Hickman Lowder

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Can I Trust That Life or Death Decision?

| Mar 29, 2016 | Elder Law

For years, I have been helping people complete durable powers of attorney for healthcare, living wills, and do-not-resuscitate (DNR) orders. Collectively, these documents are called “advance directives.” They give directions about the care desired in advance of the need for that care. Advance directives allow you to select whether or not you want your healthcare providers to stop giving you “life-sustaining treatment” when you are in a “permanently unconscious state” or a “terminal condition.” Additionally, a living will and a DNR order allows you to tell healthcare providers and emergency medical service providers that you do not want to have CPR given to you in those cases when your heart has stopped beating (cardiac arrest).

Inevitably these questions come up during my discussions with people about their advanced directives: “What if my health care providers are making a mistake?” “How can someone stop a mistake from being made?” The answer is that there are checks and balances built into the laws that control how your advance directives operate. Let me explain.

First, I think it’s important to make sure you understand the meaning of some of the terms in your advance directives. A “permanently unconscious state” means, that to a reasonable degree of medical certainty, determined using reasonable medical standards, your doctor and one other doctor who has examined you, determine that you are irreversibly unaware of your environment and you have a total loss of cerebral functioning. In a permanently unconscious state you have no capacity for pain or suffering.

A “terminal condition” means you have an irreversible, incurable, and untreatable condition caused by disease, illness, or injury, and that to a reasonable degree of medical certainty using reasonable medical standards, your doctor and one other doctor who has examined you determine that you will not recover, and that your death is likely to occur soon if life-sustaining treatment is stopped.

“Life-sustaining treatment” means any medical procedure, treatment, intervention, or other measure that will be used to prolong the process of dying. Note that life-sustaining treatment only includes medical treatment related to the terminal condition causing your death. It does not include other routine medical treatments. Your doctors will not simply stop all medical treatments. If you have a terminal condition and you fall and break a bone, that injury will still be treated.

One of the most important things that you are doing in your advance directives is telling medical professionals that you don’t want life-sustaining treatment when you are permanently unconscious or in a terminal condition. Additionally, you must affirmatively state that you do not wish to have nutrition and hydration (e.g. a feeding tube) if you are in that condition, and that you do not wish to have CPR performed on you if your heart stops. The mechanism by which your advance directives provide a check against errors is that they require medical professionals to contact the people you name in the event a decision is made to withhold life-sustaining treatment or nutrition and hydration. (However, a DNR order operates immediately upon cardiac arrest and so there is no opportunity to turn back from that decision once it has been made.)

Your doctor is required to record your living will in your medical file. Additionally, if your doctor determines that life-sustaining treatment or nutrition and hydration should end, your doctor must make a good faith effort using reasonable diligence to contact the people identified in your living will. The people you choose as contacts in your advance directives are given a very specific responsibility if they believe a mistake is being made and that your doctor’s determinations are incorrect or that your intention for withdrawal of treatment aren’t being followed. They have 48 hours to tell the doctor that they disagree with the decision. Within two business days after that, they must file a complaint (a lawsuit) in the probate court in the county which you are located at the time your advance directive is being used. If your contacts do not file the complaint in the probate court, their objection is ignored and your advance directive is followed according to how it is written.

The probate court can overturn the decision of your doctor for the following reasons:

  • You are not in a terminal condition or permanently unconscious.
  • You are able to make informed decisions (in whatever manner) about your health care.
  • You are likely to regain consciousness.
  • The action being taken by your doctors is not authorized by your advance directives.
  • You were not a sound mind or were under undue influence on your advance directives were signed.
  • Your advance directives are legally defective.

Next, you might wonder what happens if the doctor cannot reach the people you’ve asked her to contact. For example, what happens if the people you told your doctor to contact have died? The law provides a priority list of people to contact in this circumstance. In the following order, healthcare professionals must contact: your guardian, your spouse, your adult children, your parents, or your adult siblings (or majority of them). Healthcare professionals must make good faith efforts using reasonable diligence to contact people in that order. They are not allowed to skip between people on the list. Any failure to make contact must be noted in your medical file.

The priority list of contacts ensures that there is always someone who can oversee your doctor decisions, but that’s not all. The person contacted has a right to object to the decisions made by your healthcare providers, and so does any person who is next in line of priority to that person. So even if the people you name as contacts do not object, other people may have the right to object instead. All objections must be made according to the procedures described above.

It should give you additional peace of mind to know that you may revoke a living will at any time in any way by advising your doctor. You can also advise other people that you want to revoke your living will and tell them to let your doctor know. Your doctor is allowed to rely on what they say. You are not required to put your revocation in writing (although it may be wise to do so).

You can make your intentions about withholding CPR known in your living will. You can also do so by using a bracelet, necklace, or wallet card approved by the Ohio Department of Health. If you have a DNR order using these devices, you can revoke that by destroying the wallet card or removing the necklace or bracelet. If you revoke a living will, it revokes the DNR order contained in that living will.

The decision to let healthcare professionals know in advance that you do not want life-sustaining treatment or CPR is an intensely personal, and sometimes, spiritual decision. It should not be taken lightly. It is a decision that you should discuss with your family members and other advisors. Once you complete your advance directives you should make sure others know. If there is something in your life that causes you to change your mind about withholding life-sustaining treatment, you should make that known others as soon as possible. If instead you are afraid that someone may make a mistake and no one will be there to stop it, you should be sure to name reliable contact people who understand your wishes. In the unlikely event that there is disagreement about withholding life-sustaining treatment, the law gives those people plenty of tools to use to protect your interests.