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Bad Surrogate in a Brain Death Case: Hernandez v. Abel

Posted Jul 10 2010 10:32pm

Hernandez v. Abel, No. 08-2013, is a case now being briefed in the U.S. Court of Appeals for the Fourth Circuit.  It has amazingly bad facts for the plaintiff.  And the legal arguments are not much better.  Therefore, it should be no surprise that the plaintiff's lawyer is facing significant sanctions.

In July 2006, infant, Judith Hernandez (Baby Judith), was admitted to the Medical University of South Carolina, after she suffered multiple skull fractures as the result of being beaten by her father, Plaintiff Ramon Hernandez. In September 2006, MUSC medical staff declared Baby Judith clinically dead and removed her from an artificial ventilator. The next day, on September 6, 2006, Plaintiff-father, was charged with Murder/Homicide.  

A few days later, Plaintiff-father filed a Complaint against MUSC physicians.  Subsequently, Plaintiff-father pled guilty to the charge of Murder/Homicide.  During a September 2007 hearing, Plaintiff-father admitted that he caused the death of Baby Judith. He specifically admitted that he “cause[d] physical injury to [his] child by striking [her] in the head with [his] fist.”  He further acknowledged that the skull fractures that he inflicted caused Baby Judith’s death.

Remarkably, Plaintiff’s Attorney admitted during a district court hearing that the motivation for seeking to prevent MUSC from “removing life support” was to avoid charges of murder/homicide by continuing to artificially ventilate Judith’s body for “a year and a day.”  Essentially, Plaintiff’s Attorney argued that if MUSC had not “pulled the plug,” she might have “lived” long enough for Plaintiff-father to avoid being charged with homicide.

While Plaintiff-father rattles off a number of legal theories, here is my favorite.  He argues that MUSC violated EMTALA by failing to provide stabilizing treatment to Judith Hernandez and by failing to prevent material deterioration of her condition.  The hospital naturally points out that the patient was dead.  In response, Plaintiff-father contends that the EMTALA conflicts with, and therefore preempts, the South Carolina Uniform Determination of Death Act. EMTALA, not state law, describes the appropriate procedures for assessing and treating patients who present to hospitals in an emergency medical condition, and dictates that hospitals must assess and stabilize patients experiencing an emergency medical condition and prevent any material deterioration of that condition.

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