Nursing Home May Not Bill After Refusing to Honor Living Will

JULY 31, 1995 VOLUME 3, NUMBER 5

Lawrence Rettinger suffered from Parkinson’s disease and was concerned about being kept alive by machines after he was no longer able to communicate. Like millions of other Americans, he executed a Living Will.

In January, 1990, Mr. Rettinger was admitted to a North Carolina nursing home. His wife Nell provided a copy of his Living Will to the home at the time of admission. One year later, he contracted pneumonia and a nasogastric tube was inserted.

For several months, Mr. Rettinger received medications, food and fluid through his nasogastric tube. Finally, his wife requested that the nursing home remove the tube and enter a Do Not Resuscitate order.

The nursing home required that Mr. Rettinger’s physician and his wife comply with North Carolina statutes requiring a certification that Mr. Rettinger’s condition was terminal. On June 25, 1991, the physician signed the appropriate form and entered the Do Not Resuscitate order.

When the nursing home still did not remove the tube, Mrs. Rettinger sued to compel compliance with Mr. Rettinger’s Living Will. On September 12, a trial judge ordered that the tube be removed; Mr. Rettinger died two weeks after the removal was completed.

Two years later the nursing home brought suit against Mrs. Rettinger for $14,458 in unpaid nursing home bills. Mrs. Rettinger refused to pay, arguing that the services had been rejected by her and by her husband (because of his Living Will). The nursing home responded that the attending physician never signed the form expressly directing removal of the nasogastric tube, as the home’s reading of the North Carolina statute required.

The trial court granted a summary judgment in favor of the nursing home, finding that Mrs. Rettinger’s defense was invalid even if true. Mrs. Rettinger appealed.

The North Carolina Court of Appeals reversed the trial court and sent the case back for trial. The Court of Appeals found that the statute (which provides that treatment such as a nasogastric tube “may be withheld or discontinued upon the direction and under the supervision of the attending physician”) does not require that the physician personally direct removal of the tube.

At trial, Mrs. Rettinger will have to show that the statute’s requirements were met. If she is able to do so, the Court ruled, she will not be responsible for nursing home bills incurred after the date her husband would have been expected to die if his instructions had been followed. First Healthcare v. Rettinger, N.C. Ct. of App., May 2, 1995).

[Ed. note–this case is expected to be appealed to the North Carolina Supreme Court. A New York court recently ruled exactly opposite to North Carolina on very similar facts.]

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