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 LIFE SUSTAINING MEDICAL TREATMENT - DECIDING WHEN TO WITHDRAW /WITHHOLD

 by G. Bruce Ward, Esq.

 Families, medical providers and legal practitioners remain engaged in an often  difficult dilemma to determine when it is proper, if at all, to withdraw medical treatment to an individual thought to have no reasonable chance of recovery.  The reader should note that this issue is not akin to the controversies involving Dr. Jack Kevorkian since he is apparently summoned to assist in suicide procedures by employing a death inducing device.

 New Jersey’s experience with the Life Sustaining Medical Treatment (LSMT) issue became illuminated during the late 1970s with the Karen Ann Quinlan case.  Ms. Quinlan was determined to be hopelessly comatose yet she was being kept alive indefinitely  through intravenous feedings and a respirator.  This was an example of how medical technology had advanced far ahead of the social, ethical and legal questions which would arise.  Even though the Quinlans had no hope for their daughter’s recovery, who would actually disconnect the respirator?  Her Doctor?  Her Parents?  Her Minister? 

 In a landmark decision, the New Jersey Supreme Court recognized the right of Ms. Quinlan’s parents to disconnect the respirator and thereafter took a leadership role in the State to establish guidelines for LSMT.

 Through a series of Court decisions, Health Care Study Commissions and other planning efforts of the Legislature, New Jersey adopted the Advanced Directives for Health Care Act, (NJADHCA) which essentially recognizes the right of competent adults to control decisions about their own health care.  NJADHCA in principle permits a competent individual to decline medical treatment however, such a right is not absolute.  To err in either way – to keep a person alive when he would rather have been allowed to die, or to allow that person to die when he would have chosen to cling to life remains the central issue in each complex case.  Many can imagine the struggle to determine whether an elderly relative is competent to make a reasoned and informed decision such as LSMT.   

 At the core of the “Act” is the Advanced Directives portion which is in effect the  “Living Will”  provision.  This is a legally recognized statement concerning an individual’s health care preferences should they become incapacitated in the future.  By making such wishes known, the person who will assume primary responsibility for your care (your proxy or designated health care representative) will be able to speak with your physician on your behalf in the event an illness or injury prevents you from speaking for yourself.  

 In cases where further medical intervention is likely to be futile, likely to prolong an imminent dying process, or where the patient is permanently unconscious,  the physician is often placed in a difficult position, as are members of the patient’s family  if the patient’s advanced directives have not been clearly established.

Legal Lines © is presented as a public service of the Law Firm of G. Bruce Ward.  This article does not constitute legal advice or a legal opinion.  G. Bruce Ward maintains offices in Atlantic City and can be reached at 609.449-0061.  Readers are urged to consult with their attorney on specific legal questions they may have.

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DISCLOSURE OF LEAD PAINT HAZARDS IN HOUSING TRANSACTIONS

by G. Bruce Ward, Esq.

Regulations issued by the Department of Housing and Urban Development (HUD) and the Department of Environmental Protection Agency (EPA) address health problems which may be caused by exposure to lead in older homes.  The regulations at 24 C.F.R. [W91] § 35;  40 C.F.R. § 745 impose duties upon sellers, lessors and their agents to disclose to prospective purchasers and lessees conditions where lead based exposure might occur in certain transactions.  While the laws apply only to dwellings constructed prior to 1978, sellers and lessors must disclose the presence of all known lead-based paint hazards before finalizing a sale or lease transaction.

In addition to disclosure of all known lead-based hazards, the prospective occupant has the right to receive copies of all available records or reports regarding lead-based hazards (including soil, dust or other materials) in the living and common areas.  Thus, when considering the purchase of an older residence, inspection by a Certified Housing Inspector is highly advised since the seller may not be aware of lead based hazards and would have no disclosure obligation for such hazards which may be present.

Sales contracts and leases are obligated to reflect these requirements by attaching a disclosure and warning statement and any known reports.  In addition, the EPA pamphlet “Protect Your Family From Lead in Your Home” or the companion brochure issued by the NJ Dept. of Environmental Protection (DEP) must be provided to the buyer or lessee.  

It is important to remember that the intent of the policy which underscores the EPA regulations is to provide warning not remediation.  The regulations themselves do not and cannot force a seller or landlord to make repairs.  Accordingly, prior to signing a contract or lease, the prospective occupant may wish to negotiate contingency clauses providing for re-negotiation or correction of the condition if lead based hazards are found later.

Interestingly, certain other types` of facilities are exempt from the regulations including:

-  foreclosure sales 

-  zero bedroom units (efficiencies)

-  elderly only designated housing

-  leases of less than 100 days

- leases where a Federal or State inspection disclosed no hazard

Violations of the regulations may result in the imposition of significant fines.  In addition, the EPA has authority to pursue criminal sanctions which may result in imprisonment for repeat and willful violators. In a civil action brought against a seller or landlord for failure to disclose known lead-based paint hazards, the occupant may be awarded treble damages, attorney’s fees, court costs, and expert witness fees.       

Legal Lines © is presented as a public service of the Law Firm of G. Bruce Ward.  This article does not constitute legal advice or a legal opinion.  G. Bruce Ward maintains offices in Atlantic City and can be reached at 609.449-0061.  Readers are urged to consult with their attorney on specific legal questions they may have.

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 I GOT A TICKET FOR DUI.  I WAS SO DRUNK THE BREATHALYZER METER BROKE DOWN!

 by G. Bruce Ward, Esq.

DWI, Driving While Intoxicated; is a very serious motor vehicle violation in New Jersey where convictions result in license suspensions, fines, surcharges, required driver education classes (IDRC) and the requirement to pay for and have interlock devices installed on your vehicle.

Now pay attention to the first word of the charge “Driving.”  What that means is that the state must prove, beyond a reasonable doubt, the defendant was actually driving the vehicle. The term lawyer’s use for DWI defense is “operation.”     

Proving operation is often not all that cut and dry as was the case in State v Joshua Putz  A-1004-08T4 [unpublished].  In this case, Putz parked his vehicle in a farm turnaround to meet up with friends at a restaurant.  Defendant’s witnesses testified that Putz was driven in another car from the parked location and dropped back off to his car after an evening of drinking. Apparently Putz had a great time raising glass after glass since he became without question, thoroughly inebriated.  

Putz, who was in no condition to drive, got into his vehicle, turned on the motor and went to sleep.  A police officer suspicious of an occupied vehicle at 3:00 am with the motor running approached the car finding Putz sleep at the wheel.  The officer detected a strong odor of alcohol, performed field sobriety tests and later, a breathalyzer which Putz failed. He was subsequently issued a summons for DWI.

In Municipal Court, Putz was convicted of the DWI charge after a brief trial in which the officer’s testimony was accepted as evidence to compel a guilty verdict. The Municipal Court viewed the fact that Putz was sitting in his vehicle in a remote area with the engine running, with the headlights on and since the handbrake was not engaged, the court reasoned that Putz  must have driven to the location. There was no dispute whatsoever the fact that Putz was intoxicated.  

Putz appealed the, the case up to the Appellate Division which reversed the conviction since the state could not prove that he actually operated the vehicle.   Notwithstanding the fact that Putz was found in the driver’s seat, keys in the ignition, lights on with the motor running, Putz did the right thing by not driving and simply used the running engine to keep warm during a cold night. 

Legal Lines © is presented as a public service of the Law Firm of G. Bruce Ward.  This article does not constitute legal advice or a legal opinion.  G. Bruce Ward maintains offices in Atlantic City and can be reached at 609.449-0061.  Readers are urged to consult with their attorney on specific legal questions they may have.