Business <\/p>\n
About four years ago, Dr. Gene Dorio sat on the ethics committee of a Southern California hospital whose administrators insisted they could decide whether to disconnect a ventilator from an unconscious patient \u2014 even though the man\u2019s wife and adult children wanted to continue life support.<\/p>\n
The problem, Dorio told California lawmakers last year, was the hospital had the right to override the family\u2019s wishes because the patient had not completed an advance directive or designated a power of attorney. The hospital chose to listen to the family, but under state law, his family\u2019s wishes held no weight.<\/p>\n
That\u2019s no longer the case. As of Jan. 1, California joined 45 other states and the District of Columbia with next-of-kin laws that designate a surrogate to make decisions on a patient\u2019s behalf \u2014 even if that person wasn\u2019t specifically authorized by the patient before the medical situation arose. The list includes spouses or domestic partners, siblings, adult children and grandchildren, parents, and an adult relative or close friend \u2014 in many cases, the people who brought in the patient for care in the first place.<\/p>\n
\u201cHospitals and HMOs could usurp the rights of the families to make critical medical decisions under the law that was in place at the time \u2014 including decisions on pulling the plug,\u201d Dorio, a geriatrics specialist in Santa Clarita and member of the California Senior Legislature<\/a>, told KHN. \u201cWe knew we needed a law like most other states have.\u201d<\/p>\n According to data analyzed by Penn Medicine researchers<\/a>, only about a third<\/a> of U.S. adults have either an advance directive, with which they detail instructions about medical care, or a medical power of attorney, which authorizes someone else to make those decisions.<\/p>\n The idea behind the next-of-kin law, proponents say, is to empower representatives to advocate for patients rather than allow a hospital to make medical decisions, which can be influenced by cost, bed space, or insurance pressures.<\/p>\n \u201cThis law takes the pressure off the hospitals, who are being asked to render care, save lives, deal with Medicare, deal with insurance \u2014 any number of things all at once,\u201d said Michele Mann, a Valencia, California, attorney who specializes in estate planning, including advance directives.<\/p>\n Patient medical rights have evolved through the years, but it is something of a mystery why the state took so long to put a next-of-kin statute on the books. When the California Senior Legislature, which sponsors and lobbies for laws aimed at helping the state\u2019s older population, approached the state\u2019s Office of the Legislative Counsel for help with the bill, Dorio said, some staff attorneys expressed surprise that such a law wasn\u2019t already in place.<\/p>\n Patients without an advance directive or power of attorney have long been able to designate a surrogate, even if it\u2019s simply by verbally declaring so while at the hospital \u2013 but that relies upon the patient being conscious.<\/p>\n If patients arrive at a hospital or medical center incapacitated or later become so, providers must make a good-faith effort to find a person authorized to make medical decisions, according to a California statute in effect since 2005. The steps include<\/a> going through the patient\u2019s belongings and reaching out to anyone the hospital \u201creasonably believes has the authority\u201d to make decisions via directive or power of attorney. The hospital must show it has contacted the secretary of state to ask whether the patient had an advance directive.<\/p>\n With the new law in place, health care providers still must check for a patient\u2019s advance directive or power of attorney. But once officials have determined that none exists, they can turn to the next-of-kin list, all of whom are legally authorized to speak for the patient.<\/p>\n \u201cIt\u2019s groundbreaking,\u201d said Mann, who makes decisions for her sister, a patient with multiple sclerosis in a long-term care facility. \u201cWith the next-of-kin list, often the person who brought the patient in is a family member or close friend with a clear understanding of the patient\u2019s wishes. In those cases, the hospital\u2019s search is over \u2014 a legally authorized representative is standing there.\u201d<\/p>\n AB 2338<\/a>, introduced by Assembly member Mike Gipson, added a section to the probate code, and it resembles the way most states handle the division of a person\u2019s assets after death. When people in California die without a will, their assets and property are distributed in a fixed, descending order of priority: spouse first, then children, parents, siblings, etc. Now, a person\u2019s medical decisions will be decided in the same way \u2014 but not necessarily in the same order.<\/p>\n California gives hospitals and health care providers the discretion to decide which family member or close friend can make medical decisions \u2014 a provision inserted into the bill after the influential California Hospital Association and other medical groups opposed a set hierarchy.<\/p>\n Some experts question how effective the new law will be, since hospitals retain the power to pick the patient\u2019s representative, especially if there are conflicting opinions among family members.<\/p>\n \u201cAlthough I have no reason to believe they would abuse the power, the hospitals get to decide who would be a good decision-maker,\u201d said Alexander Capron, a medical law and ethics expert and professor emeritus at the University of Southern California.<\/p>\n Lois Richardson, a vice president and legal counsel for the hospital association, said a strict order of surrogates often doesn\u2019t reflect what a patient would want. \u201cThe concern has always been that having a strict statutory hierarchy, in many, many cases, does not reflect real family relationships,\u201d Richardson said.<\/p>\n The hospital lobby dropped its opposition after Gipson agreed to give the industry flexibility, and the measure passed through the legislature with virtually no opposition.<\/p>\n Ideally, people should have an advance directive to ensure their wishes are followed, Gipson said. But for seniors, those who live alone, and anyone without a stated directive, the law opens the field of people who may be able to advocate on their behalf \u2014 including a close friend who might just as well be family.<\/p>\n \u201cAt least this way, you have someone who knows what you want making those decisions,\u201d Gipson said, \u201crather than leaving it up to a hospital.\u201d<\/p>\n This story was produced by KHN<\/a>, which publishes California Healthline<\/a>, an editorially independent service of the California Health Care Foundation<\/a>.<\/em><\/p>\n<\/p><\/div>\n