Transcript Legal Issues Affecting The Elderly In The Medical Practice

Paul G. Izzo, Esq.
R. Shawn Majette, Esq.
ThompsonMcMullan, PC
This presentation is available at: http://www.majette.net/outlines.htm
Issues Presented
 Mental Incapacity: Medical Decision
Making Solutions to Minimize Physician /
Institutional Liability.
 Functional Incapacity: After The Hospital,
Discharge To Community / Congregate
Care.
 Financial Insufficiency: A Primer On Long
Term Care Medicaid To Assist In
Discharge Planning.
Consent Is Fundamental
“[T]he physician-patient relationship is a
consensual one. … Thus, unless an emergency or
unanticipated problem arises, a physician or
surgeon must first obtain the consent of a
patient before treating or operating on that
patient. … 'An unauthorized operation is a
wrongful and unlawful act for which the surgeon
will be liable in damages.’”
Washburn v. Klara, 263 Va. 586, 561 S.E.2d 682 (2002).
I’m covered, right?
Informed Consent or None
“Ms. Rizzo signed a …. consent form. However, this form did
not inform her of any specific procedures that Dr. Schiller
intended to perform; nor did it inform her of foreseeable
risks associated with any procedures or risks in failing to
perform any procedures. As Dr. Arner observed, the form is
so general in nature that "you could also justify amputating
her foot." … [T]he duty imposed upon a physician to obtain a
patient's informed consent requires more than simply
securing the patient's signature on a generalized consent
form, similar to the form present here. The law requires
informed consent, not mere consent, and the failure to
obtain informed consent is tantamount to no consent. “
Rizzo v. Schiller, 248 Va. 155, 159, 445 S.E.2d 153 (1994)
Every Adult Presumed Capable
Of Informed Medical Decisions
Every adult shall be presumed to be capable of making
an informed decision unless he is determined to be
incapable of making an informed decision in
accordance with this article. A determination that a
patient is incapable of making an informed decision
may apply to a particular health care decision, to a
specified set of health care decisions, or to all health
care decisions. No person shall be deemed incapable
of making an informed decision based solely on a
particular clinical diagnosis. Va. Code § 54.1-2983.2
Common Scenarios
 Demented patient incapable of consent for medical
treatment or discharge to a required level of care.
 Developmentally disabled adult, or minor nearing 18th
birthday.
 Transiently incapable patient (alcoholic, post
operatively delirious, UTI).
 Chronically mentally ill patient transiently or baseline
non-compliant with medicine.
Medical Decision Incapacity
Defined
"Incapable of making an informed decision" means
unable to understand the nature, extent, or probable
consequences of a proposed treatment or unable to
make a rational evaluation of the risks and benefits of
the proposed treatment as compared with the risks
and benefits of alternatives to the treatment. Persons
with dysphasia or other communication disorders who
are mentally competent and able to communicate shall
not be considered incapable of giving informed
consent.
Incapacitated Adult Defined
“Incapacitated person" means an adult who has been found
by a court to be incapable of receiving and evaluating
information effectively or responding to people, events, or
environments to such an extent that the individual lacks
the capacity to (i) meet the essential requirements for his
health, care, safety, or therapeutic needs without the
assistance or protection of a guardian or (ii) manage
property or financial affairs or provide for his support or for
the support of his legal dependents without the assistance
or protection of a conservator. A finding that the individual
displays poor judgment alone shall not be considered
sufficient evidence that the individual is an incapacitated
person within the meaning of this definition. ….
Planning For Medical Incapacity:
The Advance Directives
“Advance directive" means (i) a witnessed
written document, voluntarily executed by
the declarant in accordance with the
requirements of § 54.1-2983 or (ii) a
witnessed oral statement, made by the
declarant subsequent to the time he is
diagnosed as suffering from a terminal
condition and in accordance with the
provisions of § 54.1-2983
Mental Illness Defined
"Mental illness" means a disorder of thought, mood,
emotion, perception, or orientation that significantly
impairs judgment, behavior, capacity to recognize
reality, or ability to address basic life necessities and
requires care and treatment for the health, safety, or
recovery of the individual or for the safety of others.
For purposes of involuntary civil commitment, it
includes substance abuse.
Mental Incapacity:
Consent for Medical Decision
Making By Third Parties
Without Court Action
Surrogates
A surrogate is the person who
gives consent upon which a
health care provider may rely for
consent.
Surrogates
A surrogate may be appointed by
the patient, or by a judge. A judge
acting in a direct consent case is a
surrogate.
Thus, a surrogate may be
voluntary or involuntary.
Surrogates
The only expressly voluntary
surrogate is a health care agent
appointed by the patient.
Surrogates
Implied surrogates are those
who have powers by reason of
statute and, in some cases, court
order. They are not appointed
by the patient and may act
contrary to his actual wishes.
•Checklist for Directives
(Virginia State Bar).
•Standard Advance Medical Directive (Virginia Hospital &
Healthcare Association Form).
•Psychiatric "Protest" Advance Directive (Virginia Hospital &
Healthcare Association Form).
•Two in One: The Virginia Official Form at Va. Code § 54.1-2984.
•State by state: Protest Advance Directives.
•Virginia teaching materials for community outreach.
Consent Includes Withholding And
Withdrawal Of Care
Whenever a patient is determined to be incapable of
making an informed decision and (i) has not made an
advance directive in accordance with this article or (ii) has
made an advance directive in accordance with this article
that does not indicate his wishes with respect to the health
care at issue and does not appoint an agent, the attending
physician may, upon compliance with the provisions of this
section, provide, continue, withhold or withdraw health
care upon … authorization ….
Va. Code § 54.1-2986
Consent of Implied Agent Effective Only
When Patient Does Not Protest
If a patient protests the authority of a named agent or any
person authorized to make health care decisions by § 54.12986, except for the patient's guardian, the protested
individual shall have no authority under this article to
make health care decisions on his behalf unless the
patient's advance directive explicitly confers continuing
authority on his agent, even over his later protest.
Va. Code § 54.1-2986.2 (2010)
Consent Ineffective When Patient Protests;
Exception.
If a patient protests the authority of a named agent or any
person authorized to make health care decisions by § 54.12986, except for the patient's guardian, the protested
individual shall have no authority under this article to
make health care decisions on his behalf unless the
patient's advance directive explicitly confers continuing
authority on his agent, even over his later protest.
Va. Code § 54.1-2986.2 (2010)
Health Care Immunity
A health care facility, physician or other person acting under
the direction of a physician shall not be subject to criminal
prosecution or civil liability or be deemed to have engaged
in unprofessional conduct as a result of issuing a Durable
Do Not Resuscitate Order or the providing, continuing,
withholding or the withdrawal of health care under
authorization or consent obtained in accordance with this
article or as the result of the provision, withholding or
withdrawal of ongoing health care in accordance with §
54.1-2990.
Va. Code § 54.1-2988
Agent Immunity
Any agent or person identified in § 54.1-2986 who authorizes
or consents to the providing, continuing, withholding or
withdrawal of health care in accordance with this article
shall not be subject, solely on the basis of that
authorization or consent, to (i) criminal prosecution or
civil liability for such action or (ii) liability for the cost of
health care..
Va. Code § 54.1-2988
1.
Agent under an advance directive.
Va. Code § 54.1-2986
2.
A guardian for the patient.
Va. Code § 54.1-2986
3.
The patient's spouse
except where a divorce
action has been filed and
the divorce is not final.
Va. Code § 54.1-2986
4.
An adult child of the patient
Va. Code § 54.1-2986
5.
An adult brother or sister of the
patient
Va. Code § 54.1-2986
6.
Any other relative of the patient in
the descending order of blood
relationship
Va. Code § 54.1-2986
7.
Any adult, who (i) has exhibited special care
and concern for the patient and (ii) is familiar
with the patient's religious beliefs and basic
values and any preferences previously
expressed by the patient regarding health
care, to the extent that they are known
EXCEPT:
Va. Code § 54.1-2986
7. (Exceptions)
EXCEPTION: Cases In Which The
Proposed Treatment Recommendation
Involves The Withholding Or
Withdrawing Of A Life-prolonging
Procedure
Va. Code § 54.1-2986
7. (Exceptions)
EXCEPT: no director, employee, or agent
of a health care provider currently
involved in the care of the patient may
serve.
Va. Code § 54.1-2986
7. (Who Decides Who’s Who?)
A quorum of a patient care consulting
committee … of the facility where the
patient is receiving health care or, if such
patient care consulting committee does
not exist or if a quorum of such patient
care consulting committee is not
reasonably available, two physicians who:
Va. Code § 54.1-2986
7. (Who Decides Who’s Who?)
(a) are not currently involved in the care of the patient,
(b) are not employed by the facility where the patient is
receiving health care, and
(c) do not practice medicine in the same professional
business entity as the attending physician
shall determine whether a person meets these criteria
and shall document the information relied upon in
making such determination.
Va. Code § 54.1-2986
Mental Incapacity:
Direct Judicial Consent for Ad
Hoc Medical Decision Making:
Chapter 11 Proceedings in the
District Court
Emergency Medical Consent:
Get Me To The Hospital On Time!
Emergency Medical Transportation by EMS
(Immediate Transport To Hospital) (Order Issued
by Magistrate)
Used to secure an emergency order by telephone
from the local magistrate to authorize an EMS
ambulance officer to transport a protesting in
extremis patient to a hospital emergency room.
Va. Code § 37.2 -1103
Emergency Medical Consent:
I’m Here, Now Let Me Go Die!
PETITION for Emergency Judicial Medical
Detention and Consent. DOCTOR COMPLETES Adobe file (download and print) and ORDER
When death, disability, or a serious irreversible
condition will occur within 24 hours absent emergency
care. Think of Romeo and Juliet.
Va. Code § 37.2 -1104
Emergency Medical Consent:
Non Protesting Patients
Non Emergency Medical Consent
Petition for Medical Consent - Adobe format,
download and print
Order for Medical Consent - Adobe format,
download and print
The hearing: lawyer, minimal notice, a’ la carte.
Va. Code § 37.2 -1101
Limited Medical Judicial Consent
Judicial consent may not extend to:
1. Nontherapeutic sterilization, abortion, or psychosurgery.
2. Admission to a training center or a hospital [WITHOUT A CIVIL
COMMITMENT HEARING AND ORDER];
3. Administration of antipsychotic medication or electroconvulsive therapy (ECT
only if it is demonstrated by clear and convincing evidence, which shall include
the testimony of a licensed psychiatrist, that all other reasonable forms of
treatment have been considered and that electroconvulsive therapy is the most
effective treatment for the person), over the person's objection UNLESS THE
PATIENT IS SUBJECT TO AN ORDER OF INVOLUNTARY COMMITMENT.
4. Restraint or transportation of the person, UNLESS it finds upon clear and
convincing evidence that restraint or transportation is necessary to the
administration of an authorized treatment for a physical disorder.
Va. Code § 37.2-1102
Judicial Medical Consent
Anti-psychotic Prescription Medicine
And ECT
Petition for Judicial Consent to Administration of Anti
Psychotic Medications or Electroconvulsive Treatment
Exhibit listing of common psychiatric medications for
use in conjunction with Petition for Judicial Consent to
Administration of Anti Psychotic Medications –
Order for Judicial Consent Anti Psychotic Medications or
Electroconvulsive Treatment - Adobe format, download
and print
Mental Illness:
Involuntary Civil Commitment
and Associated Health Care
Liabilities
Surrogate Involuntary Commitment
and Medication
A patient may authorize an agent and a
circuit court may in a special order
authorize a guardian to admit a patient
for psychiatric care and other related
mental health treatment for up to ten
days without the necessity of a separate
civil commitment proceeding.
Va. Code § 37.2 -805.1
Health Care Liability: Duty to Warn
and the Immunity Statute
A mental health service provider has a duty to
take precautions to protect third parties from
violent behavior or other serious harm only
when the client has orally, in writing, or via
sign language, communicated to the provider
a specific and immediate threat to cause
serious bodily injury or death to an identified
or readily identifiable person or persons.
Va. Code § 54.1-2400.1
Health Care Liability: 5 Easy Steps To
Avoid Liability From Your Patients’
Victims and their Families
The duty to warn may be discharged by a
covered mental health professional who:
1. Seeks involuntary admission of the client
under Article 16 (§ 16.1-335 et seq.) of
Chapter 11 of Title 16.1 or Chapter 8 (§ 37.2800 et seq.) of Title 37.2.
Va. Code § 54.1-2400.1
Health Care Liability: 5 Easy Steps To
Avoid Liability From Your Patients’
Victims and their Families
2. Makes reasonable attempts to warn
the potential victims or the parent or
guardian of the potential victim if the
potential victim is under the age of 18.
Va. Code § 54.1-2400.1
Health Care Liability: 5 Easy Steps To
Avoid Liability From Your Patients’
Victims and their Families
3. Makes reasonable efforts to notify a lawenforcement official having jurisdiction in
the client's or potential victim's place of
residence or place of work, or place of work
of the parent or guardian if the potential
victim is under age 18, or both.
Va. Code § 54.1-2400.1
Health Care Liability: 5 Easy Steps To
Avoid Liability From Your Patients’
Victims and their Families
4. Takes steps reasonably available to the
provider to prevent the client from using
physical violence or other means of harm to
others until the appropriate lawenforcement agency can be summoned and
takes custody of the client.
Va. Code § 54.1-2400.1
Health Care Liability: 5 Easy Steps To
Avoid Liability From Your Patients’
Victims and their Families
5. Provides therapy or counseling to the
client or patient in the session in which the
threat has been communicated until the
mental health service provider reasonably
believes that the client no longer has the
intent or the ability to carry out the threat.
Va. Code § 54.1-2400.1
Surrogate Involuntary Commitment
and Medication
Every protest advance directive /
guardianship court order (see above)
should specifically authorize such
admissions AND that in addition to the
mental health admission, the agent
may authorize antipsychotic medicine
and ECT.
Surrogate Involuntary Commitment
and Medication
Failure to include specific powers of the
advance agent or the specially qualified
guardian may lead to the necessity of
an involuntary civil commitment
proceeding and forced medication /
ECT proceeding.
Involuntary Commitment and
Medication
Involuntary civil commitment under Va.
Code § 37.2 -800 et. seq. is a complex
proceeding requiring coordinated
efforts of the local mental health
department, the local law enforcement
agency, and the local district court to
secure mental health treatment.
Involuntary Commitment and
Medication
Civil commitment is a remedy which is
strictly limited by the United States
Constitution and state law.
It is available only when there is clear
and convincing proof that a person is
mentally ill and that, in consequence:
Involuntary Commitment and
Medication
1.
2.
3.
there is a substantial likelihood that the
person will, in the near future
cause serious physical harm to himself or
others or
suffer serious harm due to his lack of
capacity to protect himself from harm or to
provide for his basic human needs.
There must also be proof that the person is in
need of hospitalization or treatment, is unwilling to
volunteer or incapable of volunteering for it.
Involuntary Commitment and Medication:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(34) authorizes a health care
provider to inform a family member of a patient’s
location, general condition and other treatment
related information when an opportunity to agree
or object to the notification cannot practicably
be provided because of … incapacity or an
emergency circumstance, if the health care
provider professionally determines that the
notification is in the best interests of the
individual.
Involuntary Commitment and
Medication
Virginia Civil Commitment Elements:
Evaluation
Arrest
Transport
Hearing, and here, and here
Treatment (and Med orders)
Appeal
Quarantine for Airborne
Diseases
When a patient is known or suspected to be infected with "a
communicable disease of public health significance caused
by an airborne microorganism, despite documented and
appropriate counseling, is engaging in conduct that
unreasonably places uninfected persons at risk and medical
data demonstrate that he poses an imminent threat to the
health of others, the Commissioner may issue an emergency
order requiring such person to be taken immediately into
custody." Va. Code § 32.1-48.02 (D)
Quarantine for Airborne
Diseases
The Commissioner is required to petition the
General District Court in which the detained
patient resides "to determine whether
isolation is necessary to protect the public
health from the risk of infection …." Va.
Code § 32.1-48.03,-.04.
Judicial Appointment for ongoing Medical
and Financial Decision Making:
Guardianship and Conservatorship
Guardianship and Conservatorship
•
Available for incapacitated adult.
• A circuit court proceeding and expert evaluation
report
• Ongoing authority for long term medical decision
making and financial management, often including
public benefits management.
• Requires at least a seven day delay from mail notice
to family members before a hearing can be scheduled,
except for good cause shown.
Guardianship and Conservatorship
•
A guardian is responsible for health care and living
arrangements.
• A conservator is responsible for financial and property
management.
• Both must “give bond.” However, a “surety” (insurance)
company is not required for a guardian. A conservator
must generally have a surety, at least when the
incapacitated person’s estate is valued at more than
$15,000. This often means that a family member with
a criminal or poor credit history cannot serve as
conservator.
Guardianship and Conservatorship
•
Applicable statutes.
• ThompsonMcMullan questionnaire for
guardianship and conservatorship.
• Article describing procedures and what to expect in a
typical Virginia conservatorship and guardianship
proceeding.
• Virginia Guardianship Association Conference
July 26, 2012 at the Wyndham Richmond Airport
Guardianship and Conservatorship
• Confidentiality issues.
• The health care provider preparing an evaluation
report in a guardianship / conservatorship proceeding
shall be immune from civil liability for any breach of
patient confidentiality made in furtherance of his duties
under Va. Code § 37.2 -1005.
•
•
What are the “duties” of a health care provider under the
statute?
Assuming that there is a “duty” to make such a report, to
whom may it be given without exceeding the immunity grant?
Guardianship and Conservatorship:
Confidentiality
• Va. Code § 32.1-127.1:03, Health Records Privacy.
Health care entities may, and, when required by other
provisions of state law, shall, disclose health records in
certain circumstances without patient consent, as
follows.
Guardianship and Conservatorship:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(7):
“Where necessary in connection with the care of the
individual;”
•
Arguably sufficient for all cases of incapacity in
which there is no other surrogate available or known to
act.
Guardianship and Conservatorship:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(8):
“In connection with the health care entity's own health
care operations or the health care operations of
another health care entity, as specified in 45 C.F.R. §
164.501;”
• Applicable when the hospital or physician is the
moving party for the appointment of the guardian, see
45 C.F.R. § 164.501 Health Care Operations (4) relating
to conduct of legal proceedings.
Guardianship and Conservatorship:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(10):
“When examination and evaluation of an individual are
undertaken pursuant to judicial or administrative law
order, but only to the extent as required by such order.”
Guardianship and Conservatorship:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(11):
“To the guardian ad litem and any attorney representing
the respondent in the course of a guardianship
proceeding of an adult patient who is the respondent
in a [guardianship / conservatorship] proceeding
under Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2.”
Guardianship and Conservatorship:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(12):
“To the guardian ad litem and any attorney appointed by
the court to represent an individual who is or has been
a patient who is the subject of a commitment
proceeding …or … a judicial authorization for
treatment proceeding pursuant to …. Title 37.2;”
Guardianship and Conservatorship:
Confidentiality
Va. Code § 32.1-127.1:03 (D)(24):
“If the health records are those of a … mentally incapacitated
individual to the … the legal guardian or committee of the
incompetent or incapacitated individual or if there is no ….
legal guardian or committee appointed, to the following
persons in the following order of priority: a spouse, an
adult son or daughter, either parent, an adult brother or
sister, or any other relative of the deceased individual in
order of blood relationship.”
•
Note the italicized reference only to deceased individual.
Medicaid for Nursing Home
Discharge
Discharge Medicaid Basics
For nursing home Medicaid, six tests:
1. Citizenship / identity
2. Age 65 or Older or disabled
3. Prescreening test (UAI)
4. Resources under $2,000 (unless married)
5. Income <= $2,084 / month (300% SSI)
6. No disqualifying transfers of assets within 60
months preceding Medicaid application
Discharge Medicaid Basics
Special Rules For Institutionalized Spouse With
Community Spouse.
• Home and all contiguous real estate exempt
regardless of value.
• ½ of all “countable resources” of both spouses
excluded for community spouse, but at least $22,278,
“capped” at $113,640 (in 2012).
• With proper planning all assets of both spouses can be
protected for the community spouse, disabled child, or
any disabled person (including either spouse) under
the age of 65 regardless of the “cap.”
Discharge Medicaid Basics
All real estate can be permanently or temporarily
excluded as a Medicaid “countable resource” through
such devices as:
•
Exclusion as home property
• Making reasonable effort to sell
• Transfer to exempt person (minor or disabled child,
trust for disabled person under 65 (or disabled or
minor child)
Discharge Medicaid Basics
Medicaid Resources Online
•
•
•
•
•
Medicaid Planning 2012 Through Transmittal 96
update 4 (3-1-2012)
Medicaid and Trusts 2008
Medicaid application – Online format
Medicaid application – Adobe format
Virginia Medicaid Manual