Health Care

Was woman breathing when plug was pulled?

By Carol Marbin Miller

cmarbin@miamiherald.com

Caroline Francois' husband, Nelson Francois, is seated on the family's couch with son Jerryian, daughter Precious and his youngest child, Caroline.
Caroline Francois' husband, Nelson Francois, is seated on the family's couch with son Jerryian, daughter Precious and his youngest child, Caroline. The Miami Herald

At 7:30 p.m. on July 26, 2006, a neurosurgeon at North Shore Medical Center suggested that the brain of 26-year-old Caroline Francois was no longer working.

A day later, a University of Miami organ procurement coordinator ordered Francois disconnected from a respirator.

What he didn't know, according to a lawsuit: Francois had begun breathing on her own, her family says.

By the time her husband Nelson arrived at the hospital, his wife was already dead.

"They just told me the state of Florida gave them the authorization to do so," said Nelson Francois, who had refused to disconnect his wife's ventilator. "I wanted my wife to live."

Nelson Francois sued North Shore, two nurses and Life Alliance Organ Recovery Agency, which procures organs for UM. Though most of the lawsuit issues have been settled, one remains: Did UM's organ procurement coordinator, Robert D. Kerns, unplug a young woman who was still alive?

The issue may be a novel one in a Florida courtroom.

"It may be something no one has ever attempted to disprove, that somebody was dead under these circumstances," Marc Schleier, a lawyer for UM, said at a February hearing.

The case is scheduled for trial April 12. But at a Feb. 2 hearing, lawyers for the university said Kerns could not have killed Francois because she was technically already dead. A neurologist and neurosurgeon concluded that Caroline Francois no longer had any brain function.

"This is what the state of Florida considers death," lawyer Christopher Knight said.

Schleier said Kerns and the UM are protected by a state law that grants organ procurement groups immunity when they act in good faith.

Kerns no longer works for the transplant agency or lives in Florida. UM officials declined to say how he could be reached.

Carmen Cartaya, an attorney for North Shore, declined to discuss the case, saying the hospital is bound by a confidentiality agreement.

This much is known about the case:

 Caroline Francois, a preschool teacher, was admitted to North Shore on July 24, 2006, to deliver a baby.

But after delivering her daughter, Francois had life-threatening high blood pressure, records show. When her husband, a forklift operator, went to visit, he found her in cardiac care.

 When Nelson Francois returned to his North Miami home, the hospital asked him to return. A doctor told him his wife had suffered a catastrophic brain bleed.

The doctor "told me that Caroline is not alive, is not living anymore . . . for me to call a pastor or priest and the closest members of the family to come and see her for the last time,"  he later testified in a deposition.

The doctor told him the hospital wanted him to sign papers "so they can remove" the ventilator. "They said that in 10 to  15 minutes after I sign, she's dead."

Francois refused.

"I had asked the doctor how long she can remain with the ventilator," Francois testified. "He said it can stay on as long as I want it to stay. I said, if it can remain, leave her with it, and I'll come every day to visit.' "

The next morning, Francois said, he received a startling phone call. A nurse said his wife "woke up again." He rushed to the hospital.

His wife had not woken up. Instead, a nurse handed him papers and asked him to sign. Again Francois refused.

It didn't matter. Francois said he was told his wife had passed away and that the ventilator already had been disconnected.

 The nurse, Francois said, told him the hospital didn't need his consent. "He told me the state of Florida gave them permission to remove the life equipment on my wife," Francois said.

According to Caroline's chart, her husband did not take the news well. "Nurse explained events to family, and husband was disrespectful at times, wearing dark sunglasses.  . . . Refused information for funeral home."

But it wasn't the state that disconnected Caroline Francois's life support, Francois's attorney, Loreen Kreizinger, says. It was Kerns, the UM transplant coordinator.

A notation from Caroline's chart, dated July 27, 2006, at 6:50 p.m. reads: "Patient is pronounced brain dead at 1615 hrs. Please discontinue all treatments, including the ventilator."

It is signed by Kerns.

Though Kerns has denied doing so under oath, Kreizinger says in court documents that a respiratory therapist had been in the room and testified that Kerns disconnected the ventilator himself.

But was Caroline Francois already brain-dead?

Three doctors hired by Kreizinger wrote sworn statements saying she later began taking breaths on her own after an evaluation -- meaning she  could not be declared brain dead.

Caroline Francois "unequivocally was having spontaneous respirations in her attempts to breathe on her own," wrote Dr. Frank J. Bottiglieri, a former teacher at Johns Hopkins University, basing his conclusions on vital-sign records and handwritten respiratory therapy notes.

Schleier, UM's attorney, argued that Francois cannot prove that his wife was breathing before the ventilator was disconnected.

"What Dr. Bottiglieri is looking at is a ventilator flow sheet where there are additional respirations, and he concludes in a speculatory and conclusive manner that these had to have been . . . spontaneous breaths," Schleier said.

Nelson Francois said in a deposition tht he did not question his wife's doctors; he just assumed she was getting proper care.

"I don't know what to say. Only God knows," he said. ". . . And now she's gone."

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