Florida Elder Law & Estate Planning Blog

When advance directives are ignored


When we discuss end-of-life wishes with clients, some clients say they want everything possible done to keep them alive, regardless of their physical condition or possible outcome. If they can hang on for a while longer, they reason, there might be some medical advance around the corner that restores their health. If that is your inclination, you have every right to direct your health care providers to pull out all the stops.

On the other hand, you also have the right to reject extraordinary medical procedures that could result in what you consider an unacceptable quality of life. Our law firm’s experience is that¬† this attitude is far more common. But disturbingly, according to an April 10, 2017 New York Times article, the right to refuse medical treatment is sometimes not honored, even when patients have made the appropriate legal preparations. The logic of many medical providers seems to be to err on the side of caution: After all, someone who has been resuscitated can be disconnected from life support, but you can’t bring someone back from death.

One instance mentioned in the article is that of Beatrice Weisman. In 2013, at age 83, Weisman was hospitalized after having a severe stroke. A resident of Maryland, she had a Physician’s Order for Life Sustaining Treatment, or POLST. (POLST is under development in Florida but not yet available here. In states that do permit them, a seriously ill or frail patient or his/her health care surrogate may establish, in consultation with the individual’s doctors, guidelines for the types of treatments the patient should or should not receive. The POLST is different from the advance directives now available in Florida because it is an actual physician’s medical order, an official part of the patient’s medical record.)

Weisman’s POLST indicated she was not to receive CPR in the event of pulmonary or coronary failure. It was located in her medical chart at her bedside. Nonetheless, when hospital staff found her in bed turning blue, they rushed to save her. She was defibrillated and received epinephrine injections. Several of her ribs were broken during the administration of CPR. Weisman survived. After a few years of physical therapy and round-the-clock care – paid for out-of-pocket by her family – she remains bedbound, attached to a feeding tube and catheters, and suffering from dementia. The family has sued the hospital for keeping her alive against her express wishes. Says her son: “I’m happy to see my mother each day, but I’m also seeing her suffer each day.”

As we live longer and longer, it is inevitable that more cases of this type will occur. The courts seem inclined to side with plaintiffs. For example, the Georgia Supreme Court recently rejected a hospital’s claim of immunity, stating, “It is the will of the patient or her designated agent, and not the will of the health care provider, that controls.”

Of course, being revived against one’s wishes is not always a function of overeager doctors and hospital staff.¬† It is all too common for a healthy person to have a valid living will prepared, yet fail to notify his/her family or health care agent that it exists, or where it can be found. Many people just stick it in a file cabinet or lock it up in a bank vault, and forget about it. And once someone becomes cognitively incapacitated, he/she may not be able to tell others that the document even exists.

Your best bet to ensure your end-of-life wishes are honored is to make sure your physicians, family, friends and health care agent know about your advance directives, where they are located, and how they can be accessed. Some suggest downloading the documents to your mobile phone and to your loved ones’ mobile phones, too.

Read about the various types of Florida advance directives here.

Read the original New York Times article on this subject here.

Read about the POLST form, currently in the planning stages in Florida, here.