National Health Care Decisions Day: Conflicting State Laws Interfere with Patient's Health Care Choices

The results of a new study underscore the importance of advanced directives and health care proxies in routine estate and health care planning.  The researchers concluded that the ability of medical professionals to understand and honor patients' medical decisions is made more difficult by conflicting state laws, a problem anticipated to only grow along with the nation's booming senior population.

The study of medical decision-making rules,  is the first  of its kind.  Researchers with Beth Israel Deaconess Medical Center, the Mayo Clinic, and the University of Chicago reviewed laws from all 50 states regarding the medical choices of patients. Their findings, published Thursday in the New England Journal of Medicine, show a conflicting system of rules that is difficult to navigate.  The complexity and conflicts may impede professionals ihonoring patients' wishes.

Fewer than 30 percent of Americans have “advance directives” or legal documents outlining their treatment preferences that can also grant someone power to make medical decisions on their behalf. These documents are often necessary, and when available, used when a patient is unconscious, incapacitated or unable to speak for him/herself.  Such documents cam dictate how to treat – or not treat – anything from a minor illness to a life-threatening injury. On average, 40 percent of hospitalized adults cannot make their own medical decisions. In some intensive care units, that figure reaches 90 percent.

Erin Sullivan DeMartino, MD, a pulmonary and critical care medicine physician at Mayo Clinic in Minnesota who led the study as part of a fellowship with the University of Chicago’s MacLean Center for Clinical Medical Ethics, explained in a release accompanying the publication of the study:

“Decisions about withdrawing or withholding life-sustaining care are incredibly emotional and challenging.  But when there is ambiguity about who is responsible for decision-making, it adds much more stress to that moment.

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We have medical technology we didn’t have 50 years ago, so we have a whole group of people who – transiently or sometimes permanently – can’t communicate with us and can’t participate in their own life-and-death decisions."   

Thirty states require the “alternative decision makers” of patients to have an ability to make difficult medical decisions, such as withdrawing a feeding tube or other life-sustaining treatment. But there's no way to assess that ability, the review said. Thirty-five states employ a “surrogacy ladder,” which creates a hierarchy of people able to make medical decisions when patients don't have a power of attorney. But even those systems vary when it comes to the types of decisions surrogates can make.

"One important message from this study is that, in the absence of a clearly identified spokesperson, the decision-making process for incapacitated patients may vary widely depending on where they live,” said senior researcher Daniel B. Kramer, M.D., MPH, in a release on the study.

The study also found states varied in how they defined an appropriate decision maker. Some require surrogates to have an in-depth knowledge of a person's beliefs, while others only require the decision maker be an adult.  The biggest takeaway from the review, according to the research team, is that despite ongoing disputes in healthcare facilities about patients' decisions, no nationwide standard or guide exists for family members or providers.

It is unclear whether the variation in statutes impacts clinical care, according to the research team.  One thing is certain: disputes about medical treatment are happening on a regular basis inside hospitals and hospice programs, and there’s no national standard or benchmark to guide families or physicians.  The more an individual plans, and reduces their decisions to writing, the more likely the individual's decisions will be implemented. 

National Health Care Decisions Day is April 17, 2017.  Throughout the week, August 17-21, our office, and the offices of legal and health care professionals will assist you at no charge in putting in place Durable Powers of Attorney for Health Care and Living Wills (Advance Directives).  If you, a family member, or friend don't have, and need these, please call our office at 877-816-8670.