Something to be Mad About

Monday, October 19, 2009
Updated 10/19/2009 11:50 a.m.: Please read the comments for a very salient synopsis of the court's decision as presented by regular commenter and UCFer Eric. While he's not a civil attorney, he is an attorney and his analysis is pertinent. He rightly points out where I was talking out of my ass in regards to my claim that the court found the discrimination against the gay couple in question "legal." Thanks for your thoughts, Eric.
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You know, I'm a big proponent of civil rights. Our country was founded on them, and I spent a good portion of my adult life serving the document that protects them.

So when I hear about circumstances where people's civil rights have been violated, it angers me. When I find out that the violation in question has been deemed "legal" by the federal court system, it enrages me.

Really, America? Really? Denying people the right to be a legal part of a legal family is the legacy we want? What the hell is wrong with us?

I really hope the answer isn't that we're bigoted asshats with no sense of justice and fairness. Because if that's true, it cheapens my service, and makes me feel dirty.

This week, Washington state will be voting on Referendum 71, which asks voters to reconfirm expanded domestic partnership rights which were signed into law in May, 2009. If you live in Washington state, please consider voting "yes" on this important legislation. If you don't, please continue to spread the word, or donate to the cause.

Our society's apparent inability to see this for what it is shames me. Our blatant discrimination against gay and lesbian families sickens me. Let's fix this.


Wave of the Blood Pressure Cuff to Dr. Phil and Tania via Facebook.

7 comments:

Cindi in CO said...

Okay, that is just horribly sad and unjust. How can anyone read that account and say, "Oh well, good enough for them thar gays I guess."? Huh?! What the HELL is wrong with people anyway?!

Crap, now my blood pressure is up.

Thanks.

Steve Buchheit said...

I think I'm getting one of those flattened foreheads like the Maya use to do to their children from all the head desking in the past few years.

Eric said...

This is an example of why I try to read a court opinion before getting my outrage on. The Federal court did not deem it legal that the Langbehn-Ponds' rights were violated, nor is it clear that their civil rights were violated. It is worth noting that what the court actually said in conclusion was:

If the plaintiffs’ allegations are true, which I assume that they are when deciding the defendants’ 12(b)(6) motion to dismiss, 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 defendants’ failure to provide Ms. Langbehn and her children frequent updates on Ms. Pond’s status, to allow Ms. Langbehn and her children to visit Ms. Pond after emergency medical care ceased; to inform Ms. Langbehn that Ms. Pond had been transferred to the intensive care unit, and to provide Ms. Langbehn Ms. Pond’s medical records as she requested, exhibited a lack of compassion and was unbecoming of a renowned trauma center like Ryder. Unfortunately, no relief is available for these failures based on the allegations plead in the amended complaint.

If the plaintiffs want to file a second amended complaint, they must do so by October 16, 2009. If no second amended complaint is filed, this case will be closed.


The opinion can be read in full here, at the Langbehn-Ponds' website.

A few salient issues:

*In a MTD, the court looks at the case in the light most favorable to the plaintiff. The judge in the L-Ps' case therefore assumed all of Ms. Langbehn's claims to be true.

*The court concluded that some claims were barred as a matter of Florida law because the doctors involved have statutory immunity to suit--a point that plaintiffs evidently conceded at argument.

*The court made reference to the legal obligations due to spouses and children in "traditional" marriages--i.e. the court effectively treated Ms. Langbehn as Ms. Pond's spouse based on the legal power-of-attorney eventually provided to the hospital, and found that in similar cases a physician would have no additional duties to a husband or children.

*While one wishes the hospital had provided additional updates or behaved more decently, it appears that plaintiffs concede the hospital kept Ms. Langbehn apprised of Ms. Pond's condition.

*Other counts were dismissed for failure to establish a duty, and others dismissed for failure to establish an injury incurring liability, that is, for example, the plaintiffs appear to have failed to state in their initial complaint what harm was suffered by the children due to defendants' alleged conduct.

(cont.)

Eric said...

(cont.)

*Several counts were dismissed without prejudice, meaning that some of the Langbehn-Ponds' claims can be refiled so long as they properly state a claim for which relief can be sought. E.g. it is not enough in Florida for a claim for Intentional Infliction Of Emotional Distress to be based on merely insulting behavior (this is probably a good thing--I'd be pauperized if someone could sue me for boorishness), but the Federal court gave the Langbehn-Ponds leave to re-file a claim for IIED if they can expand their allegations.

The bottom line is that the court decision is not a ratification of homophobia or a strike against same-sex marriages. It's an application of existing tort law, and I don't see anything orignal or egregious in it. Indeed, the decision proceeds from the assumption that Ms. Langbehn had certain rights pertaining to her late wife, whether they originated in a power-of-attorney or in a legally-sanctioned marriage, and appears to hold Ms. Langbehn's claims to the same standard of scrutiny as any other similar case involving a straight couple. (I will certainly concede, however, that I do not practice civil law nor am I licensed in Florida; it may be that there is some nuance or contrary Florida caselaw that the judge ignores--in such a case, anger at the court might be justified indeed.)

All of that said, the Florida hospital's conduct appears, as the Federal judge said, to have been insensitive. And the conduct of the social worker, Frederick, is utterly appalling. Even if one were to concede him entitlement to homophobic opinions, expressing those opinions to a frightened person accompanied by small children, frantic to hear any bit of news of a loved one is utterly appalling, inhumane, reprehensible conduct and I would hope Florida Social Services "encourages" him to find new employment in a field in which compassion is optional.

And, furthermore, the larger point--support of Referendum 71 and allied issues--is important and consequential, and should be encouraged. If you live in Washington state, please vote to affirm domestic partnership rights.

But let's also focus our anger where it needs to be directed.

(Sorry for the double comment; I got tired of trying to edit down.)

Janiece said...

Thanks for your thoughts, Eric. I've modified the post to point readers to your analysis.

nzforme said...

Thought I'd drop by and say hello -- didn't imagine that you'd have a legal issue here. (Which is kinda what I deal with for a living. Although not in Florida. This Is Not Legal Advice, YMMV, etc.) I agree with Eric's analysis. I think the key to this case (and whether the opinion is or is not something to be outraged about) is the IIED analysis. As the court said, what you need for a claim of intentional infliction of emotional distress is "conduct 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'"

And THAT's what it comes down to. I, as a human being (not a lawyer), look at what happened to this family (particularly the behavior of the social worker) and say, "yes, that's utterly intolerable in a civilized society." As a lawyer, I want to run right out and see if any court, anywhere, has ever ruled on whether a similar fact scenario would support a claim for IIED with a traditionally married hetero couple. (The closest thing this judge cites is the common law spouse of a dying man IN PRISON being denied visitation -- the distinguishing factor, of course, being that we tend to restrict access to prisoners.)

But that's what it comes down to. Unless there's a case showing that it IS "utterly intolerable in a civilized society" to deny visitation to a terminal patient's hetero spouse, there's no reason to conclude this judge ratified the discriminatory conduct. He just said it isn't outrageous ENOUGH to state a cause of action for any couple.

Janiece said...

Welcome, nzforme.

As I noted over on Treadmill, I appreciate it when better informed people gently spank me when I talk out of my ass.

Even though this is a hot button issue for me, I can recognize when I indulge in a knee jerk reaction.

Thanks very much for your thoughts!