Judge rules out hospital visits for woman

Memorial limits access because of coronavirus

A Broward County judge won’t let a family see their loved one at the hospital — worried that allowing the visits would open a “Pandora’s box to the pandemic” and hurt the hospital’s chances of keeping the new coronavirus away.

Lindsay Kennedy, 38, of Fort Lauderdale, has been at Memorial Regional Hospital in Hollywood since April 21 but not because of the virus. She has struggled with health issues after having an aneurysm more than a decade ago. Kennedy underwent multiple surgeries and was in the intensive care unit.

Kennedy’s husband, Jayson Oneschuk, her mother-in-law, Kathleen Carr, and her younger brother, Andrew Kennedy, sued the hospital, seeking for Kennedy to be allowed a visitor per day.

But for Kennedy to be with her family, the hospital would need to relax its visitation limits and forego “significant infection control and prevention measures,” Circuit Civil Judge Michael Robinson concluded. “Memorial and the other patients in its ICU and hospital could then suffer horrific and catastrophic harm if its visitation policy is found to be improper and cannot be utilized.”

Despite the ruling, the hospital’s lawyer said he is working with the family to allow some visitation access. The details have yet to be ironed out.

Her family’s lawsuit argued that the hospital had allowed other patients to have visits, including a guardian who visited a child, so Kennedy’s family members felt the policy was discriminatory.

Oneschuk said he maintained his position that because the policy allowed a spouse or significant other to be with a delivering mother, he felt he and his family members should be allowed to go in, too. “If you’re so worried about COVID-19, why do they get to go in and we don’t?” Oneschuk said. The lawyer representing the family could not be reached for comment.

But the judge determined there was no evidence Memorial Healthcare System was selectively applying its visitation policy in Kennedy’s case. The judge concluded the hospital wasn’t to blame, but “rather the virulent and highly contagious nature of the COVID-19 virus is the cause.”

Three medical experts spoke at a recent court hearing: Kennedy’s treating doctor and two others who spoke about the hospital’s precautions of restricted visitation, said Frank Rainer, senior vice president and general counsel for Memorial Healthcare System.

Rainer said this case was difficult for Memorial, describing it as a balancing act between what is beneficial for patients and what the hospital deems necessary to prevent the spread of coronavirus. But ultimately, the clinical policies won over the individual patient’s rights.

“Everyone recognizes having visitation, especially with somebody at this level of illness, is quite beneficial. No question about it,” Rainer said. “But when you balance that against the infection control and the COVID issues that come up, the COVID issues just trump that.”

Rainer said in order to justify the hospital’s position, he had to review case law nearly 100 years old from around the time of the 1918 flu pandemic.

“We haven’t had a serious pandemic or epidemic in this country in 60 years,” Rainer said. “So judges have not had to face this before.”

But the scenario is not unique, Rainer said. The issues in this case were ones that repeatedly showed up in the case law from the times when yellow fever, malaria and measles riddled the masses. But Kennedy’s case presents ideas unseen in court for decades.

“The questions of quarantining people and separating people and all that came up,” Rainer said. “And the courts had to regularly deal with the issue of individual rights versus pandemic protection. And those issues were well dealt with 100 years ago.”

The judge also decided it would not be practical to give Kennedy’s family visitation because it raised other questions, such as where they could use the bathroom, what rooms they could enter and whether they could bring food in or use the cafeteria.

“It is not in the public interest for courts to assume and micro-manage the delivery of medical services in a pandemic,” the judge said. “We do not want to open up the proverbial Pandora’s box to the pandemic.”

Rainer said Memorial Healthcare System is maintaining the restricted visitation policies but will examine when and how they could be relaxed.

“We are not convinced that we won’t have a second wave, with all the social distancing relaxation that has gone on,” Rainer said.

COURTESY PHOTO Lindsay Kennedy, right, has been at Memorial Regional Hospital in Hollywood since April 21. Her family sued for visitation.