Associate Editor

Israel Neustadter, a 91-year-old Holocaust survivor from Silver Spring, was rushed to the emergency room at nearby Holy Cross Hospital in March 2003, where he was diagnosed with pneumonia, dementia and other age-related maladies.

He died 17 days later -- the victim of more than simply old age, according to his son, Alexander, who has alleged in an ongoing legal battle that medical malpractice was largely to blame.

Moreover, the attending physicians violated his father's constitutional right to religious freedom and then lied to cover up their actions, Neustadter charged in court papers and other official documents, which have been vigorously disputed by Holy Cross.

"It became the theater of the absurd," Neustadter, 52, an Orthodox Jew, like his late father, said in an interview with WJW last week, shortly after an appellate court ruling in the case.

That decision, which held the hospital blameless, is an outgrowth of a lawsuit Neustadter filed in mid-2006 in which he alleged that the intensive-care physicians at Holy Cross "effectively euthanized" his father by illegally withholding "life-sustaining medical treatment" that he had requested on the elder Neustadter's behalf.

Being a Holocaust survivor, Israel Neustadter "valued every minute of life" and his "religious practices as an Orthodox Jew emphasized this core value," his son said in a legal brief filed earlier this year. The attending physicians, he said, "were hostile to these values" and acted accordingly.

Maintaining its innocence throughout the dispute, Holy Cross has prevailed before a state administrative panel, a Montgomery County Circuit Court jury and an appellate court. The most recent ruling in favor of the hospital was handed down Oct. 21 by the Court of Special Appeals of Maryland; however, an appeal of that finding is expected.

Asked to comment on the case, David Levin, the attorney representing Holy Cross, said: "Mr. Neustadter has a great deal of emotional involvement in the case. I don't think he can look at it dispassionately."

In ruling for Holy Cross, the courts also rejected Neustadter's claim that his own right to religious freedom had been breached when a Montgomery County Circuit Court judge refused to reschedule the two-day portion of the trial on the malpractice case that was set to take place in early June 2008 during the holiday of Shavuot.

Due to his religious beliefs (as embodied in Halacha, or Jewish law), Neustadter said he was unable to appear in court during Shavuot or even have his attorney, also a Jew, attend on his behalf.

"The absence of Neustadter and his lawyer for these two critical days of defense testimony virtually dictated the result of the trial in favor of Holy Cross Hospital," stated an appellate brief filed in February.

A trial date of June 3 had been set during a Jan. 24 pretrial conference. But when Neustadter realized shortly afterward that the arrangement might conflict with Shavuot (June 9 and 10, according to Orthodox practice), he directed his attorney, Ronald Jarashow, to request a suspension of the trial for those two days.

Jarashow soon raised the issue with the opposing side, but he did not attempt to contact the presiding judge in the case until May 1, about a month before the scheduled start of the trial, according to court records. Jarashow could not be reached for comment.

The judge, Louise Scrivener, ultimately refused to suspend the trial, noting that the case had already been rescheduled once and that witnesses and others might be severely inconvenienced if proceedings were again delayed.

"I cannot ... hold up jurors for an extra two days because of something that was not brought to our attention," Scrivener said during a May 14 hearing, adding: "[There] is by no means any intention or desire to affect Mr. Neustadter's religious observance."

"Quite frankly, my attorney dropped the ball," Neustadter, who lived with his father, said in an interview, adding that he is contemplating legal malpractice action against Jarashow.

Rockville attorney Stephen Mercer, who has handled appellate matters for Neustadter (along with attorney Rene Sandler, also based in Rockville), said in response to the judge's ruling that "witness convenience should never should outweigh a fundamental constitutional right," such as the right to appear in court to address a pressing legal matter. "I find that offensive."

Nearly three years after his father died (of respiratory failure), Neustadter filed a complaint with the Maryland Board of Physicians, the state agency that licenses doctors and other health care providers.

In it, he accused four of the doctors who had treated his father of "very serious ethical and medical breaches" of acceptable standards of care apparently stemming from a culture clash over how aggressively the patient should be treated.

When Neustadter's condition worsened within days of his arrival at Holy Cross, he was intubated, a procedure involving the placement of a tube into the patient's windpipe so the individual can be hooked up to a breathing machine or can have secretions removed from the lungs.

Once he showed temporary signs of improvement, the tube was removed. Acting in accordance with Orthodox legal positions, which generally advocate aggressive life-sustaining treatment, Neustadter later insisted that his father again be intubated, but his demand was refused, he reported.

"In effect," Neustadter wrote in his MBP complaint, "the doctors decided that their dim view of the prognosis superseded their patient's desire to stay alive as long as possible, and his 'unrealistic' son's desire to keep him alive."

(State law prohibits a doctor from withholding or withdrawing life-supporting treatment unless two qualifying physicians certify that the patient is terminally ill or in a persistent vegetative state -- and such certification is absent from the record in this case, according to legal papers filed by Neustadter.)

The hospital records show, the MBP complaint continues, that the doctors were "not only well aware of our religious orientation, but equally aware of the chasm between my desire for treatment and their view on the matter."

The records falsely state, Neustadter added, that he had refused life-sustaining treatment for his father, when in fact he had demanded it.

The evidence clearly shows, Neustadter said in his complaint, that "these doctors broke the law, disobeyed what they knew to be my father's wishes and lied to hide their actions. They also demonstrate the doctors' troubling reluctance to aggressively treat an elderly man, even a relatively healthy one."

He added, in closing: "My father was tested early in life in the Nazi death camps, in ways we cannot begin to comprehend, yet chose to embrace his religion in the most uncompromising way. Is there anyone who earned the right to fight for his life, on his terms and in accordance with his beliefs, more than Israel Neustadter?"

The complaint was dismissed on Sept. 20, 2006, in part because it "did not meet the standard of proof required by law," according to the MBP, an arm of the Maryland Department of Health and Mental Hygiene.

Three days earlier, Neustadter had filed suit in Montgomery County Circuit Court, alleging negligence in the treatment of his father. A verdict in Holy Cross' favor was returned after an eight-day jury trial. (Prior to the trial, Neustadter had settled with a physician who had treated his father and with that physician's group medical practice.)

In its Oct. 21 ruling, the Court of Special Appeals of Maryland (the state's second-highest court) absolved Holy Cross of negligence, since the attending physicians "were not apparent agents of the hospital." The verdict therefore did not address the conduct of the doctors in question.

In addition, the appeals court rejected Neustadter's contention that the hospital had violated its own policy for resolving grievances regarding patient care.