Betancourt v. Trinitas - Publication of the Trial Court Opinion, Questioning Mootness

I was just about to request that the trial court opinion left standing by the Appellate Division's recent ruling, be published in the N.J. Super. (and thus also the A.2d) reporter.  Under New Jersey Court Rule 1:36-2(c), "Any person may request publication of an opinion by letter to the Committee on Opinion."  Under Rule 1:36-2(d), an opinion shall be published where, among other things, the decision determines a new and important question of law, or is of continuing public interest and importance. 

At first, I thought that the Appellate Division directly addressed and affirmed the satisfaction of these publication standards.  But then again, if the case is, as the court explains, so very "unique," then perhaps the publication standards are not satisfied after all.  How could Judge Malone’s analysis here be useful, if there is no analogous case?  But is the court right?

The court finds that the mootness exception is not satisfied because the "specific set of facts" in this case is unlikely to recur.  Butis this true?  Just like Ruben Betancourt, other patients have been the subject of unilateral treatment refusals apparently motivated by insurance status and/or by the desire to "bury" mistakes.  For example:

• Brianna Rideout (Pa)


• James Davis Bland (Tex)


• Kalilah Roberson-Reese (Tex)


• Tirhas Habtegiris (Tex)

The court mentions a third unique fact:  the factual uncertainty over Betancourt’s neurological condition.  But it seems this is factual uncertainty not important in a case that is literally moot, as the court would not be addressing this case so much as this type of case.  In short, I am not sure that the facts of Betancourt really are quite as unique as the court suggests. 

Moreover, even if there are few futility cases reaching the courts, there are logical reasons for this.  Earlier in its opinion, the court observes that end-of-life treatment cases are a classic example of a dispute capable of repetition yet evading review.  It seems contradictory for the court to later use the lack of such cases as evidence of the uniqueness of this very case.  Review articles in Critical Care Medicine and similar journals well-document the high frequency of end-of-life treatment conflict including futility disputes.  Even if most of these are resolved informally, judicial guidance is still needed to cast a clear “shadow of the law” in which this informal dispute resolution takes place (Pope & Waldman 2007).

Significant survey evidence shows that the dominant current practice is for providers to cave-in to surrogate demands.  Providers are typically too risk averse to stand-up to surrogates and do what the Trinitas providers did.  This is the main reason surrogates are rarely going to court for injunctions (before withdrawal) or for damages (after withdrawal).  The Appellate Division’s decision has left the Chancery Division ruling standing.  Moreover, the A.D. even provided dicta (especially in footnote 9) indicating that it thinks New Jersey law precludes withdrawing life support without consent.  In short, the current world of risk-averse providers caving-in to the demands of empowered surrogates has been reinforced.