Federal Judge Dismisses Tort Claims Against Florida Hospital and Staff Who Failed to Accord Compassionate Treatment to Life Partner of Dying Lesbian

What is one to make of U.S. District Judge Adalberto Jordan’s decision of September 29 in Langbehn v. The Public Health Trust of Miami-Dade County, No. 08-21813-CIV-JORDAN (U.S.Dist.Ct., S.D.Fla.)? Perhaps that there is not necessarily a legal remedy for every wrong, for Judge Jordan’s conclusion says that what the hospital did in disrespecting the relationship of a lesbian couple in a time of medical emergency "exhibited a lack of compassion and was unbecoming of a renowned trauma center," but, on the other hand, that no legal relief was available for these failings.

This case involves the sad and now-much-publicized story of Janice Langbehn and Lisa Marie Pond, longtime partners who in their twentieth-anniversary year, 2007, went with their children to Miami to embark on a Caribbean cruise. They never made it to sea, because Pond collapsed aboard ship and was rushed to Ryder Trauma Center at Jackson Memorial Hospital in Miami. Thence began the nightmare for Langbehn and the children, as they were at first treated as virtual strangers to Pond, denied access and information as she was struggling for her life in the trauma center. Langbehn claims that a hospital social worker said to her they she should not expect any information or access because they were in an "anti-gay city and state."

At about the time that Ryder doctors diagnosed an aneurysm as the cause of Pond’s trouble, a fax arrived at the hospital containing Pond’s power of attorney designating Langbehn to act as her guardian and to make medical decisions, and this was filed in Pond’s hospital record, but nobody informed Langbehn that it had arrived. It was not until almost an hour later that doctors first consulted with Langbehn, who consented on Pond’s behalf to the placement of a brain monitor, and more than a half hour later, Langbehn received her first real briefing from the doctors, with Pond’s parents on speaker-phone. At that time the doctors learned that Pond’s condition was inoperable, and Langbehn told them that Pond was a designated organ donor. She also asked if she and the children could see Pond now that medical efforts were being abandoned, but they continued to be excluded for forty more minutes, when they were finally allowed to accompany a priest who was there to administer last rites of the church to Pond. They were hurried back out after five minutes.

Langbehn kept asking to be able to see Pond, but all her requests were denied until after Pond was transferred from the trauma center to the intensive care unit hours later, and finally Langbehn and the children were allowed to visit. Pond passed away soon thereafter. Langbehn asserts that relatives of other patients were being given access to their loved ones in the trauma unit while she was forced to sit without any information or access to her life partner for prolonged periods of time. Surely, a legal spouse would not have been treated in this way.

Langbehn was distraught at the loss of her partner and at the way she was treated, went to Lambda Legal with her grievances, and the lawsuit eventuated. The problem for Lambda Legal was to somehow fit into the categories of civil liability the harms that Langbehn had suffered (and that Pond and the children suffered as well) from the hospital’s failure to recognize their relationship in this time of extreme emergency.

Judge Jordan found that these attempts to fit the various claims into the categories recognized by the law were unsuccessful. Part of the problem is that claims for harm have to fit into the formulas of tort law that are particularly demanding of the plaintiff, especially a plaintiff who is not in a direct contractual relationship with the parties she is suing. In order to recover in a tort proceeding the plaintiff must show that the defendant has violated some duty to the plaintiff, and that the violation caused an injury to the plaintiff. In the context of a hospital, it is common to find a duty to patients, but much more difficult to establish any sort of legal duty to the family and friends of plaintiffs.

Langbehn argued that the response of the hospital and various individual employees – the social worker, the doctors – was negligent, inflicting emotional distress on Langbehn, Pond and the children, and Langbehn presented allegations that this distress manifested itself, at least in her case, in physical symptoms. In addition, she tried to allege "per se tort," a claim that the hospital’s conduct should subject it to liability without meeting any of the more specific tort theories, on the argument that it was harmful conduct that does not meet acceptable social standards.

While Judge Jordan professed sympathy in his final lines, the bulk of the opinion is devoted to a decisive repudiation of every theory for relief that Langbehn advanced. The hospital has no duty to relatives of patients to afford access, wrote Jordan, and he could find no basis in Florida tort law for characterizing the relationships in this case as "fiduciary" relationships. Neither did he find that the conduct of the hospital and its employees was so extreme and outrageous by comparison to other Florida cases that the demanding test for "intentional infliction of emotional distress" could be met in this case.

While acknowledging that Langbehn, as the designee of a medical power of attorney that was promptly faxed to the hospital, did have rights that must be respected under Florida law, the court found that those rights had, at least minimally, been respected. Although certain personnel were callous and unfeeling and blocked Langbehn from the degree of access that would have been humane and compassionate, the court found that doctors did consult Langbehn more than once, and that the complaint failed to specify what decisions Langbehn could have made that would be any different from the care that was provided.

Jordan observed that although Florida has a patient bill of rights statute, it is not applicable to this lawsuit because there was no plausible allegation of violation of Pond’s rights, and as the "patient" in this case, she was the only one with rights under the statute. Jordan also noted that these Florida statutes specifically do not authorize private law suits for their enforcement.

Reading this opinion is a heart-sinking experience. Some of that is because it shows the limitations of tort law in dealing with realities of modern life. At the same time, one can imagine a judge more inclined to find some theoretical basis for redress when the hospital’s conduct is, in the judge’s few, censurable but not legally actionable, but even if such a friendly trial judge were to be found, any sizable damage award would be subject to appeal.

Langbehn and her lawyers, having suffered dismissal of the case, have a few weeks to decide whether to seek appellate review of this ruling.