Advanced Directives and Powers of Attorney in the Emergency Setting

Introduction (00:01):
Welcome to Health Law Talk presented by Chehardy Sherman Williams. Health law broken down through expert discussion, real client issues, and real life experiences. Breaking barriers to understanding complex healthcare issues is our job.

Conrad Meyer (00:20):
Good morning, good afternoon. Whatever time it is you’re listening to this. Welcome to another episode of Health Law Talk presented by Chehardy Sherman Williams. I’m Conrad Meyer. Hey,

Rory Bellina (00:29):
Everybody. It’s Rory again.

Conrad Meyer (00:31):
We have sort of taken a hiatus, but we’re back and today we’re going to be driving into or diving into a topic that I think most people don’t fully grasp, can’t fully understand. And it’s a topic that affects every one of us, all of us, families, friends, parents, loved ones. And until it’s too late, I mean, you get to the very end of the finish line until it’s too late. And that’s advanced directives, living wills and powers of attorney in the emergency room setting. And what we’ve got here is a perfect example to kick us off. I don’t know, Rory, if you’ve been watching the HBO series, The Pit.

Rory Bellina (01:12):
Yep. Absolutely. Really good

Conrad Meyer (01:14):
Series. Highly recommend. Highly recommend. Season one and episode two. I mean, I know they’re on season two now, but were we watching season one again? And episode two presents exactly with the scenario that we’re going to break down today.

Rory Bellina (01:29):
Yeah. So we’ll jump right into that. I think it’s a good hypo that people maybe have seen, but we’ll jump into the real world applications. But essentially in this episode, there was a patient that arrived to the ER. When he arrived, I think he presented or he had with him a very clear advanced directive that said IV fluids and medications are okay, but absolutely no artificial life or support, no CPR, no intubation. This patient clearly knew what he wanted.

Conrad Meyer (01:56):
But that’s not the end of it.

Rory Bellina (01:57):
Yep. So his case obviously progressed downward in the wrong direction and ended up needing some life sustaining measures, some things that I think no one anticipated when he presented.

Conrad Meyer (02:10):
That went against the advanced directives.

Rory Bellina (02:12):
Correct. So his two children appear at the hospital. You’ve got a son and a daughter. One of them is a lot more emotional, a lot more attached to the father. The other one had a lot more of an objective of you and wanted to honor the father’s wishes. So we’ve got three things at play. We’ve got an advanced directive on file with the hospital that the father executed when he had capacity and ability to do so. Then you’ve got one child who wants the hospital to provide every life sustaining measure. And then you’ve got another child who is kind of wishy-washy but ultimately wants to honor the dad’s wishes. So they’re at an impasse.

Conrad Meyer (02:46):
Classic conflict happens a lot. And so what happens here? What is the ER physician faced with?

Rory Bellina (02:53):
Yeah. So some of this is reality. Some of this is obviously just done for TV. On the episode though, I do remember the physician went to the two children and said, “What do you want to do? ” The father had his, we have on file his very clear advanced directive where he only wanted the IV fluids and medication for pain, but no artificial life support, no CPR, no intubation, no resuscitation. The daughter says, “Absolutely not. We’re going to do everything and if you don’t honor our wishes, we’re going to call our attorney and then you’re going to have to get your hospital attorney involved.” There’s more backstory to this of the hospital is financially unstable and they’re trying to keep patients happy and they don’t need bad publicity. So I think that’s in the background of this physician’s mind who’s at the center of the story who is also kind of in charge of the ER program at the time.

Conrad Meyer (03:45):
So what does he do?

Rory Bellina (03:46):
Well, I think he, if I remember correctly, this was last season, but if I remember correctly, I believe they did honor the children’s wishes.

Conrad Meyer (03:56):
Did they? They followed the POA. They did not follow

Rory Bellina (03:59):
The advanced directives. Right. The children, which is also an interesting topic probably for another time is that apparently the children’s had some sort of mutual power of attorney where it wasn’t just one or maybe they came to an agreement. But regardless, the hospital decided we’re going to listen to the kids through their power of attorney and not the elderly patient, the father, his advanced directive. And they kept him on life support essentially for numerous episodes. So an extended period of time essentially.That’s

Conrad Meyer (04:28):
Right. So basically the question is, what was the right call? Yeah. Was that the right call? Should they have followed the power of attorney or should they have followed the patient’s advanced directives? And so we’re going to dive head first into that today and talk about what is the legal framework of these power of attorneys? What are the legal framework of advanced directives? And we’re going to start with Louisiana law and then we’re going to go to the national scene. I mean, each state might have its individual laws, but we’re going to focus here and then we’re going to look at the national settings. Sure. So in Louisiana, we have basically three key documents. You want to go over what those are? Yeah,

Rory Bellina (05:02):
Absolutely. So living will declaration, depending on how it’s phrased, those terms are kind of used interchangeably, but-

Conrad Meyer (05:09):
What is that?

Rory Bellina (05:09):
Yeah. The living will/declaration depending on who’s talking about it, that’s essentially the patient’s statement declaring or directing the withholding or withdrawal of life sustaining procedures. So typically it’s a form, it’s one or two pages and there’s essentially boxes for you to initial deciding what you want. If you want IV hydration and medication or not, it’s signed by the patient and two witnesses-

Conrad Meyer (05:34):
That’s Louisiana

Rory Bellina (05:35):
Law. Yes. Everything we’re saying is under Louisiana law signed by the patient and two witnesses not related to this person and that’s typically kept on file.

Conrad Meyer (05:45):
Well, it’s not related to the person by blood or marriage and has no interest in the estates. So basically you’re pulling someone out of it that might have a conflict of interest that might want the patient to not have support.

Rory Bellina (05:56):
Yes, yes. And then the important part about this document is that typically the patient keeps it. A lot of times if the patient goes into the hospital or goes into a care center, they’ll want a copy of it on file to know what’s going on so they have it in their system

Introduction (06:11):
If

Rory Bellina (06:11):
The patient crashes and then it doesn’t actually go into effect until that time comes when they need to review it. So it’s revocable at any time by the patient.

Conrad Meyer (06:23):
What about the whole, can it be done orally? Say you’re in the hospital, can they do it on the spot in the bed?

Rory Bellina (06:29):
Yeah. I don’t think there’s any restriction against that. I think that it’s fine to do orally. I think a lot of hospitals, and I’ve seen this in practice, a lot of hospitals will pull in a couple of nurses so that

Introduction (06:38):
They can

Rory Bellina (06:39):
Document in the medical record that patient John said that he did not … If this doesn’t go well, he does not want these life sustaining procedures and Nurse Rory and Nurse Conrad were witnesses to this.

Conrad Meyer (06:51):
And then what’s the second document?

Rory Bellina (06:52):
Yeah. So then after that, you go into healthcare power of attorney. And so that is really important. And a lot of times you’ll deal with this with your estate planning attorneys. If you haven’t done so, we obviously recommend it, but essentially it designates an agent or who is going to make those medical decisions for you when you lack capacity. So in the episode of the Pit, this doctor, this patient, we’re not quite sure looks like he named his daughter or his daughter and his son. I’m not sure how it’s-

Conrad Meyer (07:23):
I don’t think we even saw the document. They didn’t

Rory Bellina (07:24):
Show

Conrad Meyer (07:25):
It. The didn’t show it.

Rory Bellina (07:25):
And typically you can’t name two people because that’s

Conrad Meyer (07:28):
Just calling for a conflict. Calling for a

Rory Bellina (07:30):
Conflict. So we don’t know who he really named. That’s really not important, but typically you name one person and then an alternate if the first person is unable or unwilling to serve. Correct. But it basically gives that person the legal authority to be in the patient’s shoes to make those medical decision choices of what are we going to do while my father is intubated, while he’s unconscious, if he’s in a coma, whatever it may be, and that’s what it is. It must be in writing, signed by the patient, two witnesses as well. And that typically overrides any sort of verbal wishes that someone else may make. So if you’ve got one child or one sibling who has that power of attorney for healthcare decision making

Introduction (08:13):
And

Rory Bellina (08:14):
Then you’ve got another sibling who doesn’t, unfortunately, even if they’re siblings, lifelong friends, obviously, same parents, the one with it on paper is the one who gets to make the call.

Conrad Meyer (08:25):
So does it automatically, from what we found, automatically confer the right to withhold or withdraw life sustaining measures of power of attorney in Louisiana? I don’t know if I’m 100% aware of that because I thought it did, but maybe-

Rory Bellina (08:45):
I think where you get into the issue is if you’ve got a healthcare power of attorney similar to this episode, and then you’ve got the healthcare power of attorney that gives, we’ll say the daughter the power, because it seemed like the daughter had the power in the show and then you’ve got the living will executed by the patient. What happens if you’re at an impasse? What happens if the father wants nothing but the daughter wants something? And that’s exactly what-

Conrad Meyer (09:08):
That’s what happened in

Rory Bellina (09:09):
The episode. That’s exactly what happened here. The episode went one direction. I think you and I agree that maybe that wasn’t the correct direction, or at least under Louisiana, that’s not how we’ve seen it go. I know you’ve got experience being in the hospital admin side. So I don’t think that the episode handled it the way that I would recommend if I were on the hospital’s legal counsel, but that’s what we’re going to talk about right now.

Conrad Meyer (09:32):
Okay. Those last things. So what’s LawPost?

Rory Bellina (09:35):
Yeah, so that’s the Louisiana Physician Order for Scope of Treatment. The show kind of hinted at that a little bit, but that is essentially a medical order signed by the physician and that is if the patients have kind of a life limiting irreversible condition it basically if there is a wish that the patient had, it kind of translates the patient’s wishes into a medical order that they have to follow. So if we’re summarizing all of this, we’re going to say that the living will tells the doctors what you the patient want. Healthcare power of attorney tells who should decide for you on medical decisions if you’re unable to make that call.

Conrad Meyer (10:18):
That’s right.

Rory Bellina (10:18):
And LawPost is the physician’s order that gives instructions on what can be acted on immediately.

Conrad Meyer (10:23):
That’s great. I mean, I think you hit it out. You summarized all three correctly. So let’s talk about people who have none of this. So what happens if someone has- No estate

Rory Bellina (10:33):
Planning documents.

Conrad Meyer (10:34):
No estate planning, no advanced directives, no living will, no power of attorney. What happens?

Rory Bellina (10:40):
All right.

Conrad Meyer (10:41):
In Louisiana.

Rory Bellina (10:42):
In Louisiana. So there’s kind of a hierarchy set by statute. It starts with if anyone has been designated in writing, we’re saying no to that. We don’t have anyone designated in writing to make. That’s right. So that would have been the power of attorney that you just said in your hypo. Correct. We don’t have. Does this person have a curator or a tutor? Are they interdicted? Let’s presume no. It’s an independent person, independent person who’s lived on their own, like most of us no. Then it goes to patient’s spouse, presuming that the spouse is living.

Conrad Meyer (11:16):
And still married.

Rory Bellina (11:17):
And still married, not judicially separated.

Conrad Meyer (11:19):
I think some people would not want their ex- wives or ex- husbands making the decision for them.

Rory Bellina (11:22):
Absolutely. Absolutely. So still married is very important. Once you’re judicially separated, I think there’s a distinction between judicially separated. There is one between judicially separated and divorced, but I think the statute, I’d have to triple check it. I think it calls for judicially separated versus divorce.

Conrad Meyer (11:41):
And I think that’s just because you get a court order.

Rory Bellina (11:43):
Correct.

Conrad Meyer (11:43):
So you can file for divorce, but you might not be divorced. Be divorced. Correct. And so when there’s an order for divorce, I think that now becomes a judicial order.

Rory Bellina (11:52):
Yes, yes. But let’s presume we move past that, patient spouse, then we go to the children, which is probably 90% of the cases- I would agree. … involving these ER.

Conrad Meyer (12:04):
So what happens when you got more than one child?

Rory Bellina (12:07):
It’s typically just by majority. What

Conrad Meyer (12:09):
Happens when you have an even number of

Rory Bellina (12:10):
Children? When you’ve got two kids, you’ve got an episode of the Pit. You have that scenario, exactly. So the issue is what happens if there are, let’s say two children, one child in the episode, the daughter wanted everything to be done. That’s right. The son wanted to honor the dad’s wishes, knew the dad was suffering.

Conrad Meyer (12:29):
I mean, it’s a really tough dilemma.

Rory Bellina (12:30):
It absolutely is. And the hospitals are really put in a very difficult decision, but the rule is just by majority. So in that example, the hospitals are just going to … They’ll probably bring in a social worker, they’ll talk with the kids, but ultimately those kids have to come to some sort of decision making issue, decision making. Another point that I’ve seen occur is that if the kids are completely at an impasse, which I believe there was a case out of Florida years ago on this that I think I have some resources on that we could briefly … Yeah, I have it. I have something in there for when there’s multiple children is … And we’ll just jump to it right now. This was a case out of Florida. I believe the last name was Shrivo or Shivo, Terry Shivas case out of Florida.

Conrad Meyer (13:19):
That’s right.

Rory Bellina (13:19):
This patient was essentially in a vegetative state for over 15 years.

Conrad Meyer (13:24):
It was a famous case.

Rory Bellina (13:25):
Famous case. The husband, I believe, wanted the feeding tube removed, claiming he didn’t believe that she would want to live that way. And I believe it was the parents who were fighting in this case to keep Terry alive. The case went over multiple times, several years. I

Conrad Meyer (13:40):
Think it went to go all the way to the Supreme Court?

Rory Bellina (13:41):
The governor got involved. I don’t know how high it

Conrad Meyer (13:44):
Went. I don’t

Rory Bellina (13:45):
Know how it went. I think it was the Florida Supreme Court. I know the governor intervened and there was some legislation passed, and I believe there was ultimately some sort of a consensus or a settlement where they were going to remove the tube after another period of time. But that was another case where there was a real disagreement in that case, but ultimately it’s what are those people in Louisiana, we explained the hierarchy, what are they going to agree upon?

Conrad Meyer (14:11):
Well, it’s not just the children too. So you have adult children, but then it goes to that if you don’t have any adult children, it goes to the grandparents. If the grandparents aren’t there, then you have your siblings.

Rory Bellina (14:20):
Parents, siblings, and then-

Conrad Meyer (14:21):
And then as the collateral further keep going down, you’re right, exactly.

Rory Bellina (14:24):
And then it just keeps branching out. Wait

Conrad Meyer (14:27):
A minute, let me ask you this. How much effort does an emergency room have to do to reach these people? That’s another problem. What if you don’t have phone numbers, no addresses? No way to contact. What’s considered a good … I’m just asking this out that what’s good faith?

Rory Bellina (14:47):
Yeah. I don’t think that they’re … I mean, there’s no definition by statute on what a hospital has to do. I’m sure every hospital ED has a policy or procedure in place on what to do, who to contact, how long we’re going to do it, because from the hospital’s perspective, they’re concerned with the liability as well. If the physicians make a decision on termination of the care and somebody didn’t want it, now they’re going to have an issue. So I don’t have an answer for what is good faith or how long-

Conrad Meyer (15:24):
I don’t think it’s a bright line measure. I think just as long as you can document the efforts that you made to contact as many descendants as you can on that list.

Rory Bellina (15:33):
And you’ve got to get something in writing from someone on this list that is in agreement that makes the decision and you just hope that you’re not going to have other children come around to challenge it.

Conrad Meyer (15:45):
So now we set the stage in Louisiana for the three documents you need. We talked about the issue, but let’s get into actually what happens when you get into the ER?

Rory Bellina (15:52):
Sure, sure. So hospitals are required under law to honor valid advanced directives. The attending physician must be notified of the advanced directive and to take necessary steps to certify that the patient’s condition can be implemented. That’s by statute. It’s really important that the documents are properly executed with the signatures and witnesses. It’s very clear what the patient wants. That allows the doctor to do those law post orders that we talked about. So typically in a situation, if a patient presents and they find out they have an advanced directive on board, it’s my understanding that someone from legal will look at it to make sure that it’s valid and then call back down to the ED and say, “This is good. We need to follow this. ” Or, “We have an issue here. We need to discuss it further.” That’s my understanding from talking with administrators in hospital settings with EDs.

Introduction (16:44):
Got

Conrad Meyer (16:45):
It.

Rory Bellina (16:45):
You want to talk about what happens, what hospitals do not honor?

Conrad Meyer (16:49):
Yeah, I think that’s a critical point and I appreciate you bringing that up. So Louisiana law requires a physician to comply with what we just talked about those three documents and they present in different scenarios. But what it also says is that a doctor who does not want to comply with any of the documents, meaning in advanced directive or a law post or a POA’s directive, that they have to transfer that patient to another physician. So they just can’t, I guess, harbor the patient for the sake of harboring the patient and not wanting to comply with the three documents.

(17:23):
So think about this. They have to make a reasonable effort to transfer the patient and they have to have legitimate grounds for refusal. So in other words, does it go against their moral or religious belief? Are you in a Catholic facility that a religious facility might be another issue or that the directive, whatever the directive is or the wishes are would result in some sort of ineffective care or violate some sort of a health standard. That would be an issue. Pregnancy now, we have the most anti-abortion state law in the country, one of them. So that if there is a living will that as a patient and the patient is pregnant, that living will is invalid because of the pregnancy. So there’s an absolute save the life of the child. So you can invalidate a living will if the woman is pregnant and it could hurt the child.

(18:22):
If it’s unclear, so say the document isn’t witnessed. If it’s not witnessed, then it’s not a real document, not a legal document under Louisiana law. And if there’s no certification, you have to have two physicians to certify that whatever the patient’s condition is, it’s terminable and irreversible. So if you don’t have two, you don’t have certification.

Rory Bellina (18:44):
Yeah. No, those are all great points.

Conrad Meyer (18:46):
So what happens then? So let’s say we got a conflict, Rory. We got a conflict where a power of attorney demands an override of what a patient wishes. What do we do?

Rory Bellina (18:54):
Yeah. And

Conrad Meyer (18:56):
That’s back to the pit. That’s what happened in the pit.

Rory Bellina (18:58):
That goes back to the pit. In my opinion, and the pit went in a different direction and I don’t think it was necessarily the wrong direction because just to summarize what happened in the pit, we had the patient who had a very clear advanced directive, then we had the children who collectively did not want to honor it. And so they tried a couple of things, but ultimately the patient didn’t make it. I think the correct textbook answer is that you honor the patient’s directive. I think though what the hospital did in this show, and I think a lot of hospitals might also make this decision is that is there true harm in honoring the children’s wishes and if anyone were to bring a claim against the hospital, who would it be? It’s most likely going to be the children. In this episode, the patient’s spouse was gone

(19:48):
And there was just the kids. So I think the hospital probably made a legal/business decision in the hypo and said, “If we don’t honor the kids’ wishes, they could sue.” If we do honor and the patient ultimately doesn’t make it, which we all expected, they’re not going to sue us. So the only person that can really come after us, let’s listen to them. Was that the correct answer? I don’t think so, but I think a lot of hospitals do make that decision of saying, “Well, the patient didn’t want this, but we have a concern that the kids are going to challenge this. What do we do? ” And sometimes the department or risk management will come in and look at this and make that call. Well, what’s your thoughts on how they handled it? Do you think they should have listened to the patient’s advanced directive or do you think they should have listened to the children’s wishes?

Conrad Meyer (20:39):
Well, I think that comes down to an important point about the role of a power of attorney. The role of the power of attorney, you are acting as an agent, right?

Rory Bellina (20:47):
Correct.

Conrad Meyer (20:48):
Yeah. Of the patient. You are not supposed to institute your judgment for what the patient really has wished. That’s in advanced directives too. So that’s where they conflict, right? So the agent really is the patient’s voice because they can’t speak.

Rory Bellina (21:04):
And you should be echoing-

Conrad Meyer (21:05):
Not their replacement, not their replacement, not to take your desires and your judgment over what the patient would have wanted. So when the agent has clear evidence of what the patient wanted in an advanced directive, for example, even though they have power of attorney and the patient might be incapacitated, healthcare power of attorney, we have to differentiate that because in Louisiana you have healthcare power of attorney, which must be specifically stated. But when you have that and an advanced directive, even if you disagree, even if you as a person disagree with the advanced directive and it’s interesting because the healthcare power of attorney statute says that the agent shall follow the desires as stated in the document of the living will or otherwise known to the agents. So it actually directs the healthcare power of attorney agent to follow the living will. So that’s a very interesting … I mean, that’s what they’re supposed to do.

Rory Bellina (22:05):
So let’s jump over to can the physicians decline the power of attorney’s instructions and then what’s the liability from the hospital or the provider’s perspective? I mean,

Conrad Meyer (22:16):
The hospital-That’s a tough one.

Rory Bellina (22:17):
Yeah.

Conrad Meyer (22:18):
I mean, that’s a tough one. And imagine so when you saw the pit, I mean for those, and I know we’re hitting on the pit a lot here, but I think- We’re not

Rory Bellina (22:25):
Sponsored

Conrad Meyer (22:26):
By HP. We’re not sponsored. We don’t get any kind of thing from the pit, but I got to tell you, it’s one of my favorite shows because it’s so real. It’s very good. But here’s the thing though, all that’s happening in real time, things are moving so fast and all of this is going at light speed.

Rory Bellina (22:41):
Correct, correct. Sometimes you don’t have time to get in touch with legal or to find someone in the hospital that can answer this and you as the chief of the ED have to make this call. And in

Conrad Meyer (22:52):
This instance- When can you say no? That’s the question. If they have a power of attorney as a doctor, when can you say no?

Rory Bellina (22:58):
I think if it’s documented that the patient had a certain wish in their advanced directive or their living will, whatever you want to call it, and then whoever holds that power of attorney, I think if they are contradicting each other, I think it’s very clear that you go with the advanced directive. I think if there’s a decision that one of the agents for the power of attorney is trying to make that violates medical standards, if it’s medical futility where you’re doing something that is just- No

Conrad Meyer (23:27):
Matter

Rory Bellina (23:28):
What. … it’s not going to work. If they’re acting way outside of their scope or if you think they’re being unduly influenced or abused by someone else, there’s always financial things involved in these matters because some children, one children may not want to try things for their parents because they know that they stand to inherit or something along those lines. So those are all things that an ED physician is having to decide in 30 seconds in the middle of an emergency room with machines and lights and

Conrad Meyer (23:55):
Everything. I get it. I

Rory Bellina (23:56):
Get it. It’s very hard for them to make. So

Conrad Meyer (23:59):
Let’s talk about the liability then.

Rory Bellina (24:00):
Yeah. Okay. So let’s talk about the liability of-

Conrad Meyer (24:02):
Because if you don’t follow the advanced directives, what’s the risk to the doc? What’s the risk to the facility? What do you know from that?

Rory Bellina (24:11):
Yeah. So there’s statutes directly on this that protect the physicians from criminal prosecution, civil liability and professional discipline when they follow valid, valid underlying bold advanced directives in good faith. The flip side to that though is that following the power of attorney instructions that contradict the patient’s written directives, I think creates a higher liability exposure.

Conrad Meyer (24:35):
So in other words, in Louisiana, advanced directives sit at a higher level than the power of attorney, healthcare power of attorney.

Rory Bellina (24:41):
I believe they do. I think a court would look at that and say, “This patient made this decision on this day. We need to honor it as if we were probating this patient’s will. This patient at this day and this time wanted to leave this table to this child. We’re not going to change what that person wanted at the last minute because of the circumstances.”

Conrad Meyer (25:04):
Here’s the interesting thing in Louisiana under medical malpractice if you have a situation like you just described, and you’re going against the advanced directive and say the family wanted to bring a case against the doctor and the hospital, I could tell you from experience that if there is an unwanted or a violation of that, it could be considered a battery against the patient.

Introduction (25:26):
Really?

Conrad Meyer (25:26):
Which is very interesting because I think there’d be a colorful argument. I’ve never seen this case, but there’d be a colorful argument that that was intentional. And if that was intentional, meaning in other words, you’re going to actually violate the advanced directive and that’s intentional, then it is not considered negligence under the malpractice cap. So there’d be no cap.

Rory Bellina (25:48):
Wow.

Conrad Meyer (25:48):
No cap.

Rory Bellina (25:49):
And so who brings that? The children?

Conrad Meyer (25:51):
The children or the estate. The

Rory Bellina (25:52):
Estate.

Conrad Meyer (25:53):
Okay. Say the patient dies or the patient, let’s say the patient lives and they’re subjected to months and months and months of life support or whatever, that’s because it’s not a death, right? Sure. So then you would have a colorful argument that all of that care to sustain life went against the advanced directive and that it’s a battery against the patient and then all those medicals, all that stuff. I mean, I’ve never seen that happen, but I think a colorful plaintiff attorney who is well versed in this could argue that that was an intentional act not covered under the act and it would not be capped.

Rory Bellina (26:28):
Interesting.

Conrad Meyer (26:29):
That’s a

Rory Bellina (26:30):
Really good point.

Conrad Meyer (26:31):
So there’s a real world consequence for that and I think something that hospitals and physicians need to really think about.

Rory Bellina (26:41):
Yeah. So going back to one thing I wanted to hit on because I’ve been thinking about it and I remember when we were preparing for this show reading that your example of what does the doctor do when he can’t get in touch with everyone. I know that there’s AMA guidance that I had in my notes I was looking for while you were talking that discussed that if there is no one there, if there’s

Introduction (26:58):
No

Rory Bellina (26:58):
Advanced directive on file and there’s no one there to make the decision, you provide medically appropriate interventions to meet the clinical needs. You don’t withdraw care until the patient’s preferences become known. Either you find the advanced directive, you go through the patient’s estate planning documents, you call their attorneys, see if there’s something on file or you get in touch with the kids or wherever you’re falling on that hierarchy that we talked about earlier, you get in touch with someone on that list who you believe and your legal department approves, hopefully can make the call. So basically you do everything you can to sustain that patient until you get someone who can ultimately make the call.

Conrad Meyer (27:39):
Got it. I think that’s good advice, good advice. So

(27:43):
I think we talked a little bit about Terry Shiveo case and we talked a little bit about what happens when you’ve got one child as a healthcare power of attorney. I think that’s pretty self-explanatory that that person could override other siblings, right? So we went over the fact that we have multiple children now with the Shiva case and I think we covered very, very extensively for what time we have. I mean, we can make this into an entire class, multiple classes in law school, but let’s go to the national standards. Sure. What do you think from a national federal standpoint, does the Constitution, for example, provide some sort of guidance on the issues that we’re talking

Rory Bellina (28:29):
About? So I was able to find one case and I was able to review portions of it, not the whole case. This was a US Supreme Court case from the ’90s. So we’re talking a very long time ago, but I believe it’s still valid.

Conrad Meyer (28:40):
One more time. I graduated high school in 1990. What are you talking about? It’s not that long ago. I mean, I know it was long ago, but it’s not like in the 1950s.

Rory Bellina (28:47):
I was two years old. Anyway, the Supreme Court held that there is a constitutionally protected, and this is the court’s words, a constitutionally protected liberty interest in refusing unwanted medical treatment. And so that then led to something later that year called the Patient Self-Determination Act.

Conrad Meyer (29:08):
So what does that do? That

Rory Bellina (29:09):
Went into effect that applies to all Medicare and Medicaid participating in hospitals, which is essentially every hospital. The summary of the PSDA is informing patients at admissions of their rights to make their own decisions, provide written information about the hospital’s advanced directive policies. So does the hospital require, will they take verbal ones? Do

Introduction (29:30):
They

Rory Bellina (29:30):
Need something in writing? Document in a part of the medical record whether the patient has an advanced directive. That’s really important in EHR systems. Now I know it’s almost like a pop-up screen if the patient has one in the ED setting. Ensure compliance with state advanced directive laws, provide staff education and then community education. So the important part is that hospitals cannot condition care or discriminate based on whether a patient has an executed advanced directive. You cannot require a patient Patients to sign them. So you can’t pick and choose your patients or say we are not going to do everything or we are going to do everything based on what the patient has on file.

Conrad Meyer (30:11):
Got it. And so that’s the overlying legislative or jurors credential, excuse me, case in the Supreme Court. Another intersection here on the federal level is IMTALA.

Rory Bellina (30:23):
Yeah.

Conrad Meyer (30:23):
So MTALA-

Rory Bellina (30:24):
Stabilization of patients regardless of ability to

Conrad Meyer (30:27):
Pay. Yes. For those of you who don’t know, EMTALA is a body of regs that require emergency rooms to do a baseline. I think we maybe did a show on this. When a patient comes to the ED that they get evaluated by a qualified medical personnel and that they have a medical screen and that they are stabilized and we can do a whole show on that itself.

(30:51):
But MTALA I think intersects here on this kind of situation because it requires the stabilization and a patient who is competent who wants to refuse treatment has to have the capacity to do so. So in other words, you can come to the ED and you could refuse treatment if you have capacity. You have the right to do so. And I think that goes also with the PSDA that you mentioned before. So as long as we have competent patients who refuse treatment after being informed of the risks can do so, can do so. So even though that happens, that’s why we have all these interlaying documents. We have the advanced directives that would allow for patients who might not have capacity to speak for them. MTALA also might conflict because you’re required to give treatment, but patients can refuse to as long as they’re competent. And if they have an advanced directives, when they’re not competent, that should dictate.

Rory Bellina (31:48):
So I think to kind of practical guidance and takeaways as we kind of round out this episode, I think the most, depending on who’s listening to this, if it’s a patient or a family member, obviously the number one thing is figure out what you want to do and get with your attorney to come up with a plan on preparing those documents now because you don’t want your kids or your loved ones to have to make this

Conrad Meyer (32:11):
Decision. During our research for this, Rory, I found the statistic that only 13% of patients with advanced directives have them accessible in the ED.

Rory Bellina (32:21):
13%.

Conrad Meyer (32:22):
13%. And I can’t even tell you, what do you think would be the percentage of people who have no advanced directives in, for example, the state of Louisiana? It’s got to be-

Rory Bellina (32:34):
It’s got to be a lot.

Conrad Meyer (32:35):
Very high. I think a lot. Yeah. And what about people who don’t have healthcare power of attorney? That’s again, a lot. Right. So that’s why we had this episode because it affects everyone. It does. It affects everyone. And you, me, all of us here, everyone.

Rory Bellina (32:47):
And no one wants to talk about this, but it’s the ugly part of running a hospital is that while you can’t find it or while you can’t determine if the patient has or does not have one, this hospitals are spending exorbitant amount of

Conrad Meyer (33:02):
Time- Money and money.

Rory Bellina (33:03):
… money resources in performing these life sustaining procedures when the patient may have an advanced directive that they don’t want that. And ultimately their family or the estate may get a very large bill from the insurance carrier in this case for these life sustaining procedures when the patient might not have wanted them. So that’s always a factor that it’s not great to talk about, but it needs to be considered. So

Conrad Meyer (33:27):
What tips would you give people? What would you do to tell them right now

Rory Bellina (33:31):
They need to do it? For the patients, we’re all patients in some aspect, but for anyone who’s listening, I would say absolutely decide what you want to do and get with your attorney to make sure that you have this figured out now. The last thing you want to do is that have your spouse and kids and/or kids trying to decide this when you’re sitting in a hospital. I would say that is my biggest thing. Talk with your doctor about it at your next visit to say, what does it mean withholding IV, withholding medication, no intubation? Is that going to be painful? What does that look like? What do you recommend? Because sometimes, I mean, your attorney will be able to explain that as well, but I think a lot of people would rather hear it from their provider on what does this actually look like because everyone’s primary care physician probably did a round or spent some time in med school and residency in an ED and got to see what this looks like.

Conrad Meyer (34:22):
And I think too, also when you’re picking your healthcare power of attorney, pick a person who’s going to carry out your wishes and not substitute their own.

Rory Bellina (34:33):
And let them know that they’ve been picked. You don’t have to give them the document. I would recommend giving them a copy of it so they have it, but you don’t have to if you want to ever change it or revoke it. You obviously can the newest dated one. Don’t feel that you have to go get that document back from the person that you pick if you later down the road, you change someone else. Agreed. The closest to that day, that document

Conrad Meyer (34:57):
Governs. You can update and I would tell you to update this regularly. Don’t just sit on it and talk to your physician, but consider the law post.

Rory Bellina (35:08):
Yeah.

Conrad Meyer (35:08):
Consider the law post. I think that would be good and give things to your healthcare attorney.

Rory Bellina (35:15):
And just make sure it’s in your medical record. So if you’ve established care with a practice, make sure it’s in your medical record. That’s right. A lot of these EHR systems specifically in Louisiana talk with each other. I know our two big hospital systems, they have integrated their Epic system. I don’t know if you’ve seen that. I’ve seen it on the patient side where I logged in and it pulled my record from one system to another system. So now-

Conrad Meyer (35:36):
We have interoperability.

Rory Bellina (35:37):
The two major systems in Louisiana share Epic records. So now they’re going to have everything on file. And then if you’re a provider, what’s your recommendation here that you ask every patient about this or that you try to get it in their medical records so you know, because you never know. You could be coming in for a routine check and the patient falls off the table and shouldn’t you know what that patient wanted?

Conrad Meyer (36:01):
Yes. Yes. And then let me tell you this, but people need to understand too. So let’s just say you do all this work, right? You realize you can revoke your living will at any time.

Rory Bellina (36:10):
Absolutely.

Conrad Meyer (36:11):
You can do it.

Rory Bellina (36:12):
Every day.

Conrad Meyer (36:13):
Anytime you … You can do it verbally. You could rip it up. You can do it by a physical act. So if you feel like you want to change your mind, guess what? You can.

Rory Bellina (36:20):
Yeah.

Conrad Meyer (36:20):
It’s good. Absolutely.

Rory Bellina (36:21):
It’s not permanent. It’s not locked in.

Conrad Meyer (36:24):
Now let’s go back to hospitals and doctors. Because our focus here also needs to be on what should they watch out for to protect themselves from liability because that’s exactly what you and I were thinking about when we watched that episode.

Rory Bellina (36:36):
Yeah. I think hospitals are going to look at what does this document look like? Does it look like it’s validly written? Who are the witnesses? Or do we have witnesses that are related? Do we have the kids as witnesses? Does it look like an attorney prepared this? Is this going to hold up if there’s a lawsuit? So I think having the providers or the hospital’s legal department involved is very important. If there’s a drastic change, if you know this patient and they’re established, is there a drastic change from the previous version that you talked about with them? When was it executed? Was it executed that day or was it executed right before they came in? Sometimes the patient knows I’m not going to make it and this is it and I’m going to get this on paper, but sometimes they could be coerced by unfortunately loved ones.

(37:24):
So I think those are all the things that again, that ED physician or the legal department has to figure out at the drop of a hat when the patient’s crashing.

Conrad Meyer (37:32):
So now that we’ve fully educated our listeners to as to what’s going on here, what should Dr. Robbie have done in the pit?

Rory Bellina (37:39):
I still go back to he should have honored the patient’s advanced directive, documented in the medical record why documented in the medical record that he explained to the family all of his obligations and also have everyone who was in that room when he did it, put their names in the medical record as well. On the flip side, the family could have gotten their attorney, gotten a TRO essentially, gotten some emergency powers and relief from the court if they believe that that advanced directive was invalid. But I think if you’re asking me what should he have done on the episode, honor the patient’s wishes if you believe it was a valid advanced directive.

Conrad Meyer (38:20):
And I agree with that. I think having the advanced directive is exactly what it was there for that moment. That’s when the patient cannot speak for themselves. We honor their voice through the document they prepared when they could speak for themselves, right?

Introduction (38:33):
Yeah. So

Conrad Meyer (38:34):
Look, I want to tie this around. Anybody here listening, if y’all have any questions about this or you want to make sure that you’re doing this correctly for yourself or your family members, you can always reach out to Rory and I here at Shahardi Schirmer Williams. We’re happy to do that. You can reach us at our mainline 504-833-5600 and ask for Rory or Conrad or just go to our website. That’s www.shahardi.com. So Rory, again, great episode. Thank you for bringing this to the attention of everyone. We’re glad to be back. We’re here in 2026. We’re going to start this fresh and looking forward to bringing everyone hot topics in healthcare law and we will do so on a weekly basis. Right? Rory, we’re going to commit to that, right?

Rory Bellina (39:15):
That’s goal.

Conrad Meyer (39:16):
That’s right.

Rory Bellina (39:17):
New Year’s resolution. That’s right. All

Conrad Meyer (39:19):
Right, great. Everyone, until next time, it’s been wonderful. It’s been great. Look forward to giving you the hottest topics in Health Law Talk. See you soon.

Introduction (39:28):
Thanks for listening to this episode of Health Law Talk presented by Chehardy Sherman Williams. Please be sure to subscribe to our channel. Make sure to give us that five star rating and share with your friends. Chehardy Sherman Williams is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does this podcast establish an attorney-client relationship. Reference to any specific product or entity does not count as an endorsement or recommendation by Chehardy Sherman Williams. The views expressed by guests on the show are their own and their appearance does not imply an endorsement of them or their entity that they represent. Remember, please consult an attorney for your specific legal issues.