Three documents that you should have in place today, and certainly before you go into a hospital
Protect yourself and your family from unnecessary risk in case you are incapacitated
I recently spoke with the aunt of a 50-year-old woman who is currently on life support at a major hospital in the Texas Medical Center, in Houston.
As an experienced medical malpractice lawyer, I get calls like this all the time. Sadly, this is one of those times when there is nothing that we can do to help because the poor lady who is now unconscious did not plan ahead for something like this.
To protect her confidentiality, I will call this patient Debbie in this article, although that is not her real name.
It is hard to believe that Debbie’s problems began with a simple sore throat.
Debbie went to an urgent care facility where they diagnosed her with peritonsillar abscess, which is a collection of pus that forms near one of the tonsils in the back of the throat. Common signs and symptoms include a sore throat that is more severe on the infected side, ear pain on the infected side, neck pain, fever, and a change in the voice.
The urgent care gave Debbie some antibiotics and discharged her. Two days later, her pain got worse so she went back to have a CT scan of her head. While Debbie was in the CT scanner, she started having problems breathing. By the time they got her out of the CT machine, she had stopped breathing and her heart had stopped.
After about 45 minutes of CPR, they were able to get her heart beating again. Shortly after that, Debbie was transferred to the big academic hospital in the Texas Medical Center, where doctors told her extended family that she was brain dead. Now the hospital is urging them to “pull the plug” because they believe that further care would be medically futile.
The Texas law for pulling the plug will scare you to death
By far, Texas has the worst law in America when it comes to end-of-life care. It was signed into law by Gov. George W. Bush, in 1999, and is called the Advance Directives Act.
I have testified in Austin on a number of occasions, before both the House of Representatives and Senate, in favor of legislation that would fix the flawed law. So far, though, the politicians have done nothing, caving into the demands of the well-funded hospital and medical lobbyists.
I think this law is so terrible that I made a special website about it, which explains step-by-step how it gives hospitals virtually unchecked powers to end a patient’s life. That article is comprehensive, but I will cover the high points here.
With 48 hours’ notice, a hospital can convene a medical ethics committee that has the legal right to terminate food, water, and health care for any patient, if it deems that further care would be medically futile. Once the committee makes that decision, the patient and family have 10 days to transfer the patient to another facility. Otherwise, the hospital can pull the plug, even when the patient and family are 100% opposed to it.
If the hospital committee follows the Advance Directives Act procedure, everyone involved with the process is exempt from civil suit, licensure investigation, and criminal prosecution. That sure sounds like a real-life death panel to me.
Unfortunately for Debbie and her family, I think they will be facing one of these committees in the near future.
How to protect yourself
The best time to protect yourself is before you are in the hospital.
Any time that you are in pain and seeking medical care, it is hard to give your attention to legal and other matters. In addition, though, sometimes hospitalized patients are unconscious or are so medicated that they are not mentally able to make decisions and sign documents. In order to legally sign and execute any document, a person has to be of sound mind.
There are three crucial documents that I recommend that everyone should have. These are serious documents and I do not recommend the risk that goes with trying to do it yourself or going with something online or out of a box at a store. Hire an attorney to make sure they are drafted correctly. Once you have them in place, be sure that your family members know where they are.
The first document is a Medical Power of Attorney. This important document designates who you want to be in charge of your health care decisions when you are unable to do so. The individuals named as agents in your Medical Power of Attorney have the same authority to make health care decisions that you do.
The second document is an Advance Directive. In this document, you state your decisions about potential future medical treatment now, in case you are unable to make your wishes known because of an injury or illness.
Although hospitals and doctors can ignore a Medical Power of Attorney or Advance Directive by going through the medical ethics committee process, in my experience they are very hesitant to do so. Most health care providers respect a written document signed by the patient before an illness, probably because it reflects the patient’s calm thinking and decisions made before the pain and illness began.
The final document is a Durable Power of Attorney. This legal document designated an agent who can make legal, financial, and banking decisions for you, when you are incapacitated.
The Durable Power of Attorney is an extremely practical document when someone is unconscious and incapacitated. I have represented a number of married clients where each spouse maintained separate bank accounts for financial or tax reasons. Consider this example. Let’s say that a husband is incapacitated in the hospital and has his earnings directly deposited into a separate checking account, on which he is the only signer. His wife cannot gain access to those funds—even to pay for his health care and household expenses—without a Durable Power of Attorney.
Going back to Debbie’s case, which we discussed above, if she had a Medical Power of Attorney in place, her aunt could step in and make treatment decisions for her. If she had a Durable Power of Attorney, her aunt could hire Painter Law Firm to represent her in resisting the hospital’s efforts to terminate life support, and even to investigate a potential medical malpractice case.
Unfortunately, many people wait until it is too late to do this planning. No attorney can help you get a Medical Power of Attorney, Advance Directive, or Durable Power of Attorney for a loved one, if that person is unconscious or incapacitated. The time to act is now.
Painter Law Firm’s experienced medical malpractice attorneys can help you get these key documents in place. Call 281-580-8800 for a free consultation.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
A physician has to supervise the care and prescriptions of nurse practitioners and physician assistants under written, signed agreements [...]read more
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes [...]read more
A physician has to supervise the care and prescriptions of nurse practitioners and physician assistants under written, signed agreements
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes
This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine
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