Next week will likely mark a key turning point in the legal fight over who makes healthcare decisions for 92-year-old media mogul Sumner Redstone.
In advance of a hearing on Monday, attorneys for Redstone and his ex-companion Manuela Herzer are sharpening their arguments concerning her petition made last November to be reappointed his healthcare agent. Given the individuals involved — including side players such as Viacom chairman Philippe Dauman, who replaced Herzer as the healthcare agent, and Shari Redstone, who stands to become a central figure in the Redstone company that owns Viacom and CBS — it’s easy to forget this case involves a subject matter, geriatric care, that typically receives very little attention in the media. The fight over Redstone’s future has been distracted by salacious allegations of the motivations of those with a stake in the outcome, but will largely turn on the basic questions of whether Redstone had capacity to execute an advance healthcare directive, whether he was unduly influenced, and whose opinion on the subject is most essential.
Time to get wonky.
Late Thursday, Redstone’s attorneys zeroed in on Section 4768 of California Probate Code, which provides that the “court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the patient … .”
Pierce O’Donnell and Bert Fields, representing Herzer, are arguing that the language above only means that a judge is entitled to reject a petition if it has been brought in the wrong forum, that it doesn’t confer a judge the broad power to dismiss a petition “based on a determination of its merits without any opportunity for development of the evidence.”
Gabrielle Vidal, leading the charge for Redstone, objects to this reading of the code’s “plain language.”
Next, there is a quarrel over whether the opinions of Redstone’s primary physician, Dr. Richard Gold, are dispositive or whether the case should move to trial to hear other medical expert testimony.
Vidal points to a section of law, which provides, “Unless otherwise specified in a written advance health care directive … a determination that a patient lacks or has recovered capacity … shall be made by the primary physician.”
The attorney says the statute is “unequivocal,” as is Dr. Gold’s judgment that Redstone has capacity.
Not so fast, argue Herzer’s attorneys, who say the law does not grant Dr. Gold absolute deference, that courts have the power to determine whether a patient has capacity to make healthcare decisions and, specifically, can review a decision to activate or not activate a healthcare directive. O’Donnell writes that a “radical delegation of power to doctors would lead to absurd and unjust results.”
Redstone’s lawyers respond, “Under Ms. Herzer’s interpretation of the Health Care Decisions Law, any petitioner armed with a paid expert could force a burdensome trial. Her position would set a dangerous precedent.”
On Monday, all this will be debated — not the some $50 million that Herzer was set to inherit before she was kicked out of Redstone’s home, not whether the SEC should investigate Viacom executives over what they did or didn’t say about Redstone’s mental condition, and not whether Redstone’s trust is going to immediately kick in and hand the keys to the empire to Shari, Dauman and various lawyers. The courtroom arguments aren’t quite as entertaining. The discussion — and result: trial or appeal — potentially impacts family feuding over the future late-term care of elderly Californians. Keep that in mind.