Dying Patient's 'Rights' Bow to Hospital Policy

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

ing the Tennessee State Conference of

the NAACP and the League of Women

Voters (LWV), were “prevailing par-

ties” under federal law in obtaining an

injunction, even though the case later

became moot. The voting rights advo-

cates earned their fees, despite the

legislature’s subsequent repeal of the

oending legislation and the plaintis’

voluntary dismissal of the case.

In May 2019, Tennessee’s governor

Bill Lee signed new voting rules man-

dating training and similar requirements

for parties to engage in voter regis-

tration initiatives. Shortly thereafter,

the NAACP and LWV f‌iled a motion

seeking a preliminary injunction in the

U.S. district court. In September 2019,

the trial court granted the preliminary

injunction, f‌inding that the voting rights

advocates would likely succeed on the

merits of their constitutional challenge

to the training requirements. Before

a f‌inal order could be issued, how-

ever, the Tennessee General Assembly

repealed the oending law, and the

plaintis dismissed the case.

Despite the mootness of the case,

the district court determined that the

voter rights advocates’ win on the

“likelihood of success on the merits”

element was sucient to hold that

they were the prevailing party in the

litigation. The district court held that

the voter rights groups were entitled

to applicable attorney fees and court

costs despite their legal challenge

becoming moot before the trial court

could enter a f‌inal appealable order.

The Tennessee secretary of state

appealed the fee award to the Sixth

Circuit. Tennessee argued that the grant

of the preliminary injunction was an

interlocutory order and that the voter

rights groups therefore could not be

prevailing parties. The appellate court

disagreed, holding that the voter rights

groups were the prevailing parties by

obtaining their preliminary injunction

victory, even though the plaintis vol-

untarily dismissed the case shortly after

the law was repealed.

The appellate court found that vot-

ers who were registered during the

preliminary injunction period could

not be “unregistered” when the injunc-

tion expired, making the lower court’s

injunction order f‌inal. The court also

held that when a preliminary injunction

is granted at the district court level and

not challenged on appeal, the case’s

procedure and record are “enduring

enough to support prevailing-party

status.”

The dissenting opinion argued that

the majority broke with the Supreme

Court precedent in Buckhannon Board

& Care Home Inc. v. West Virginia

Department of Health & Human

Services, where plaintis were deemed

not entitled to an attorney fees award

because the defendants only invali-

dated the challenged law. Further,

the dissenting opinion argued that in

instances where “a state-defendant

voluntarily repeals the statute before a

merits decision,” organizations should

not be entitled to fees.

The Sixth Circuit’s holding highlights

the tremendous expense and resources

that are needed to pursue voting rights

cases, especially when a claimant

needs to marshal substantial evidence

to prove a widespread constitutional

or statutory violation, explains Allegra

Hardy-Lawrence, Atlanta, GA, cochair

of the ABA Litigation Section’s Minority

Trial Lawyer Committee. The ability to

recover legal fees and court costs make

the investment worthwhile, she adds.

“The fee-shifting provisions of our civil

rights laws allow individuals and civic

groups to mount legal challenges to

unlawful election practices with the

conf‌idence that, in success, their enor-

mous investment is somewhat recover-

able,” she continues. Hardy-Lawrence

points out that the Sixth Circuit’s deci-

sion is compatible with practical reality

because so few cases are litigated to

f‌inal judgment.

Although the state of Tennessee,

rather than individual clients or cor-

porations, was required to pay the

imposed fees, the Sixth Circuit encour-

aged more voter rights litigation with

its decision, observes John S. Austin,

Raleigh, NC, cochair of the Litigation

Section’s Professional Liability

Committee. Although the state was

required to pay fees as part of the

court’s decision, the fees do not “pun-

ish the State, but encourage attorneys

to represent and defend citizens’ civil

rights,” Austin clarif‌ies.

Recovery of a litigation investment

may be necessary to protect essential

rights. “Section 1988 allows for dis-

cretionary granting of fees and costs

because civil rights cases are not easy

or prof‌itable, but must be taken on to

ensure all of our fundamental rights

continue; so when a party has met the

legal standards to be granted fees and

costs, it should stand,” asserts Griselda

Vega Samuel, Chicago, IL, cochair

of the Section’s Diversity, Equity &

Inclusion Committee.

Dying Patient’s

“Rights” Bow to

Hospital Policy

By Michael Stef anilo Jr., Litigation

News Associate Edi tor, and Daniel

P. Elms, Litigation News Edi tor-in-

Chief

A state appellate court refused to order

a hospital to permit an intubated and

ventilated COVID-19 patient’s unali-

ated treating physician to administer

an unproven, but possibly life-saving,

drug in contravention of hospital treat-

ment protocol. The court reasoned that

“a judiciary is called upon to serve in

black robes, not white coats. And it

must be vigilant to stay in its lane and

remember its role. Even if we disagree

with a hospital’s decision, we can-

not interfere with its lawful exercise of

discretion without a valid legal basis.”

ABA Litigation Section leaders diverge

on whether the court’s conclusion was

sound but applaud its willingness to

resolve what had indisputably become

a “moot” issue upon the patient’s

death.

In Shoemaker v. UPMC Pinnacle

Hospitals, a patient tested positive for

COVID-19 and was hospitalized at the

defendant’s medical facility. The hospi-

tal’s protocol for COVID-19 treatment

did not include ivermectin, as the hos-

pital had determined that it was “not

well-studied.” The patient’s condition

worsened, and he was later sedated,

intubated, and placed on a ventilator.

The patient’s spouse, acting under

power of attorney, obtained a prescrip-

tion for ivermectin, considered by some

at the time to be a life-saving treatment

option, from a physician who was not

credentialed at the hospital. The hos-

pital refused to administer the drug,

and the spouse sought injunctive relief.

The trial court granted the spouse’s ex

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