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Editor's response
Hi. Not sure what you are looking for. If you have some question about the law of advanced directives in MA, I might be able to help.
Hello again and thanks for
Hello again and thanks for the offer of help,
What I'm looking for is examples of difficulties that advanced directives have created. I imagine that they could be of a medical, legal, health care agent, or even family variety. As an example: Having a terminally ill Catholic patient in a Catholic hospital where a policy might go against an advanced directive because the hospitals policy might be in favor of starting and maintaining artificial hydration and nutrition. Does this clarify what I'm looking for?
Editor's response
Well, assuming we both agree that proxies are a good thing (allowing people to make decisions about how they are treated, or not, after they are no longer able to communicate their wishes), I don't think advanced directives cause problems. The effectiveness of an advanced directive (I do not know where you are writing from, but in MA the key document is called a health care proxy) depends in large part on communication. For that, see our Ten Things You Should Know About Healthcare Proxies in the Quick Info Library under Estate Planning.
If the state's enabling statute is well written, and MA's is pretty well done, it will address other potential issues. Such as, what happens if the doctor or the hospital refuses to cooperate with the healthcare agent in carrying out the wishes of the patient? Here are some highlights from MA General Laws Chapter 201D:
The doctor and the hospital can presume (and base their decisions on that presumption) that every Proxy has been properly executed, unless a court determines otherwise. (Mass. Gen. L. ch. 201D § 2.)
The Agent has the right to review the Principal’s records and be informed about the Principal’s condition, and the authority to make any health care decision that the Principal could make if competent, including decisions about life sustaining treatment. (Mass. Gen. L. ch. 201D § 5.) And, as will be discussed in Part II, Chapter 2, the federal Health Insurance Portability and Accountability Act (HIPAA) does not limit the Agent’s rights or powers. Doctors are permitted and obligated to share medical information with an incapacitated patient’s “personal representative,” a generic term that includes the patient’s Health Care Agent.
Unless the Proxy or a court says otherwise, the Agent’s decision should be treated as though it were made by the Principal and takes precedence over the position of other family members or persons acting pursuant to a durable power of attorney. (Mass. Gen. L. ch. 201D § 5.)
Neither the doctor, nor the facility, will be subject to criminal or civil liability, or deemed guilty of engaging in unprofessional conduct, as a result of carrying out in good faith the decision of the Agent. (Mass. Gen. L. ch. 201D § 8.)
While the doctor is free to refuse to honor the Agent’s decision on moral grounds, the Proxy Law requires the doctor to first determine that he would also refuse the decision if it where made by the Principal. (Mass. Gen. L. ch. 201D §§ 5 and 14.)
Finally, the law allows a doctor or a hospital to refuse to honor an Agent’s decision if it is contrary to his moral or religious views or to the hospital's policies. However, the physician and the hospital must then help the Agent transfer the patient into the care of another doctor in the same, or in an equivalent facility, who will honor the Agent’s decision.
Good luck, and tell your friends about the Forum.
forged health-care proxy
my wife suffered a devastating illness in may 2011, upon transferring wife from one hospital into a second Massachusetts hospital, a health care proxy was hand carried into 2nd hospital. The healthcare proxy was not wife's signature and husband was denied rights as husband even though they were never separated and there as never been any domestic disputes or 209a. After 3 months in hospital, she went to rehab center who released her to her husband on july 18,she was released with medications which did not work and a uti, husband brought wife to her pcp who prescribed the wrong medication to treat uti, two days later pcp mgh revere phoned husband with new medication apologizing for error in treatment. as a result on treatment being too late wife ended up very ill and experienced kidney damage. now wife is medically able to return home, pcp attempted to blame home care husband,vna and three therapists for wife's illness and insists on wife returning to rehab even though rehab can be done at home. The second hospital's lawyers are holding wife hostage, husband wants to take wife home, atty are attempting to assist niece who illegally signed wife's name to hcp and hcp's mother appointed guardian to prevent potential lawsuit against second hospital. Do you know any lawyers who want to take case on contingency basis?
advanced directives
Sorry about your situation. You could try contacting a MA medical malpractice attorney to deal with negligence issue. Perhaps he or she could also help you with the immediate problem of challenging the health care proxy and regaining control of your wife's medical care. If that does not work, and your income in insufficient to hire an attorney, try contacting a legal aid organization such as http://www.masslegalhelp.org/ Good luck.