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August 3, 1988

MARY ANN GERBEN, on her own behalf and as Administratrix of the Estate of ERIKA GERBEN, and JONATHAN GERBEN

The opinion of the court was delivered by: POLLAK


 What is before us this morning is a pair of motions to dismiss the complaint, motions submitted by the individual defendant Douglas Holsclaw and the institutional defendant Hahnemann Hospital. The third defendant, also an individual, Sussman, has not been served and so does not figure in the activities today.

 The suit before the Court is one brought by Mary Ann Gerben and Jonathan Gerben, the parents of an infant, Erika Gerben, who sadly was born afflicted with cystic fibrosis, and with substantial complications attendant to that. The subject of the litigation arises out of her brief and difficult fight. She was born in April of 1986, and died after a hospital life first at Jefferson, and within a few weeks after her birth, at Hahnemann. She died in April of 1987.

 The essence of the controversy is that, as alleged in the complaint, the defendant Hahnemann, and Hahnemann's two attending physicians, Dr. Holsclaw and his assistant Dr. Sussman, pursued with respect to Erika Gerben a course of aggressive and persistent care intended to perpetuate her life as long as possible, notwithstanding that it was apparent to the physicians (and the parents were so advised within a few months of Erika's birth) that she had only a very few months to live, at the longest.

 In the face of that prognosis, so the complaint tells us, the defendant doctors sought to pursue a protocol under which they would "take each and every treatment step possible to maximize the number of days, hours and minutes that Erika lived, regardless of the amount of pain and suffering such treatment caused her." Complaint para. 23.

 Erika's family, by contrast, "was guided by the belief that Erika's best interests would be served through managing her death through less painful and intrusive treatment methods, and were more concerned that the remaining few days and weeks of her life be as comfortable as possible, even if such a course of treatment reduced the number of days that Erika actually lived." Complaint para. 24.

 Against that background, so the complaint says in paragraph 27, "when disagreements arose as to the best modality of care and treatment for Erika, defendants Holsclaw and Sussman developed a policy and practice of:

 (i) failing to advise the Gerben family of the nature, purpose and extent of treatments provided to Erika;

 (ii) failing to obtain the consent of the Gerben family for treatments which they sought to implement but which they knew would not be agreed to by the Gerben family; and

 (iii) refusing to cease painful and intrusive treatment methods even after being advised by the Gerben family that such treatment was not consented to nor desired by the Gerben family."

 In paragraph 29 of the complaint, there is a recital of certain of the treatment methods allegedly pursued by the defendants Holsclaw and Sussman under the policy and practice described in paragraph 27. The included "repeatedly forcing hypodermic needles through Erika's abdomen without any anesthetic in order to obtain a sterile sample of her urine, when such a sample had minimal treatment value in the context of Erika's life; refusing to permit Erika to have Tylenol for discomfort, despite the fact that she had literally worn the hair off the back of her head while crying in pain," and other procedures and medications, such as repetitive withdrawals of blood for blood samples and repetitive insertions of intravenous tubes under circumstances leading to the collapse of the affected veins and to the infliction of substantial pain. Also identified was the administration of steroids "for the purpose of prolonging Erika's life, when such medication had significant side effects."

 The complaint alleges that the Gerben family, aware of the refusal of the defendants Holsclaw and Sussman to comport with the more moderate regimens that the Gerbens thought appropriate, complained to the hospital administrator and other hospital officials, but "none of those bodies took any steps to assist them in this dispute, thereby in effect ratifying the actions of the defendant doctors."

 On the basis of this factual recital, Mr. and Mrs. Gerben have brought suit in this court alleging two sorts of cause of action. The one which is asserted to give to this court jurisdiction over the case is a claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which proscribes discrimination on the basis of a handicap by institutions -- of which Hahnemann is acknowledged to be one for the purposes of this motion -- receiving federal assistance.

 In addition to the Section 504 claim, the complaint (which is not subdivided into separate counts) asserts conclusorily that "in performing the above described actions, defendants have violated plaintiff's rights under ...

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