October 21, 2018

Laws to Guide Care Disputes under Advance Medical Directives

By William Charters and  Jeffrey Kiser

Advance Medical Directives provide the most definitive information – other than direct patient conversation, of course – about the course of a patient’s treatment. What happens, however, when a physician considers the treatment wishes of a patient or family to be inappropriate or unethical?

Congress provided a right for patients to make
predetermined decisions about their medical care when they passed the Patient Self-Determination Act in 1990.  Increasingly, however, the care that patients and their families want or demand is beyond what their physician deems appropriate.  Different states allow for varying degrees of discretion, and not everyone “legally” permits the same procedures or care.  Virginia, for example, does not recognize the Death with Dignity Act (or any other physician-assisted end-of-life program), but a nearby neighbor, the District of Columbia, does.  Knowledge of the particulars of the Virginia statutes provides a springboard for the analysis of what can or should be provided.

How about that circumstance where the treatment
demanded is considered unethical, immoral or inappropriate by the treating physician?  The Code of Virginia provides that an attending physician faced with an instruction to render care that he/she feels is medically or ethically inappropriate is not required to carry out the instruction (whether contained in an advance directive or not) but must first make every reasonable effort to explain his/her reasoning to either the patient or the decision-making authority under the advance directive.  Then within 14 days, the treating physician must make a reasonable effort to transfer the patient to another physician who is willing to comply with the patient’s request or the directive’s instruction.   Many facilities have a mediation process of sorts that helps to determine the medical appropriateness of care in conjunction with the physician and the patient or decision maker.

It is important to note, however, that this requirement does not extend to treatment the physician is physically or legally unable to provide.  More specifically, the Code directly states that “mercy killing or euthanasia” is not permitted, nor is any act that will “end life other than to permit the natural process of dying.”  These guidelines aim to help physicians maintain a level of professionalism and control over their practice but, most importantly, offer protection against professional malpractice and personal tort claims.

While these rules and the rest of Virginia’s Health Care Decisions Act offer aid and guidance, they are most effective when implemented on a proactive rather than reactive basis – as the old saying goes, an ounce of prevention is worth a pound of cure.  Take the time to educate yourself and your practice on the many facets of advance directives, and establish a protocol for how you and your employees will determine if an advance directive exists for any given patient.  Once you know that and determine who the “decision maker” is, be honest and straightforward about what you consider moral and ethical treatment, so that care can be transferred early on if there is likely to be a dispute.

William Charters

Jeffrey Kiser

William Charters, a member of Goodman Allen Donnelly, focuses his practice on providing advice, risk and litigation support to healthcare professionals and practices throughout the Commonwealth.  Jeffrey Kiser, an Associate with GAD, provides detailed and targeted guidance to individuals and groups for their end of life and asset protection plans.  goodmanallen.com