IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA

 

                                                                                                CASE NO. 48-2004-MH-1519-O

                                                                                                PROBATE DIVISION 01

 

IN RE: 

 

            HANFORD L. PINETTE

___________________________/

 

 

ORDER GRANTING PETITIONER THE RIGHT AND

AUTHORITY TO COMPLY WITH THE WISHES AND

LIVING WILL OF HANFORD L. PINETTE

 

 

            This cause having come before the undersigned on Carol Paris, an interested adult person, (“Paris”) as Director of Risk Management for and on behalf of Orlando Regional Healthcare Systems, Inc. request for an expedited judicial intervention pursuant to Florida Probate Rule 5.900, Florida Statutes 765.304(1), 765.105, 765.302(3), 709.08(7)(c) and 765.202(4) to resolve any and all disputes regarding the Living Will of HANFORD L. PINETTE (the “patient”).

 

1.         This Court held a Preliminary Hearing on the Petition on November 10, 2004 at 1:30 p.m., Courtroom 19-D, 19th Floor, Orange County Courthouse, 425 North Orange Avenue, Orlando, Florida, on the Petition For Expedited Judicial Intervention pursuant to Florida Probate Rule 5.900, Florida Statutes 765.304(1) and Florida Statutes 765.105 and this court scheduled a full evidentiary hearing which occurred this date.      

2.         “PARIS”, by and through her attorney established to this Court that all conditions precedent in Rule 5.900 have been complied with including notice to all persons under the Rule.

3.         The Court’s scope of Judicial Review is based on the Rule and the following authorities:

Cruzan by Cruzan v. Dir., Missouri Dep’t Health, 497 U.S. 261 (1990); In re Dubreuil, 629 So. 2d 819 (Fla. 1993); John F. Kennedy Mem’l Hosp., Inc. v. Bludworth, 452 So. 2d 921 (Fla. 1984); In re Guardianship of Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003); In re Guardianship of Schiavo, 780 So. 2d 176 (Fla. 2d DCA 2001); In re Guardianship of Browning, 543 So. 2d 258 (Fla. 2d DCA 1989); In re Hughes, 611 A. 2d 1148 (N.J. Super. Ct. App. Div. 1992); University Hosp. of State of Univ. of New York Upstate Med. Univ., 775 N.Y.S. 2d 750 (N.Y. App. Div. 2004); Application of Rochester Gen. Hosp., 601 N.Y.S. 2d 375 (N.Y. App. Div. 1993). 

4.         This is the third time that parties have come before the Court seeking relief.  In cases, 2004-MH-1354 and 2004-MH –1262, the parties made similar arguments. Such previous cases were denied and dismissed on procedural grounds.  The Court demands the strict compliance with the Rule and the Statutes for Petitions requesting this type of relief, considering the grave responsibility, the consequences requested and the burden placed upon the Court.  

5.         This Court has previously denied Paris’s request to seal documents.  A broader request to seal documents was previously denied in case 04-MH-1354-O, and no Motion for Rehearing or Appeal was subsequently filed.  This Court found   that the Rule does not require closure of the file or hearing and the legislature has not closed these proceedings or file. 

6.         At the Preliminary Hearing and the Evidentiary Hearing, the Court considered all legal arguments and evidence presented consistent with due process.  This Court makes these findings of law and facts based upon the pleadings, affidavits in the file, all exhibits admitted in evidence at the Preliminary Hearing and the Evidentiary Hearing:

A.     Hanford L. Pinette, “Patient” made a Living Will and made his wishes clear: He never wanted to be kept alive by a machine. The  “Patient” was competent at the time he made the Living Will and there is no indication that the  “Patient” revoked that intention. The “surrogate” presented the Living Will to the Hospital on admission.

 

B.     He signed a Living Will in 1998 and assigned his wife to carry out his wishes, designating her as his "surrogate" and signed a Durable Power of Attorney expecting his wishes to be carried out.

 

C.     In the will he directed that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong the process of dying, that he wanted to die naturally and receive medication only to alleviate pain.
 

D.     Today he lays in one of Orlando Regional Healthcare Systems, Inc., hospitals, where machines run his lungs, kidneys and medication supports his blood pressure. Doctors agree that he is unresponsive with no hope of recovery. His renal system, respiratory system and blood pressure support are all functioning by artificial means alone.  There is a failure of his organ system. Earlier this year, he suffered congestive heart failure, and remains hospitalized since February, and is currently at Lucerne Hospital.

 

E.      Alice Pinette, his “surrogate” states that she still communicates with him and she will not permit the hospital to follow the wishes of the “patient”.  This Court must review the “surrogate’s” decision and determine whether it is made in good faith with an honest effort to make the decision, which the “patient” would make if he could.   The “surrogate” testified that she had not discussed the Living Will since he has been in the hospital and did not tell him that he was not going home, even though she knew that he was not going home.  Her credibility is questioned considering the medical evidence and she presented no independent verification of her perception of his abilities to rebut the presumption under Section 765.302(3). 

 

F.      The doctors testified that the “patient” is not competent to make his own decisions at this time and is not likely to recover his mental capacity. The signing of a Living Will is to remove uncertainty about a maker’s wishes in the event of a terminal illness and/or incapacity. It is the Court’s responsibility to determine and enforce the express wishes of the maker and in this case the “patient”. 

 

G.     The argument should not center on the “surrogate's” wishes or desires, but whether the “patient” meets the medical requirements for the Living Will to be enforced in order to carry out the wishes of the “patient”. Orlando Regional Healthcare established that the “patient” will not get better and is attempting to abide by the patient's wishes.

 

H.     Doctor Sanjay P. Muttreja, the treating and attending physician and Doctor Juan J. Herran, a pulmonalogist and independent physician described the “patient’s” medical condition as being terminally ill.  With no "medical probability" of recovering, the “patient” meets the requirements of his Living Will. The hospital's Bioethics Committee, responsible for cases such as this, agrees with these findings.

 

 

            CONSIDERED, ORDERED AND ADJUDGED that:

 The Petition filed IN RE: HANFORD L. PINETTE, in this case: 48-2004-MH-1519, seeking expedited judicial intervention, filed by Petitioner Carol Paris, an interested adult person, on behalf of Orlando Regional Healthcare System, Inc., is GRANTED. 

HANFORD L. PINETTE, the “patient” accepted responsibility for his own destiny and his Living Will must be respected as his last wishes.  The Living Will in this case is valid under the laws of the State of Florida and complies with the statutory framework.

The Health Care Surrogate or the Durable Power of Attorney cannot override his intention.  Such is the prerogative of the person who utilizes the procedure of executing a Living Will.

This case emphasizes the need for people to sign Living Wills expressing their last wishes.  When a Living Will has been executed, the responsibility of the “surrogate” or one who has the Durable Power of Attorney is to respect the “patient’s” wishes expressed in the Living Will, regardless of the “surrogate’s” or the holder of the Durable Power of Attorney’s personal feelings.

It is the Court’s responsibility to enforce the “patient’s” wishes as stated in the Living Will.  The Court finds by clear and convincing evidence that the “patient” would have made the decision to enforce his Living Will.

The “surrogate” may only make decisions that the “patient” would have made if the “patient” were capable of making such decisions.

The Petitioner Carol Paris, an interested adult person, on behalf of Orlando Regional Healthcare System, Inc., shall implement and comply with the wishes of the Living Will of HANFORD L. PINETTE without legal recourse from the “surrogate” or any other party or entity.

            DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, this the 23rd day of November 2004.

 

 

                                                            _____________________________________

                                                                        LAWRENCE R. KIRKWOOD                                                                                                        CIRCUIT COURT JUDGE

 

COPIES FURNISHED THIS DATE TO:

David Evans, Attorney for Orlando Regional Healthcare System, Inc.

Also Hand delivery to Mr. Evans this date. 

Mr. Evans will mail copies to all interested parties not present.

 

William Ruffier, Attorney

Hanford Pinette at Lucerne Hospital, 818 South Main Lane, Orlando, FL

Alice Pinette, 12723 Eryn Blvd., Clermont, FL   34711

Cathy Noh, 12723 Eryn Blvd., Clermont, FL 34711

Ronald Pinette, 12723 Eryn Blvd., Clermont, FL 34711

Dr. Sanjay Muttreja at Lucerne Hospital

Dr. Juan Herran at Lucerne Hospital

Dilys Jagger at Lucerne Hospital