Dr. Millman allegedly informed the Betancourts of an outstanding $1.6 million hospital bill.

[5] The amici supporting Trinitas's appeal do not directly address the issue of mootness, although all clearly ask this court to render a decision on the merits.

[6] For an excellent and thoughtful discussion of the use of independent bioethical mediators to resolve, among other issues, end of life disputes between healthcare providers and patients, see Arthur L. Caplan and Edward J. Bergman, Beyond Schiavo, 18 J. Clin. Ethics 340 (2007). Amicus, Professor Pope, has also noted that the "vast majority" of disputes between surrogates and healthcare providers are resolved "internally and informally through good communication and mediation practices." Thaddeus Mason Pope, Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment, 75 TENN. L. REV. 1, 21 (2007). Pope further comments that the "standard dispute resolution process consists of six roughly chronological stages[,]" the second of which is where a Health Care Team, having failed to convince a surrogate to end life-sustaining medical treatment, "employs an individual consultant or mediator to negotiate an agreement between the physician and patient," id. at 22, a practice suggested by Caplan and Bergman.

[7] We make no finding as to accuracy of either contention and leave the resolution of these issues to the parties.

[8] We have repeatedly noted the absence of a full record. Our comments regarding the paucity of the record do not suggest any criticism of the trial judge or counsel prosecuting or defending the case at the trial level. The issues in the Chancery Division were narrower than the broader issues urged on appeal, and the record below was sufficient to address the issues presented there.

[9] Although this appeal does not implicate the Advanced Directive Act, the Legislature, in the statute, has addressed the issue of the withholding of life sustaining treatment where such treatment is likely to be ineffective or medically futile. "Consistent with the terms of an advance directive and the provisions of this act, life-sustaining treatment may be withheld or withdrawn from a patient . . . [w]hen the life-sustaining treatment . . . is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process." N.J.S.A. 26:2H-67(a)(1) (emphasis added). Moreover, the Legislature has expressed the intent that decisions to maintain life-sustaining treatment must take precedence. For example, Assembly Judiciary, Law and Public Safety Committee, Statement to Senate Bill No. 1211, L. 1991, c. 201, states that "[a]n incapacitated patient's contemporaneous wish that medically appropriate life sustaining treatment be provided would take precedence over any decision made by a health care representative or any contrary statement in an instructive directive." Further, the Act declares:

The right of individuals to forego life-sustaining measures is not absolute and is subject to certain interests of society. The most significant of these societal interests is the preservation of life, understood to embrace both an interest in preserving the life of the particular patient and a related but distinct interest in preserving the sanctity of all human life as an enduring social value. [N.J.S.A. 26:2H-54(d) (emphasis added).]