JANUARY 3, 1994 VOLUME 1, NUMBER 7
In 1986, New Yorker Jean Elbaum was admitted to the nursing home in a persistent vegetative state. Her husband vigorously objected to the provision of food and fluid by a feeding tube, and warned the nursing home that he would not pay for treatment he did not approve and his wife would not have wanted.
After court proceedings to determine what Mrs. Elbaum’s wishes might have been in such circumstances, Mr. Elbaum was permitted to move his wife to a hospice, where tubes were removed and Mrs. Elbaum died peacefully in 1989.
the original nursing home brought suit against Mr. Elbaum to recover the $100,000 cost of providing care for three years. Mr. Elbaum argued that the care was not authorized, and that he had no obligation to pay for unwanted treatment. the New York Court of Appeals (the highest appellate court in New York) has now ruled that Mr. Elbaum must pay the cost of care. The Court noted that Mr. Elbaum had signed admission documents promising to pay for his wife’s care (without indicating any limitations), and that the nursing home acted properly when it insisted on a Court determination of Mrs. Elbaum’s wishes. Since Mrs. Elbaum had never executed a Living Will or a Durable Power of Attorney, it was impossible to determine with certainty what her wishes would have been without Court involvement.
While it relies on New York law (which is much more restrictive than Arizona law in “right-to-die” matters), the Elbaum case serves as a potent reminder of the need for advance planning and execution of documents.
Perceptions of Aging
According to a national opinion poll conducted by Parade magazine and reported in its December 12, 1993, issue, older Americans have “fewer fears and less negative view of aging” than their younger counterparts. When asked for their greatest fears about aging, 35% identify potential illness and failing health, 31% cited inability to care for themselves, and 20% worried about running out of money.
Californian Nelene Fox believed that her health maintenance organization should pay for bone-marrow transplant surgery to treat her breast cancer. Her HMO argued that such treatment was experimental, at least when applied to conditions such as Ms. Fox’s, and refused to provide coverage. Ms. Fox brought suit against her HMO.
Two weeks ago (and eight months after Ms. Fox’s death) a jury awarded her estate and survivors more than $12 million in damages. The trial featured, among other items of evidence, testimony that the HMO executive who made the decision to refuse coverage was compensated partly on the basis of how much money he saved the HMO.
The $12 million verdict does not include punitive damages which were tried separately.