Pacer Surfing Thursday -- Judge Jordan's Langbehn Ruling.

You may have seen the coverage regarding Judge Jordan's dismissal of the case involving a lesbian woman and her children who were not allowed to visit her dying partner's bedside at Jackson. The Herald's story is here.

The NYT did a nice wrap-up of Judge Jordan's ruling:

Ms. Langbehn sued Jackson Memorial Hospital in Miami, but hospital lawyers argued that the hospital did not have a legal duty to grant visiting rights when a patient was in the hospital’s trauma center.

Judge Adalberto Jordon (SIC!!!) of Federal District Court agreed with the hospital and dismissed the case.

“Decisions as to visitation must be left to the medical personnel in charge of the patient, without second-guessing by juries and courts,” Judge Jordon wrote. “A trauma unit is not like a regular hospital setting, and visitors may interfere with what medical personnel are trying to accomplish in a difficult environment.”

While Judge Jordon sided with the hospital’s legal argument, he was critical of the hospital’s failure to communicate with Ms. Pond’s family.

“The defendants’ lack of sensitivity and attention to Ms. Langbehn, Ms. Pond and their children caused them needless distress during a time of vulnerability,” the judge wrote. The hospital, he continued, “exhibited a lack of compassion and was unbecoming of a renowned trauma center; unfortunately, no relief is available for these failures.”

In a statement, Jackson Memorial said it did not restrict visitation based on sexual orientation.

Those with a PACER account can see Judge Jordan with an A's ruling here.

Kudos to Don Hayden at Baker & McKenzie who assisted Lambda Legal's Beth Littrell on behalf of Ms. Langbehn.

Reading the opinion, which as usual with Judge Jordan is personal (lots of references to "I") and thoughtful, you get a sense for how badly screwed up Florida's tort law is.

On the issue of visitation rights, Judge Jordan held as follows:

Although this is necessarily an Erie guess, I predict that the Florida Supreme Court would hold that doctors at a trauma unit do not have a freestanding legal duty, untethered to informed consent by a patient or health care surrogate, to allow visitation with a patient who is in critical condition and undergoing treatment – as was Ms. Pond from 3:30 p.m. to about 6:30 p.m. – or to allow visitation with a terminal patient – as was Ms. Pond from 6:30 p.m. to 11:30 p.m. – who is going to be transferred to a regular room where visitation will be permitted. It may sometimes make sense for doctors to allow close relatives to visit a patient inside a hospital, even in a trauma unit or an intensive care unit, unless they have medical reasons for not allowing visitation. Visitation may, in certain situations, even be therapeutic. But decisions as to visitation must be left to the medical personnel in charge of the patient, without second-guessing by juries and courts. A trauma unit is not like a regular hospital setting, and visitors may interfere with what medical personnel are trying to accomplish in a difficult environment, or bring with them germs or microbes that create other unexpected problems. A decision to not allow visitation in a trauma unit setting – where emotions are already at their breaking point and where lives may literally hang in the balance – does not create “unreasonable risks” of harm to the patient or to the putative visitors so as to establish a legal duty in tort.

In the event of appeal and should the 11th reverse on the question of duty, Judge Jordan also evaluated the claims for emotional distress damages under the "impact rule."

This evaluation basically requires the Judge to throw up his hands and wonder how the Florida Supreme Court might rule:

The Florida Supreme Court has noted that it is difficult to predict how it will apply (or not apply) the impact rule, see, e.g., Tanner, 696 So.2d at 708 (“[w]e recognize that there is a legitimate legal argument which can be directed against any particular legal theory upon which recovery in the instant case might be predicated and that the law does not provide a remedy for every wrong”), and several Justices on both sides of the impact rule debate have criticized the Court’s ad hoc approach. Compare, e.g., Abril, 969 So.2d at 208-09 (Pariente, J., concurring) (noting that Court’s “case-by-case approach as to the impact rule has done nothing to stabilize the law or to clarify when an exception will be recognized,” and calling for abrogation of impact rule), with, e.g., Gracey, 837 So.2d at 359-62 (Harding, J., dissenting) (criticizing ad hoc approach and advocating adherence to impact rule). The short of the matter is that there is no good way to figure out whether or not the Florida Supreme Court would apply the impact rule in this case. Predicting the Florida Supreme Court’s future approach to the impact rule is even more perilous given that the Court now has four new Justices.

I love the simplicity and understated, matter-of-fact way the Judge lays out how messed up the jurisprudence is in this critical area of the law.

Our condolences go out to Ms. Langbehn and her family.