You may be surprised to learn that every medical study ever conducted has concluded that 100% of all Americans will eventually die. What is unfortunate is that 18 to 20% of Americans spend their last days in an intensive care unit. Sadly, this is not how the majority of people say they want to spend their last days. A vast majority of Americans say they want to die at home, but 75% die in a hospital or a nursing home. Incredibly, very few people prepare in advance for these events. One recent study suggests that only 29 percent of Americans have an Advanced Directive.
A Patient Advocate Designation is a type of Advanced Directive. It is a written document in which you inform doctors, family members and others what type of medical care you wish to receive should you become terminally ill or permanently unconscious.
A recent Michigan Court of Appeals case addressed issues specifically related to the use and presentation of an Advanced Directive, specifically a health care power of attorney. The Michigan Court of Appeals in Estate of Needham v. Mercy Memorial Nursing Center, (October 3, 2013 unpublished Court of Appeals case) ruled that the medical care provider must obtain or be presented with the Advanced Directive before its terms can be implemented or statements by the patient advocate can be relied upon.
The case involves Burr Needham who fractured his hip in 2002. He received non-surgical treatment from a hospital in Michigan and was transferred to a rehabilitation center. While he was in the rehabilitation center he was considered “full code,” meaning that the center should take call possible steps to revive him in an emergency situation. However, Mr Needham had never signed an Advanced Directive specifically indicating his code preference.
As his health began to decline, Mr. Needham’s spouse began making healthcare decisions under an Advanced Directive. She refused to have Mr. Needham transferred to another facility contrary to the treating physician’s recommendation. As a Jehovah Witness, she claimed her husband would not want additional medical procedures to be taken.
While refusing to consent to her husband’s transfer to a hospital, Mrs. Needham did permit the nursing home to continue administering pain relief medications. As his condition kept deteriorating, he was provided pain medications in the nursing home, and when his health again worsened further his treating doctor again recommended transfer to a hospital. The doctor stated that Mr. Needham would be transferred unless Mrs. Needham produced the Advanced Directive that instructed otherwise. Mrs. Needham then brought in the Advanced Directive and continued to refuse to allow for his transfer. The treating physician prescribed additional pain medications for Mr. Needham and he eventually died.
A medical malpractice case ensued. The hospital asserted that the trial court erred in ruling that the Advanced Directive was not effective until presented to the hospital. The malpractice matter proceeded to trial. The jury found that the nursing home where the patient was staying had negligently administered morphine to the individual, resulting in his death from a morphine overdose. The jury returned a $4,850,000 verdict.
The Probate Pro can assist in creating an estate plan including an Advanced Directive.
