A More Dramatic Case Than Schiavo - Major Story

From Art Caplan:

HOSPITAL, WIFE BATTLE OVER PATIENT'S LIFE A HEARING IN ORANGE WILL CONSIDER THE FATE OF A CLERMONT MAN WHO HAS A LIVING WILL. BY ANTHONY COLAROSSI | SENTINEL STAFF WRITER POSTED NOVEMBER 18, 2004

Hanford Pinette made his wishes clear in a living will: He never wanted to be kept alive by a machine.

Today Pinette, 73, lies in an Orlando hospital, where machines run his lungs and kidneys. Doctors see an unresponsive patient with no hope of recovery. Alice Pinette sees her husband of 53 years clinging to life.

Now the Clermont man's fate will be fought out in a courtroom in an unusual battle waged by Orlando Regional Healthcare System officials, who want to let him die, against Alice Pinette, who wants to keep him alive.

"They're just trying to pull the plugs," Alice Pinette, 73, said Wednesday, standing in the doorway of her home. "He still communicates with me, and I won't let them do it."

A hearing in the case is scheduled for Tuesday before Orange Circuit Court Judge Lawrence Kirkwood. The outcome could have broad implications on the enforcement of living wills, which are supposed to remove uncertainty about a patient's wishes in the event of a terminal illness and incapacity.

Paul Malley, president of the Tallahassee-based Aging With Dignity, a national organization that advises people about the benefits of living wills, said he could not recall a Florida hospital going to court to enforce a written living will over the wishes of a patient's family.

"It's definitely highly unusual for a hospital to bring up a case like this," Malley said. "Where this case is, is a real challenge. There may not be an easy answer here."

The argument doesn't center on Pinette's wishes, but whether he's sick enough to carry them out.

"He's all right," Alice Pinette said. "He's getting better, a little each day." David L. Evans, Orlando Regional Healthcare's lawyer, said the hospital maintains Pinette will not get better and is trying to abide by the patient's wishes.

"All we can do is come in and describe his medical condition and his competency," Evans said last week. "We're just doing what we feel we're legally obligated to do."

The Pinette matter is almost a reversal of the Terri Schiavo case.

Schiavo collapsed 14 years ago and is now in a Clearwater nursing home in what doctors call a progressive vegetative state. She is kept alive by a feeding tube and left no written directive of her wishes.

Schiavo's husband, Michael, contends his wife told him she would not want to be kept alive. Her parents, Bob and Mary Schindler, have battled Schiavo in court, arguing their daughter is aware of her surroundings.

The case sparked a national controversy when Gov. Jeb Bush and the Florida Legislature intervened to block a court order removing Terri Schiavo's feeding tube. The courts ruled in Michael Schiavo's favor and the case remains on appeal in Florida's courts.

The case has been cited as an example of why people need to write living wills.

Pinette, a Korean War veteran and government engineer who moved to Clermont in 1994 from Maryland to retire, wrote a living will in 1998 and assigned his wife to carry out his wishes, designating her as his "surrogate."

In the event of a terminal condition with no probability of recovery, Pinette stated: "I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong the process of dying."

Pinette stated in the will that he wanted "to die naturally" and receive medication only to "alleviate pain."

But Alice Pinette produced a durable power of attorney signed by her husband on the same date in 1998.

The power of attorney states her husband assigned her "to decide for me [Hanford Pinette] any matters regarding my health care, including, but not limited to, consenting to withhold or withdraw life-prolonging procedures."

Earlier this year, Pinette suffered congestive heart failure, his wife said. He has been hospitalized since February, according to the petition filed by Orlando Regional Healthcare, and is currently at Lucerne Hospital.

Despite Alice Pinette's assertions that her husband is not terminally ill, the hospital argues in court documents that Pinette's "renal system, respiratory system and cardiovascular system are all being supported by artificial means alone."

The petition also says Pinette is not competent to make his own decisions and is not likely to recover his mental capacity. The hospital's bioethics committee which reviews cases such as this also agreed to withdraw life support.

And two doctors -- Sanjay Muttreja and Juan Herran -- submitted affidavits that Pinette is terminally ill and has no "medical probability" of recovering.

"It is my opinion as Mr. Pinette's treating physician that Mr. Pinette meets the requirements of his living will," Muttreja said in his affidavit.

But Alice Pinette, who goes to the hospital daily, said her husband "still communicates with me."

She said Pinette squeezes her hand, shakes his head and has indicated that "he wants to go home."

That is proof enough to her that he's not terminally ill.

"There's a lot of people they say that about, and it's not true," she said. "They've been after me since July to put him down."

Robert Wilkins, a Maitland attorney whose practice includes living wills, said Alice Pinette is fighting an uphill battle.

"You should be able to control your own destiny and a surrogate shouldn't be able to override that," Wilkins said. "It really isn't her prerogative, it seems to me, to disregard that."

Wilkins said Alice Pinette's best hope is if her attorney can successfully argue that the living will is invalid.

Alice Pinette's attorney, William E. Ruffier, could not be reached for comment Wednesday.

Malley, the Aging With Dignity president, said the case may help others avoid this situation by talking about living wills and the responsibilities of the surrogate before it's too late.

The best person to be someone's surrogate, for instance, might not be his or her spouse, Malley said.

"It's a difficult situation," Malley said. "But it can be avoided with other families."