Removal from Death in Florida: Kathy Ann Garcia-Lawson faces the Brave New World


IN THE FIFTEENTH JUDICIAL CIRCUIT COURT IN AND FOR

PALM BEACH COUNTY, FLORIDA

CASE NO:  502009GA000541XXXXSB

IN RE: THE MATTER OF

JOSEPHINE D. GARCIA,

ALLEGEDLY INCAPACITATED

________________________________/

 

KATHY ANN GARCIA-LAWSON’S NOTICE OF

NOTICE OF REMOVAL TO UNITED STATES DISTRICT COURT

TO THE HONORABLE JUDGE MARTIN COLIN OF THIS CIRCUIT COURT:

PROCEED NO FURTHER!

The Respondent in this case has effected removal of this cause to the United States District Court for the Southern District of Florida, Palm Beach Division, pursuant to the provisions of 28 U.S.C. §§1441, 1443(1), and 1446 based simultaneously on the diversity of citizenship of the parties, civil rights for Florida’s denial of equal protection under the law to certain irrationally defined classes of elderly persons and their contractually agreed and designated representatives, and Federal Preemption of the apparent discretion of Florida Judges under and pursuant to Florida Probate Rule 5.900 under the Medicare statutes and regulations implementing the same.

No further action of any kind may be taken in this Florida Fifteenth Judicial Circuit Court until such time (if any) as this case is remanded from the United States District Court for the Southern District of Florida, and any action taken in the state court during any period of removal is an absolute nullity.

WHEREFORE, Respondent respectfully submits the attached Notice of Removal and prays that this Court will take notice of the same and accordingly, and in respect thereof, will take no further action touching upon the life or liberty of Josephine D. Garcia or her daughter and contractually designated attorney-in-fact Kathy Ann Garcia-Lawson.

Respectfully submitted,

 

Tuesday, November 17, 2009

 

By:______________________________________

Dr. Kathy Ann Garcia-Lawson, Ph.D., pro se

2620 Nature’s Way

Palm Beach Gardens, Florida 33410

Telephone: 561-624-8724

Facsimile:      561-691-1423

 

E-Mail: garcialawson@hotmail.com

CERTIFICATE OF FILING AND SERVICE

I, the undersigned Respondent Kathy Ann Garcia-Lawson do hereby certify that I filed an original signed copy of her above-and-foregoing Notice of Notice of Civil Rights Removal on the Honorable Jduge Martin Colin and with the Palm Beach County Clerk of the Fifteenth Judicial Circuit Court and simultaneously served a true and correct copy of the same on each of the following known parties to the above entitled and numbered cause as follows:

 

JUDGE MARTIN COLIN and the

Clerk of 15th Judicial Circuit Court, Palm Beach County

South County Courthouse

200 West Atlantic Avenue

Delray Beach, Florida  33444

 

CAROL J. HEALY GLASGOW, ESQ.

Attorney of Record for

Palm Beach Gardens Medical Center,

SunTrust Center, Sixth Floor,

515 East Las Olas Blvd.

Ft. Lauderdale, FL 33301

 

Donald David Garcia

5047 Magnolia Bay Circle

Palm Beach Gardens, Florida 33418

 

BRIAN M. O’CONNELL, ESQ.

Florida Bar No: 308471

ASHLEY N. GIROLAMO, ESQ.

Florida Bar No: 37495

Casey Ciklin Lubitz Martens & O’Connell

515 N. Flagler Dr., #1800

West Palm Beach, FL 33401

Respectfully signed, submitted, and served on this Tuesday, November 17, 2009.

 

By:______________________________________

Dr. Kathy Ann Garcia-Lawson, Ph.D., pro se

2620 Nature’s Way

Palm Beach Gardens, Florida 33410

Telephone: 561-624-8724

E-Mail: garcialawson@hotmail.com

******************************************************************************************************************************************

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

PALM BEACH DIVISION

 

IN RE: THE MATTER OF

JOSEPHINE D. GARCIA

an allegedly incapacitated person,

 

PALM BEACH GARDENS MEDICAL CENTER

(a Division of Tenet Healthcare Corporation) and

Donald David Garcia,                                                                  CIVIL ACTION NUMBER:

Petitioners,                                                                                      ____________________________________

v.                                                                                                         Removed from a State Action pending in the

THE 15th CIRCUIT COURT IN AND FOR

KATHY ANN GARCIA-LAWSON                                               PALM BEACH COUNTY, FLORIDA

Individually and as Attorney-in-Fact                                          CASE NO:  502009GA000541XXXXSB

For Josephine D. Garcia

Respondent.

______________________________________/                 

 

NOTICE OF REMOVAL

  1. 1. The original Petitioners who filed and caused this civil case (50-2009-GA-000541-XXXX-SB) filed pursuant to Florida Probate Rule 5.900 “Expedited Judicial Intervention Concerning Medical Treatment Procedures” to be served upon the Respondent Kathy Ann Garcia-Lawson, who as attorney-in-fact holds both Durable Power of Attorney and Designated Health Surrogacy for her Mother Josephine D. Garcia, age 82) are PALM BEACH GARDENS MEDICAL CENTER (a Division of Tenet Healthcare Corporation) and Respondent’s brother (and the allegedly incapacitated elder’s mother) Donald David Garcia.  
  2. 2. The purpose of the instant petition filed pursuant to Florida Probate Rule 5.900 is to withhold food and hydration and any sort of active medical treatment from an elderly individual (Josephine D. Garcia) who is breathing on her own, whose blood pressure is normal, heart rate and pulse are regular, and who is in no medical sense comatose, “in any terminal end condition”, or in imminent danger of immediate death, and whose blood sugar and other blood chemistry is essentially normal, albeit she has pancreatic cancer which may or may not have spread to her liver, and has suffered from one or more strokes which may have been induced or aggravated by treatment received while at Palm Beach Gardens Medical Center.
  3. 3. The key facts concerning Respondent’s mother’s health on the day (November 16, 2009) prior to the removal of this case are that she is both “improved since the prior study”, “resolving [her stroke induced] cerebellar hematoma,” and despite her condition shows no necrotic tissue. (See Exhibit A to this Notice).   The key fact concerning Respondent’s mother’s case history is that, had Petitioners’ intentions been fully implemented, to place her in “hospice” care without hydration, nutrition, or medical care of any kind, Respondent’s mother would almost certain have died on November 9-11, 2009.
  4. 4. Removing respondent alleges that she and her mother are being denied equal protection of the laws, in violation of 42 U.S.C. §1981, and in particular are being denied such protection pursuant both to state and federal policies related to Medicare funding requirements that “Living Wills” be given priority effect over both durable powers of attorney and designations of health care surrogacy.
  5. 5. The joint operation of Federal Medicare mandates, Florida Medical Malpractice Statutes, and Florida Wrongful Death (Tort) law are in the Circuit Courts of Florida coordinated in a manner which constitutes an unconstitutional impairment of contract in violation of Article I, Section 10, of the United States Constitution, but further constitutes or effects the taking or impairment of significant life, liberty, and property interests of the Respondent and her mother (including the right to make and enforce private contracts between themselves, such as Durable Powers of Attorney and Designations of Health Care Surrogates in violation of the due process clause of the 5th and 14th Amendments. 
  6. 6. Respondent also alleges that the expedited nature of Florida Probate Rule 5.900 as implemented and applied in the Circuit Courts of Florida does itself operate as an infringement upon both due process of law, equal protection, the First Amendment right to Petition for Redress of Grievances, and the Ninth Amendment reservation of all rights granted to the people, including the right to designate attorneys in fact, health surrogates, and to enforce these rights as superior to government mandated “cost-cutting” measures such as the favoritism applied to living wills.
  7. 7. The legal owner and operator of Palm Beach Gardens Medical Center is Tenet Healthcare Corporation, a foreign corporation with corporate headquarters at 1445 ROSS AVENUE, SUITE 1400, DALLAS, TEXAS 75202.
  8. For purposes of diversity of citizenship 28 U.S.C. §§1332(a) and 1441(a), Donald David Garcia is a citizen of the state of Tennessee, in that Tennessee is the state where he and his wife Leslie own a homestead and to which they have stated their intention to return not later than December 1, 2009, having only temporarily moved to Palm Beach Gardens less than 120 days ago; since Respondent Kathy Ann Garcia-Lawson is a citizen of the state of Florida, there is accordingly complete diversity of jurisdiction and this case is properly removed under 28 U.S.C. §1441(a).
  9. 9. The Petition in this case was filed on or about November 4-5, 2009, and Respondent has appeared and answered the Petition in a timely manner. This Notice of Removal is, accordingly, timely filed pursuant to 28 U.S.C. §1446(b).
  10. 10. In addition, however, or in the alternative, 28 U.S.C. §1443(1) provides that actions may be removed by the defendant to the United States District Court where any civil action is commenced under or subject to any law or state policy having the effect of law which denies equal protection of law. 
  11. 11. Respondent Kathy Ann Garcia-Lawson generally submits that she (as healthcare surrogate and attorney in fact for her mother Josephine Garcia) willbe denied [and] cannot enforce in the courts of [the] State [of Florida their] right[s] under any law[s] providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.”  28 U.S.C. §1443(1).
  12. 12. Specifically, Respondent Kathy Ann Garcia-Lawson submits that under the Florida wrongful death act and Florida’s medical malpractice statutes, to wit, Florida Statutes §§ 768.16-768.26 and Florida Statutes Chapter §766 generally, two discrete and insular, politically powerless, classes of Florida citizens and residents, namely surviving heirs of victims of medical malpractice or wrongful death over the age of 25 and/or heirs of victims of medical malpractice or wrongful death without surviving spouses are denied the equal protection of the law when compared with surviving heirs of victims of medical malpractice or wrongful death with surviving spouses.
  13. 13. There is no constitutionally valid basis for the discrimination between these classes of Florida citizens and residents, the obvious purpose of which is to limit the exposure of doctors to medical malpractice and wrongful death suits brought as a result of medical malpractice resulting in wrongful death to one of Florida’s largest and fastest growing groups of vulnerable residents, namely elderly people.
  14. Palm Beach County Personal Injury attorney Marci Ball has described the coincidence of these laws as in effect creating a “license to kill” elderly widows, widowers, or divorcé(e)s who have no minor children; the size of this target class of individuals who have unequal access to the courts and second class citizenship by diminished protection from mistreatment by hospitals or relatives under the tort laws of the State of Florida is unknown to the undersigned, but is realistically estimated in the range of one to two million people given that the total elder population according to census bureau estimates is over 3,000,000 and it can be expected than only a tiny minority of these will have children under the age of 25 and a significant majority will be widows, widowers, or divorcé(e)s.
  15. In Florida, in short, guardianship and expedited judicial interventions concerning medical treatment procedures (such as Florida Probate Rules §5.900 under which the present action is brought) will more likely than not result in expedited death of elderly patients, as a direct and proximate and therefore legal result of matter of statutory law, custom, practice, and policy.
  16. Removal to Federal Court is also appropriate on grounds of partial or complete pre-emption, in that the Federal Medicare statutes relating to the enforcement of living wills to cut Medicare costs.  These Federal rules effectively require health care providers to choose death over life when faced with a living will, or else risk loss of Medicare coverage, which as a matter of economic reality is a matter of extreme economic duress bordering on mandatory coercion[1].
  17. Respondent Kathy Ann Garcia-Lawson removes to this U.S. District Court for the purpose of challenging the constitutionality of each of the aforementioned state and Federal laws as violative of the 5th and 14th Amendment guarantees of equal protection and due process of law, as well as the statutory mandates of 42 U.S.C. §1981, in that elderly people are more likely to die in hospitals because the heirs of elderly people are clearly denied the equal right to enforce contracts and seek remedies, and have unequal access to the courts for the protection of life, liberty, and property.
  18. Accordingly, respondent files this notice of removal within the 30-day time period required by 28 U.S.C. §§141 9E) 1443(1) and 1446(b) and the notice is therefore timely and removal is proper both pursuant to diversity and civil rights standards of removal under 28 U.S.C. §§1332(a) and 1441(a);
  19. Removing respondent Kathy Ann Garcia-Lawson moves that this Court should hold, as a reasonable extension, modification, or interpretive construction of existing law that the Medicare statutes command (i.e. leave no room for state policy variation or development of alternatives) concerning the enforcement of living wills as a medical alternative decision, so that removal on account of Federal pre-emption is proper uder 28 U.S.C. §1441(b).
  20. Respondent Kathy Ann Garcia-Lawson files this notice of removal in part for the purpose of challenging all the provisions of the Florida and Federal Laws which favor expedited death over life by interfering with the judicial enforcement of contractual relations between private individuals such as durable powers of attorney and medical health surrogacies, by making both of these inferior to Living Wills and other such “pro death” documents and policies, the enforcement of which discriminatory preferences violates not only the 5th and 14th Amendments but also 42 U.S.C. §1981 and, arguably, the 1st and 9th Amendment as well.
  21. Kathy Ann Garcia-Lawson submits in particular that the First Amendment to the Constitution guarantees Freedom of Religion, and forbids the establishment of a State Religion by any State, and that the “Civil” laws mandating “euthanasia” (“license to kill elderly people”, in the words of Marci Ball, quoted above) are in form, force, and effect a form of the direct and proximate result of the state establishment of an Atheistic religion, in that the United States Supreme Court has  “Atheism” is every bit as much as secular humanism (cf., e.g. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680; 6 L.Ed.2d 982[1961], and Kaufman v. McCaughtry, 419 F.3d 678 [7th Cir. 2005]).
  22. Respondent Kathy Ann Garcia-Lawson is the sole original defendant in this particular case, and there are no other parties whose consent is necessary to bring into effect this Notice of Removal.
  23. All required pleadings, process, orders, and other filings in the state court action filed within the past three weeks to 30 days are attached to this notice of removal as required by 28 U.S.C. §1446(b).
  24. Venue is proper in the Southern District of Florida, because (a) Respondent Kathy Ann Garcia Lawson resides within the Southern District of Florida and this case is removed from the Fifteenth Judicial Circuit Court in and for Palm Beach County Florida which exists within the territorial boundaries of the Southern District and finally because all or a substantial part of the events or omissions giving rise to the claim occurred within the Southern District of Florida.
  25. Respondent Kathy Ann Garcia-Lawson has appeared and answered in the 15th Judicial Circuit Court and a copy of her answer and other documents are presented as supplements to this Notice of Civil Rights Removal to the United States District Court for the Southern District of Florida.
  26. Defendant will promptly file a copy of this notice of removal with the clerk of the state court in the Fifteenth Judicial Circuit in and for Palm Beach County where the action was originally filed and has been pending.
  27. For all the above-and-foregoing reasons, removal of this action from 15th Judicial Circuit Court in and for Palm Beach County, Florida, to the United States District Court for the Southern District of Florida, Palm Beach County Division, is proper pursuant to all relevant statutes and law.

WHEREFORE, removing Respondent Kathy Ann Garcia-Lawson, individually and as attorney-in-fact for her mother, Josephine D. Garcia, prays that this court will take note of this case, will allow the filing of amended answers and counterclaims such as may be necessary to put the constitutional issues raised in this notice, among others, at issue.  And having so fully and properly framed the issues, Respondent prays that the United States District Court will set this case for trial-by-jury as to all issues of fact and all mixed questions of law and fact, according to common law and the Seventh Amendment to the Constitution of the United States.  Upon which trial-by-jury, demand for which is hereby now and formally made, Respondent prays that the Court will deny to the Petitioners and the State of Florida any right to control the decisionmaking power contractually conferred on Respondent Kathy Ann Garcia-Lawson by her mother Josephine D. Garcia, and that this Court will thereupon award final judgment for Respondents.

Respectfully submitted,

 

Tuesday, November 17, 2009

 

By:______________________________________

Dr. Kathy Ann Garcia-Lawson, Ph.D., pro se

2620 Nature’s Way

Palm Beach Gardens, Florida 33410

Telephone: 561-624-8724

Facsimile:          561-691-1423

 

E-Mail: garcialawson@hotmail.com


CERTIFICATE OF FILING AND SERVICE

I, the undersigned Respondent Kathy Ann Garcia-Lawson do hereby certify that I filed an original signed copy of the above-and-foregoing Notice of Civil Rights Removal on the Honorable Jduge Martin Colin and with the Palm Beach County Clerk of the Fifteenth Judicial Circuit Court and simultaneously served a true and correct copy of the same on each of the following known parties to the above entitled and numbered cause as follows:

 

JUDGE MARTIN COLIN and the

Clerk of 15th Judicial Circuit Court, Palm Beach County

South County Courthouse

200 West Atlantic Avenue

Delray Beach, Florida  33444

 

CAROL J. HEALY GLASGOW, ESQ.

Attorney of Record for

Palm Beach Gardens Medical Center,

SunTrust Center, Sixth Floor,

515 East Las Olas Blvd.

Ft. Lauderdale, FL 33301

 

Donald David Garcia

5047 Magnolia Bay Circle

Palm Beach Gardens, Florida 33418

 

BRIAN M. O’CONNELL, ESQ.

Florida Bar No: 308471

ASHLEY N. GIROLAMO, ESQ.

Florida Bar No: 37495

Casey Ciklin Lubitz Martens & O’Connell

515 N. Flagler Dr., #1800

West Palm Beach, FL 33401

Respectfully signed, submitted, and served on Tuesday, November 17, 2009

 

By:______________________________________

Dr. Kathy Ann Garcia-Lawson, Ph.D., pro se

2620 Nature’s Way

Palm Beach Gardens, Florida 33410

Telephone: 561-624-8724

E-Mail: garcialawson@hotmail.com

 

Exhibit A:

Results of November 16, 2009,

Cat Scan of

Josephine D. Garcia

 

 

Appendix:

State Circuit Court Records

Filed

IN THE 15th CIRCUIT COURT IN AND FOR

PALM BEACH COUNTY, FLORIDA

CASE NO:  502009GA000541XXXXSB

 

 


[1] 1) The first federal law about death decision making, the Patient Self-Determination Act of 1990 (contained in Sections 4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990, P.L. 101-508, 42 U.S.C.A.§§1395cc & 1396a [West Supp. 1991]) took effect on December 1, 1991. All hospitals, nursing homes, home health agencies, and hospice programs receiving federal Medicare and Medicaid are now required to create formal procedures that provide written information at admission to patients about decision making and treatment refusal rights in their health care. The law also says that patient advance directives will be respected. Noncompliance will mean a loss of Medicaid and Medicare funds.  http://bioethics.georgetown.edu/publications/scopenotes/sn2.pdf.

One response to “Removal from Death in Florida: Kathy Ann Garcia-Lawson faces the Brave New World

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