Terri Schiavo-like Family Battle over Latino’s End-of-Life Care Ends in Wife’s Favor

Calif. Judge Rules Spouse is “Presumptive Healthcare Surrogate” When Partner is Unconscious
March 12, 2018

Fifteen months after Juan Fernando Romero’s family sued his wife, Ana Romero, to wrest control of his end-of-life care from her, a judge ruled last week that Ana had the legal right to end treatment to artificially prolong his life after he suffered severe brain damage that left him in a permanent vegetative state. Brain injured patients in a permanent vegetative state have irreversibly lost their capacity for consciousness but retain some autonomic (involuntary or unconscious) physiological functions, such as digestion and urination.

Following a hearing in the case last Monday, March 5, Los Angeles Superior Court Judge Mary Thornton House ruled (see complete decision at: bit.ly/LLDFvAnaRomero):

  • “As his spouse, Ana is the presumptive health care surrogate [a/k/a proxy] for Juan Fernando in light of his incapacitation.” (Bullet point 1 on page 11 of ruling).
  • “Not one member of Juan Fernando’s immediate family (mother, father, sisters) ever discussed with him what his wishes were if he was in a permanent vegetative state, bedridden, and unable to recover or communicate.” (Bullet point 3 on page 13).
  • “This court finds that the testimony regarding current Catholic doctrine as to when it was suitable (or not) to withhold artificial food and hydration reflected a range of acceptable circumstances, including those present here.” (2nd sentence in 1st paragraph on page 14).
  • “As a result of the overwhelming evidence that Juan Fernando is incapable of any kind of conscious response, [his sister] Lilian’s beliefs that her brother is aware of her and communicating with her are mistaken.” (Last sentence before bullet 8 on page 15).
  • “Her [Ana’s] decision making as Fernando’s surrogate was in full compliance with the HCDL [Health Care Decisions Law].” (Bullet 14 on page 17).
  • “Ana and Fernando’s daughters…would suffer emotional distress if images of their gravely ill father used in this trial concerning evidence of his medical condition were published in any digital or print format.” (Bullet 17 on page 19).

“I am thankful for the judge’s ruling validating my judgment to follow my husband’s preferences for end-of-life care after doctors said he would not recover, that he died of natural causes and I fully complied with both Catholic doctrine and the Health Care Decisions Law,” said Ana. “But tragically this lawsuit prevented me from honoring my husband’s preferences for his end-of-life care, so he needlessly lingered for another six months before he died.”

“Ana Romero could have decided to drop this case after her husband died to focus on her role as a single mother of their two young children and sole family breadwinner,” said Jonathan Patterson, one of Ana’s lawyers and staff attorney for Compassion & Choices. “But she bravely battled on to ensure Fernando’s tragedy served a greater purpose to benefit others, by discouraging similar lawsuits that only cause pain and suffering for everyone involved.”

The Romero case illustrates the importance of completing an advance directive and appointing a healthcare proxy who understands your wishes and can carry out your wishes if you become unconscious, especially at the end of life,” said Jennifer Brockett, a Los Angeles-based partner for the law firm of Davis Wright Tremaine LLP.   

On May 3, 2015, while Ana was pregnant with their second child, Juan Fernando, 35, suddenly became ill and suffered severe brain damage from lack of oxygen for over 15 minutes. It left him in a permanent vegetative state with no chance of recovery. After Fernando suffered numerous bouts of infection and pneumonia for more than a year-and-a-half, his wife Ana reluctantly accepted his looming death and arranged for him to receive palliative care at the home of her and their two young children.  

Unfortunately, on Dec. 9, 2016, the day before Ana had arranged to bring Fernando home, his sister and parents filed two lawsuits sponsored by the Life Legal Defense Foundation.

“This case is grotesquely similar to the Terri Schiavo case,” said Jon B. Eisenberg, a prominent Northern California appellate lawyer, who worked with Compassion & Choices to defend Ana Romero and was one of the attorneys for Michael Schiavo, the husband of Terri Schiavo. “Both are classic examples of ‘right to life’ zealots taking advantage of and dividing grieving families to promote their extremist political agenda without any concern about how their cases damage these people’s lives.”

The first suit sought to overturn Ana’s healthcare decision-making authority and the second suit urged the court to appoint his sister as Fernando’s healthcare proxy to keep him on life support.

Fernando’s sister and parents claimed that because he had been raised a devout Catholic, he would not have wanted his feeding tube removed. To Ana’s distress, they insisted he was showing signs of consciousness, even though a physician they had hired to examine him had concluded that he was permanently unconscious, rendering him unable to speak or to understand and respond to vocal inquiries whether he wanted to be kept “alive.”

“To see if I was mistaken, I brought our newborn second child to the hospital to visit her father, hoping he would recognize his daughter,” said Ana. “I was so sad when he did not.”

On June 3, 2017, Fernando passed away at age 37, after the trial of the healthcare proxy case had ended and Judge House was in the process of making her ruling that she issued last Monday, March 5.

Compassion & Choices
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Patricia A. González-Portillo
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