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Jan. 25, 2008
Fighting to save father's life
New medical evidence is presented in the Sam Golubchuk case.
RHONDA SPIVAK
The condition of an 84-year-old Orthodox Jew who is on life support in a Winnipeg hospital is improving after doctors unsuccessfully tried to pull the plug on him over a month ago, against his family's will and religious beliefs.
Miriam Geller said her father, Sam Golubchuk, is alert, his eyes are open and his health has improved over the last two weeks. He has been on life support since Nov. 7, 2007.
According to Neil Kravetsky, the family's lawyer, it is only because the family went to court in November and obtained an ex parte injunction (without notice to the hospital) that doctors were prevented from removing Golubchuk's life support. Kravetsky said that, at a Dec. 11 hearing in the case, Golubchuk's "entire chart was not presented by the hospital, only some parts of it." He asked for and received the chart from the Grace Hospital after the hearing.
On Dec. 12, one day after the court hearing, a notation in Golubchuk's hospital records pointed to some improvement in his neurological condition, including "some eye movement to voice," "more spontaneous eye opening" and "more spontaneous right arm movement." On Dec. 17, 2007, the word "Awake" was written in his chart.
Following the Dec. 11 hearing, Kravetsky sent the patient's medical records to Dr. Daniel Rosenblatt, a critical care physician in New Jersey, and Dr. Leon Zacharowicz, a pediatric neurologist from New York with an interest in Jewish medical ethics. Both doctors affirmed affidavits filed in court, which gave medical evidence in support of continuing Golubchuk's life support, including the use of a ventilator and feeding tube.
Hospital lawyers objected to the admissibility of the affidavits, taking the position that it is not for the court to decide whether to prefer the opinion of one doctor over another.
At a hearing on Jan. 11, 2008, before Justice Schulman of the Manitoba Court of Queen's Bench, Bill Olson, a lawyer for the hospital, said, "The issue is whether the court, through an injunction, should be interfering in doctors' medical decisions."
The hospital maintains that it is the right of the team of treating physicians to decide when to terminate life support, as opposed to the family or the courts. Otherwise, Olson said, the medical system could be bogged down and not function effectively if hospitals' decisions had to be scrutinized by the legal system.
At the same hearing, Kravetsky told Schulman that the affidavits of Rosenblatt and Zacharowicz were highly relevant and referred to material facts recorded in the hospital chart about Golubchuk's condition, which had not been put before the court by the doctors or the hospital.
"This court should have [Golobchuk's] full hospital chart. We are talking about a man's life," Kravetsky said. "The evidence is so important, justice requires that it be admitted."
Kravetsky also noted that, based on what had been written in Golubchuk's chart, it was Zacharowicz's opinion that the patient was "returning to his baseline neurological level before admission to the hospital." He added that Zacharowicz's statement – that he does "not believe that Mr. Golubchuk has been shown to be dying" – is highly relevant.
Olson said at the hearing that, even if the judge decides that the treating doctors have the right to make the decision to pull the plug, this may not happen, as the doctors would re-evaluate Golubchuk's condition at that time to see if the action is still warranted.
On Jan. 14, Schulman ruled that substantial portions of the affidavits of Rosenblatt and Zacharowicz, including references to the hospital charts showing Golubchuk was awake and had improved, were relevant and admissible as evidence.
Schulman has still to decide whether lawyers for the hospital will have the right to cross-examine Zacharowicz and Rosenblatt on their affidavits and, if so, how this will occur. It is possible that these two doctors will give evidence by video or will come to Winnipeg to testify.
"I am pleased with Justice Schulman's decision to allow most of the affidavit evidence of the two medical experts from the United States. Now all of the relevant evidence from Mr. Golubchuk's hospital chart will be before the court," said Kravetsky.
Golubchuk fell in June 2003 and suffered a brain injury. He was being cared for in a nursing home when he had to go to the Grace Hospital's emergency ward in October 2007, suffering from pulmonary hypertension and pneumonia.
Rhonda Spivak is a Winnipeg freelance writer.
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