## Facts

- Lawrence J. Rettinger suffered from Parkinson’s disease and executed a “Declaration of a Desire for a Natural Death” stating he did not want his life prolonged by extraordinary means, including artificial nutrition or hydration, if his condition became terminal and incurable.
- Lawrence became a resident of Winston–Salem Convalescent Center, operated by First Healthcare Corporation (the Center), and a copy of his declaration was placed in his file.
- Lawrence was transferred to a hospital for treatment of pneumonia, and physicians inserted a nasogastric (NG) tube to provide nutrition and hydration.
- After Lawrence returned to the Center with the NG tube in place, his wife, Nell H. Rettinger, was told his condition was irreversible and incurable and requested removal of the tube based on the declaration.
- The Center refused to remove the NG tube, citing its policy not to remove a nasogastric tube if removal would cause the patient to starve or dehydrate to death.
- On June 25, 1991, Lawrence’s attending physician, Dr. Frederic Romm, signed a form prepared by Lawrence’s attorney stating that Romm had determined Lawrence’s condition was terminal and incurable and that Romm had ordered removal of the NG tube as life-prolonging extraordinary means consistent with the declaration.
- On September 12, 1991, a superior court judge ordered the NG tube removed after finding that a second physician had confirmed Romm’s determinations as required by N.C. Gen. Stat. § 90-321(b).
- The NG tube was removed on October 5, 1991. Lawrence died on October 22, 1991.
- The Center sued Nell Rettinger (individually and as personal representative of Lawrence’s estate) for payment for services provided from June 26, 1991 through October 22, 1991.
- Nell argued that if the NG tube had been removed on June 26, 1991 in accordance with the declaration, Lawrence would have died sooner and the post–June 26 charges would not have been incurred.
- The Center relied on an affidavit from Dr. Romm stating he never sent the June 25 form to the Center and that his findings about Lawrence’s condition were never confirmed by another physician.
- The trial court granted summary judgment to the Center for the full amount claimed, and Nell appealed.

## Issues

1. Whether summary judgment was proper on the Center’s claim for payment when the evidence created genuine disputes about whether the requirements of N.C. Gen. Stat. § 90-321(b) for withholding or discontinuing artificial nutrition or hydration were satisfied before the NG tube was removed.
2. Whether summary judgment was proper given disputed facts about whether an operative order to remove the NG tube was communicated to, or known by, the Center before the September 12, 1991 court order.
3. Whether those factual disputes were material because they could affect the Center’s right to recover charges for services rendered from June 26, 1991 to October 22, 1991.

## Decision

- The North Carolina Court of Appeals reversed the trial court’s grant of summary judgment for the Center.
- The court held that genuine issues of material fact existed regarding whether the statutory conditions in N.C. Gen. Stat. § 90-321(b) were met before the NG tube was removed.
- The case was remanded for further proceedings.

## Legal Principles

- Summary judgment is proper only when the record shows no genuine issue of material fact and the movant is entitled to judgment as a matter of law; the evidence is viewed in the light most favorable to the nonmovant. (N.C. R. Civ. P. 56)
- Under N.C. Gen. Stat. § 90-321(b), when a declarant has a valid declaration requesting that life not be prolonged by extraordinary means or by artificial nutrition or hydration, such measures may be withheld or discontinued only if (1) the attending physician determines the patient is in a qualifying condition (including terminal and incurable), and (2) a second physician confirms that condition.
- Conflicting evidence about whether the attending physician’s determination was confirmed by a second physician, and whether and when the relevant medical directions were communicated, can create material fact disputes that bar summary judgment.
- When the right to recover fees for continued care depends on contested facts about whether treatment continued after statutory conditions for withdrawal were met, those disputes generally must be resolved by the fact-finder.

## Conclusion

The Court of Appeals reversed summary judgment for the nursing facility because the record contained factual disputes about whether North Carolina’s living-will statute’s conditions for discontinuing artificial nutrition or hydration were satisfied before the NG tube was removed and whether the Center received or knew of an order to remove the tube, disputes that could affect the Center’s entitlement to collect charges incurred after June 26, 1991.


First Healthcare Corp. v. Rettinger, 456 S.E.2d 347 (1995)