What do I do when a health care directive is challenged by hospital doctors?

4 answers | Last updated: Nov 24, 2016
Dubletruble92868 asked...

What do I do when a health care directive is challenged by hospital doctors?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Laws in most states obligate doctors to honor a valid advance directive—or else transfer the patient to the care of a doctor who will honor it.

But as you might already have discovered, it can be difficult indeed to break through the unwritten Physicians' Code of Silence and find one who will act against the express lobbied wishes of another.

If the advance directive is being challenged, there is likely an internal procedure for it; contact the patient representative at the hospital to find out. Most hospitals will also provide a dispute resolution service to resolve the matter is family members or close friends butt heads with medical doctors unwilling to act.

If you believe the advance directive accurately reflects the patient's wishes, be aggressive in insisting that it's enforced as written. This may involve testifying before a hospital committee, enlisting others to testify presenting relevant correspondence or other evidence underscoring the patient's wishes—or insisting that the dispute be resolved by an objective body such as a dispute resolution service.

Pay attention to the particular reason that the doctor refuses to honor the directive. If he or she claims the patient lacked capacity to make one, for example, concentrate your efforts on finding and presenting evidence of the patient's cogent actions around the same time the directive was made.


Community Answers

Bobm answered...

I will add one more voice stressing the importance of having an advance directive in place with notorized or certified copies provided to the primary care physician, your attorney (if there is one) and those who witnessed signing of the document. My Mother executed one naming me as her decision maker. At the end of her final illness the attending physician employed what was, in my opinion, unprofessional overt and covert means to force me to disregard what my Mother had plainly stated and authorize treatments she would never have consented to. I have an advance directive in place, naming my daughter as decision maker, the provisions of which have been have been plainly and openly discussed with my other children. Naming an advocate must be given serious thought. You have to completely trust your advocate to stand firm and not be swayed by all the emotional nuances that are likely to be present.


Jtmckay answered...

The above answers are both very helpful. Perhaps additional specifics may be, as well. I always encourage a multi-step process in these matters. First, make a formal "sit-down" appointment with the physician to voice your concerns. Bring a support person with you, so that you are not alone in expressing your views and it is clear that someone else is aware of the issues. The appointment is important to ensure that your concerns are not relegated to a "hallway chat" where the discuss may be overly rushed or distracted by other obligations or interruptions. Such a meeting may also reveal underlying disagreements about treatment, etc, that can then be promptly addressed and resolved. Second, if the formal discussion does not succeed, request an "ethics consultation" on the matter. Nearly all hospitals today have ethics committees, with members on-call to provide consultation and support to patients, families, and physicians. Sometimes a brief intervention by an ethics committee member is all that is necessary. Third, if a "consultation" does not resolve the concern, request a full Ethics Committee review. This requires a full quorum of committee members to address the concern. Most committees have a diverse membership, and special training on advance directive matters. Other options include contacting the hospital's "Patient Assistance" department, and/or contacting a local health care "ombudsman" to intervene. Finally (and reserved to last) are steps such as lodging a formal complaint with hospital administration, contacting the local medical board, or seeking formal legal advice to press the matter. Advance directives are legal documents, and they should always be honored. Those named by the patient to ensure their wishes are honored have an obligation to honorably discharge the duty. One final note. Having an advance directive that is very clearly written, and that very plainly spells out the role and authorities of the person named can be particularly helpful. An example is the Lifecare Advance Directive (see: www.LifecareDirectives.com). Where more vague standard directives are used, additional supporting material such as that found via the American Bar Association "toolkit" can be helpful, as well (see: http://www.abanet.org/aging/toolkit/home.html). Exploring all document options in advance can help avoid similar problems in the future. -- JT McKay, PhD


Doggett answered...

I don't think I can help. My mother is in a nursing home. The nursing home felt she needed hospice. The doctor refused. He thinks he can save her although she has refused treatment and has a living will. She was sent back to the nursing home when she refused treatment in a major hospital, because it was her right to refuse. Our elderly parents are not getting the support they need, despite their rights, especially in these small communities. I wish I did have an answer for you, but I can't even help my mother, God bless you.