{
  "id": 11920062,
  "name": "FIRST HEALTHCARE CORPORATION d/b/a HILLHAVEN SOUTH, INC. d/b/a WINSTON-SALEM CONVALESCENT CENTER, Plaintiff v. NELL H. RETTINGER, Ind., and NELL H. RETTINGER, as personal representative of the Estate of Lawrence John Rettinger, Deceased, Defendant",
  "name_abbreviation": "First Healthcare Corp. v. Rettinger",
  "decision_date": "1995-05-02",
  "docket_number": "No. 9421SC634",
  "first_page": "600",
  "last_page": "608",
  "citations": [
    {
      "type": "official",
      "cite": "118 N.C. App. 600"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "49 ALR4th 812",
      "category": "reporters:specialty",
      "reporter": "A.L.R. 4th",
      "opinion_index": -1
    },
    {
      "cite": "200 S.E.2d 799",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1973,
      "pin_cites": [
        {
          "page": "806"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "284 N.C. 348",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561845
      ],
      "year": 1973,
      "pin_cites": [
        {
          "page": "358"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/284/0348-01"
      ]
    },
    {
      "cite": "N.C. Gen. Stat. \u00a7 90-321",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 5,
      "pin_cites": [
        {
          "page": "(b)(l)"
        }
      ],
      "opinion_index": 1
    }
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    "word_count": 3137
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  "last_updated": "2023-07-14T20:04:31.897721+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge McGEE concurs.",
      "Judge WALKER dissents."
    ],
    "parties": [
      "FIRST HEALTHCARE CORPORATION d/b/a HILLHAVEN SOUTH, INC. d/b/a WINSTON-SALEM CONVALESCENT CENTER, Plaintiff v. NELL H. RETTINGER, Ind., and NELL H. RETTINGER, as personal representative of the Estate of Lawrence John Rettinger, Deceased, Defendant"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nI.\nMrs. Rettinger argues that genuine issues of material fact exist, making summary judgment for Hillhaven improper. Summary judgment is appropriate when \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... [viewed in the light most favorable to the non-moving party,] show that there is no genuine issue as to any material fact and that a[] party is entitled to a judgment as a matter of law.\u201d G.S. 1A-1, Rule 56(c).\nMrs. Rettinger argues that genuine issues of material fact exist as to whether the requirements of G.S. 90-321 were met before the naso-gastric tube was removed by court order in September 1991. G.S. 90-321(b) provides:\nIf a person has declared ... a desire that his life not be prolonged by extraordinary means or by artificial nutrition or hydration, and the declaration has not been revoked . . . ; and\n(1) It is determined by the attending physician that the declarant\u2019s present condition is\na. Terminal and incurable; or\nc. Diagnosed as a persistent vegetative state; and\n(2) There is confirmation of the declarant\u2019s present condition as set out above in subdivision (b)(1) by a physician other than the attending physician;\nthen extraordinary means or artificial nutrition or hydration, as specified by the declarant, may be withheld or discontinued upon the direction and under the supervision of the attending physician.\nHere, Dr. Romm stated in his affidavit that he signed a form sent by Norman Sloan, Mr. Rettinger\u2019s attorney, \u201cwhich stated that Mr. Rettinger\u2019s condition was terminal and incurable and ordered removal of the nasogastric tube.\u201d The form, signed by Dr. Romm on 25 June 1991, provided:\nI have examined Lawrence John Rettinger and have determined that his medical condition is terminal and incurable. Nutrition and hydration provided to Mr. Rettinger through a naso-gastric tube constitutes life-prolonging extraordinary means. Consistent with the Declaration of a Desire for a Natural Death executed by Lawrence J. Rettinger, I order the removal of the nasogastric tube. The family recognizes that implementation of Mr. Rettinger\u2019s Declaration of a Desire for a Natural Death will result in Mr. Rettinger\u2019s death within a relatively short period of time.\nThe language of this form conforms to the requirement in G.S. 90-321(b) that the attending physician determine that the declarant is terminal and incurable.\nHillhaven argues that Dr. Romm never told Hillhaven to remove the tube after he signed the form. However, the statute does not specify that the attending physician has to personally direct the facility to remove the tube. The statute simply provides that \u201cextraordinary means . . . may be withheld or discontinued upon the direction and under the supervision of the attending physician.\u201d Therefore, there is a genuine issue of material fact as to whether Dr. Romm\u2019s order to remove the nasogastric tube in the 25 June 1991 form he signed satisfies the language of G.S. 90-321(b) that the attending physician direct the removal of the nasogastric tube and whether his order was communicated to Hillhaven.\nG.S. 90-321(b) requires a physician other than the attending physician to confirm the attending physician\u2019s conclusion that the declarant\u2019s condition is terminal and incurable. Dr. Romm stated in his affidavit that \u201c[t]he findings in the [25 June 1991] form were . . . never confirmed by another physician.\u201d However, Norman Sloan stated in his affidavit that a second doctor was willing to confirm Dr. Romm\u2019s findings at the time Dr. Romm signed the form. Judge Reingold\u2019s September 1991 order, attached as Exhibit C to Hillhaven\u2019s May 1993 complaint, included a finding of fact that \u201cDr. Michael Adler, a colleague of Dr. Romm, saw and observed Mr. Rettinger in July, 1991, and it is Dr. Adler\u2019s opinion, which this court accepts, that Mr. Rettinger has severe Parkinson\u2019s disease and dementia and there is confirmation of Mr. Rettinger\u2019s present condition by Dr. Adler.\u201d Judge Reingold\u2019s finding of fact, combined with Mr. Sloan\u2019s assertion in his affidavit, creates a material issue of fact as to whether the statute\u2019s requirement of confirmation by a second doctor was met in July 1991. If the requirements of the statute were met in July 1991, then according to Hillhaven\u2019s own policy, set out in its 20 June 1991 letter to Mr. Sloan, Hillhaven should have removed the nasogastric tube in July 1991.\nII.\nHillhaven argues that Mrs. Rettinger is collaterally estopped by Judge Reingold\u2019s order from \u201crelitigating the issue of the reasonableness of [Hillhaven\u2019s] conduct concerning removal of the feeding tube.\u201d For collateral estoppel to apply:\n(1) The issues to be concluded must be the same as those involved in the prior action; (2) in the prior action, the issues must have been raised and actually litigated; (3) the issues must have been material and relevant to the disposition of the prior action; and (4) the determination made of those issues in the prior action must have been necessary and essential to the resulting judgment.\nKing v. Grindstaff, 284 N.C. 348, 358, 200 S.E.2d 799, 806 (1973). Hillhaven bases its collateral estoppel argument on Judge Reingold\u2019s finding of fact that:\nIt was reasonable for William L. Littlejohn, Jr., in his official capacity as Area Administr\u00e1tor of Winston-Salem Convalescent Center, Winston-Salem Convalescent Center, the Hillhaven Corporation and Dr. Fredric Romm to refuse to consent to the family\u2019s request that the nasogastric tube be withdrawn from Mr. Rettinger without a Court order authorizing withdrawal of the nasogastric tube.\nHillhaven\u2019s argument that Judge Reingold\u2019s finding of fact collaterally estops Mrs. Rettinger from \u201crelitigating\u201d the issue of Hillhaven\u2019s actions fails because determination of the \u201creasonableness\u201d of Hillhaven\u2019s actions was not necessary for Judge Reingold to conclude that the statutory requirements had been met so the nasogastric tube should be removed. Accordingly, collateral estoppel does not apply here.\nIII.\nMrs. Rettinger also argues that summary judgment was not appropriate because she is not obligated to pay for medical services rendered by Hillhaven after 26 June 1991. Mrs. Rettinger argues that she had previously requested removal of the nasogastric tube and if her late husband\u2019s declaration and her expressed wishes for the nasogas-tric tube to be removed had been honored, no other medical services would have been necessary. The plain language of the \u201cStandard Nursing Facility Services Agreement\u201d that Mrs. Rettinger signed when Mr. Rettinger was admitted to Hillhaven provided that Mrs. Rettinger agreed to pay for all services rendered to her husband. The agreement contains no language stating that Mrs. Rettinger would only pay for services she authorized. However, we have concluded above that there are genuine issues of material fact as to whether and when the requirements of G.S. 90-321(b), the living will statute, were met. If a jury determines that the requirements of the living will statute were complied with in July 1991, then the nasogastric tube should have been removed at that time. If the nasogastric tube had been removed in July 1991, it is likely that Mr. Rettinger would not have survived until 22 October 1991 and Mrs. Rettinger\u2019s alleged financial obligation to Hillhaven would have been substantially less.\nAccordingly, we reverse the summary judgment order and remand for trial to determine whether the requirements of G.S. 90-321(b) were satisfied in July 1991. If so, the factfinder will then need to determine how long after the nasogastric tube was removed would Mr. Rettinger have likely survived. If the requirements of G.S. 90-321(b) are found by the factfinder to have been met, Mrs. Rettinger will be responsible for paying for services rendered between 26 June 1991 and the date the factfinder determines Mr. Rettinger would have died if the tube had been removed in July 1991, but not for any costs incurred thereafter.\nIV.\nHillhaven argues in their brief that Mrs. Rettinger guaranteed payment of the services rendered from 26 June 1991 until 22 October 1991. We have reviewed the agreement which Mrs. Rettinger signed and conclude that Mrs. Rettinger did not sign as a guarantor. Under the terms of the agreement, Mrs. Rettinger was a joint obligor. Accordingly, Hillhaven\u2019s argument based on Mrs. Rettinger\u2019s purported status as a guarantor fails.\nV.\nHillhaven also argues that Mrs. Rettinger is liable for the services rendered under the doctrine of necessaries. We do not address this argument because we have already concluded that Mrs. Rettinger will be obligated to pay for the entire amount of medical services rendered by Hillhaven pursuant to the plain language of the agreement she signed unless the factfinder determines that the requirements of G.S. 90-321(b) were met in July 1991.\nIn sum, we reverse the entry of summary judgment and remand for trial.\nReversed and remanded.\nJudge McGEE concurs.\nJudge WALKER dissents.",
        "type": "majority",
        "author": "EAGLES, Judge."
      },
      {
        "text": "Judge. Walker\ndissenting.\nI disagree that genuine issues of material fact exist as to whether the requirements of N.C. Gen. Stat. \u00a7 90-321 were met before the naso-gastric tube was removed by court order in September 1991 and thus dissent.\nPlaintiff submitted the affidavit of Dr. Frederic L. Romm and Lawrence Rettinger\u2019s medical chart with its motion for summary judgment. In his affidavit, Dr. Romm states that:\n12. Between March 1991 and June 1991, I never made the necessary findings nor documented any findings in the medical record that Mr. Rettinger was terminal or incurable or that the nasogas-tric tube constituted extraordinary means.\n13. In June 1991, Hillhaven\u2019s policy was not the reason that I did not order withdrawal of Mr. Rettinger\u2019s nasogastric tube or make the findings required under the North Carolina Right to Natural Death Act. Given my understanding of the law and the advice of my attorney, I was not comfortable withdrawing the nasogastric tube from Mr. Rettinger without a court order.\n14. In July 1991, I took a one-month leave of absence. Just prior to this leave of absence, I received a form from the Rettingers\u2019 attorney, Mr. Norman Sloan, which stated that Mr. Rettinger\u2019s condition was terminal and incurable and ordered removal of the nasogastric tube.\n15. On June 25, 1991, I signed the form and returned it to Mr. Sloan ... I did not send a copy of the form to Hillhaven or ever communicate to Hillhaven that I had signed it. This form was never entered into Mr. Rettinger\u2019s medical record. The findings in the form were also never confirmed by another physician.\n17. As a result of the court\u2019s order, I made findings in Mr. Rettinger\u2019s medical record that his condition was terminal and incurable and that the nasogastric tube was extraordinary means. The findings were confirmed by another physician in the medical record. I then ordered removal of the tube and personally removed the nasogastric tube from Mr. Rettinger. Per my orders, Hillhaven fed Mr. Rettinger by mouth a liquid and then a puree diet.\nThe medical chart confirms Dr. Romm\u2019s statement that he made no findings in the chart pursuant to N.C. Gen. Stat. \u00a7 90-321 until 4 October 1991, after the court\u2019s order, and that on 5 October 1991, another physician confirmed Dr. Romm\u2019s findings in the medical chart.\nThis evidence establishes that the three requirements of N.C. Gen. Stat. \u00a7 90-321 were not met until 5 October 1991, after the court ordered that the tube be removed. Assuming that the language of the form signed by Dr. Romm on 25 June 1991 conforms to the requirement of N.C. Gen. Stat. \u00a7 90-321(b)(l), defendant produced no evidence tending to show that defendant or her attorney informed plaintiff that Dr. Romm had made the requisite findings. Moreover, plaintiff\u2019s evidence was in no way contradicted by defendant\u2019s evidence that a second physician was willing to confirm Dr. Romm\u2019s findings at the time he signed the form or by Judge Reingold\u2019s September 1991 order containing a finding of fact that \u201cDr. Michael Adler, a colleague of Dr. Romm, saw and observed Mr. Rettinger in July, 1991, and it is Dr. Adler\u2019s opinion, which this court accepts, that Mr. Rettinger has severe Parkinson\u2019s disease and dementia and there is confirmation of Mr. Rettinger\u2019s present condition by Dr. Adler.\u201d\nSince defendant failed to produce any evidence to contradict plaintiff\u2019s evidence that the requirements were not met until 5 October 1991, there were no genuine issues of material fact as to whether the requirements of N.C. Gen. Stat. \u00a7 90-321 were met before the nasogastric tube was removed on 5 October 1991 pursuant to the court\u2019s order in September 1991. Thus, summary judgment was properly granted in plaintiffs favor.",
        "type": "dissent",
        "author": "Judge. Walker"
      }
    ],
    "attorneys": [
      "Allman Spry Humphreys & Leggett, P.A., by David C. Smith and Linda L. Helms, for defendant-appellant.",
      "Smith Helms Mulliss & Moore, L.L.P., by Maureen Demarest Murray and Christine T. Nero, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "FIRST HEALTHCARE CORPORATION d/b/a HILLHAVEN SOUTH, INC. d/b/a WINSTON-SALEM CONVALESCENT CENTER, Plaintiff v. NELL H. RETTINGER, Ind., and NELL H. RETTINGER, as personal representative of the Estate of Lawrence John Rettinger, Deceased, Defendant\nNo. 9421SC634\n(Filed 2 May 1995)\n1. Death \u00a7 14 (NCI4th)\u2014 costs for nursing home services rendered after request to discontinue extraordinary life prolonging treatment \u2014 compliance with living will statute\u2014 genuine issues of material fact\nIn an action to recover for nursing home services rendered to a patient who was kept alive by means of a nasogastric tube and who had executed a living will, the trial court erred in granting summary judgment for plaintiff nursing home where genuine issues existed as to whether the attending physician directed the removal of the nasogastric tube and whether a second physician confirmed the attending physician\u2019s conclusion that the patient\u2019s condition was terminable and incurable before the tube was removed by court order as was required by the living will statute, N.C.G.S. \u00a7 90-321. If the statutory requirements were met, then defendant would be responsible only for charges from the date they were met until her husband would have died had the tube been removed, instead of for charges from the date she requested removal of the tube until he actually died some four months later.\nAm Jur 2d, Death \u00a7 686.\nLiving wills: validity, construction, and effect. 49 ALR4th 812.\n2. Judgments \u00a7 208 (NCI4th)\u2014 collateral estoppel inapplicable\nA finding of the reasonableness of plaintiff nursing home\u2019s refusal to remove a feeding tube from defendant\u2019s husband without a court order was not necessary for a judge to conclude that the requirements of the living will statute had been met and that the tube should be removed; therefore, collateral estoppel did not apply to prevent defendant from \u201crelitigating\u201d the issue of the reasonableness of plaintiff\u2019s conduct in plaintiff\u2019s action to recover for nursing home services rendered to defendant\u2019s husband after defendant had requested removal of the feeding tube.\nAm Jur 2d, Judgments \u00a7\u00a7 514-639.\nJudge Walker dissenting.\nAppeal by defendant from order entered 19 January 1994 by Judge C. Preston Cornelius in Forsyth County Superior Court. Heard in the Court of Appeals 2 March 1995.\nLawrence Rettinger (hereinafter Mr. Rettinger) cared for his first wife during her prolonged illness and eventual death from cancer. Mr. Rettinger married his second wife, Nell Rettinger (hereinafter Mrs. Rettinger), in November 1985. Prior to marrying Mrs. Rettinger, Mr. Rettinger was diagnosed with Parkinson\u2019s Disease. On 18 August 1983, Mr. Rettinger executed a \u201cDeclaration Of A Desire For A Natural Death\u201d pursuant to G.S. 90-321. In that document, Mr. Rettinger stated that he did not wish his life to be prolonged by \u201cextraordinary means if [his] condition [was] determined to be terminal and incurable.\u201d\nMr. Rettinger was placed in the Winston-Salem Convalescent Center (hereinafter Hillhaven) on 11 January 1990. Mrs. Rettinger signed a document entitled \u201cStandard Nursing Facility Services Agreement\u201d in which she agreed to be financially responsible for services provided by Hillhaven to her husband. Hillhaven was aware that Mr. Rettinger had executed a living will and retained a copy of it in Mr. Rettinger\u2019s medical file at Hillhaven.\nOn 4 February 1991, Dr. Fredric J. Romm, Mr. Rettinger\u2019s attending physician, transferred Mr. Rettinger to North Carolina Baptist Hospital for treatment of pneumonia. Dr. Mark Knudson, Mr. Rettinger\u2019s primary physician at Baptist Hospital, inserted a nasogas-tric tube to facilitate administration of his pneumonia medications. On 4 March 1991, Mr. Rettinger was returned to Hillhaven. Mrs. Rettinger stated in her affidavit that when Mr. Rettinger was returned to Hillhaven, he was \u201cbedridden, lying in a fetal position, unable to move and unable to communicate.\u201d She further stated that the family was informed that \u201che had little mental functioning, suffered from dementia, was in the late stages of irreversible Parkinson\u2019s Disease, and would die.\u201d Mrs. Rettinger alleged that Dr. Knudson had assured her that the tube would be removed within ten days of her husband\u2019s return to Hillhaven. The tube was not removed.\nMrs. Rettinger prepared a \u201cNo Code Blue\u201d form for Mr. Rettinger in March 1991, requesting that the staff not resuscitate her husband. Because she amended the form to request that no nasogastric tube be used, Hillhaven returned the form as invalid. Mrs. Rettinger then attempted to move her husband to another facility, but could not find another facility. She stated that she wanted to take him home but the Hillhaven staff told her she could not, \u201capparently because they felt [she] was not able to care for him.\u201d In March 1991, Dr. Romm informed Mrs. Rettinger that Hillhaven had a policy of not removing nasogastric tubes \u201cif to do so would likely cause a patient to starve or dehydrate to death.\u201d In a letter dated 20 June 1991, Hillhaven informed Mr. Rettinger\u2019s attorney, Norman L. Sloan, that Hillhaven would not remove the nasogastric tube unless the requirements of G.S. 90-321 were satisfied or Mrs. Rettinger obtained a court order for the removal of the tube. Mrs. Rettinger then filed suit against Hillhaven on 27 June 1991 for a declaratory judgment requiring removal of the nasogastric tube. On 12 September 1991, Judge William B. Reingold ordered that the tube be removed. There was no appeal from Judge Reingold\u2019s order. The tube was removed on 5 October 1991 and Mr. Rettinger died on 22 October 1991.\nOn 4 May 1993, Hillhaven filed a complaint against Mrs. Rettinger, individually and as personal representative of Mr. Rettinger\u2019s estate, for $14,458.43 for services rendered to Mr. Rettinger from 26 June 1991 to 22 October 1991. On 21 May 1993, Kenneth P. Carlson, Jr. was appointed as Guardian Ad Litem for Mrs. Rettinger to represent her in the action filed by Hillhaven. An answer was filed on Mrs. Rettinger\u2019s behalf on 23 June 1993 denying any indebtedness to Hillhaven based in part on the assertion that the services for which Hillhaven sought payment had been expressly rejected by Mr. Rettinger through his living will and by Mrs. Rettinger. Hillhaven made a motion for summary judgment on 4 January 1994 which was granted by Judge C. Preston Cornelius on 19 January 1994. Subsequently, Mrs. Rettinger died. Ashlyn H. Chadwick, the personal representative of Mrs. Rettinger\u2019s estate and the substituted personal representative of Mr. Rettinger\u2019s estate, appeals.\nAllman Spry Humphreys & Leggett, P.A., by David C. Smith and Linda L. Helms, for defendant-appellant.\nSmith Helms Mulliss & Moore, L.L.P., by Maureen Demarest Murray and Christine T. Nero, for plaintiff-appellee."
  },
  "file_name": "0600-01",
  "first_page_order": 632,
  "last_page_order": 640
}