Bernard Freedman on Betancourt v. Trinitas Hospital

Today, Santa Monica attorney and bioethicist Bernard W. Freedman posted a commentary reacting to coverage of Betancourt v. Trinitas Hospital in the Wall Street Journal and the Huffington Post.  

Freedman makes a few critical points.  First, he writes that “neither this case or the appeals court opinion is a ‘vehicle’ to establish policy. Courts do not make policy; rather they apply and interpret the law.”  While this is generally right, it may not be true here.  First, courts do make policy in those areas where legislatures fear to tread.  Second, New Jersey courts have a record of policymaking. 

Second, Freedman writes that “doctors practice medicine they do not make personal decisions for other people. Nor do courts.”  I agree with this.  This is the position of the family whose side I supported in the litigation.

Third, Freedman writes that “the appropriate question that should be before the court is whether or not the surrogate decision maker, in this instance Mr. Betancourt’s daughter, was actually carrying out the duties and responsibilities of a surrogate.”  This is an issue in the case that was briefed on appeal.  Freedman does make an extended argument that the evidence suggests the surrogate was not fully informed.  This indicates deficiencies in the clinical consultation and ethics committee processes, highlighting the inappropriateness of the court deferring to these mechanisms.