Last week an appellate court held that a New York, Niagara County Supreme Court Justice violated the First Amendment rights of a family suing a hospital and physicians for prematurely declaring their father dead and delaying emergent heart surgery for hours. The decedent was brought to an emergency room during a cardiac arrest. A code team was called and he was intubated. Shortly therafter, the decedent was formally pronounced dead by the ER physician who then notified the family and brought them into the code room to view their father. The family alleges that "for the next two hours and 40 minutes, the decedent was breathing, making eye contact and moving around" which prompted them to urge the hospital staff to examine their father but that they refused. When the ER doctor finally relented an examined the decedent, he observed that the family was correct and their father was alive. He was transferred to another hospital where he underwent heart surgery and died.

Apparently embarrassed by these set of facts, when the hospital and ER doctor were sued for delaying treatment (pronouncing someone dead means no treatment) they succeeded in convincing the lower court to enjoin and prohibit the family and their attorney's from alerting the media and general public to what had happened. They argued that a fair trial would be impossible if the public was informed. The appellate court reversed that decision removing the "gag order" explaining: unless there is evidence that less restrictive measures would not assure the defendant's a fair trial, " a court may not impose prior restraints on First Amendment rights." The hospital and ER doctor failed to show that there was no other way to assure them a fair trial. Cleveland v Gregory Perry, M.D., Kaleida Health/Degraff Memorial Hospital, 2019 NY Slip Op 06306