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AWARENESS OF THE LEGAL IMPLICATIONS OF AGING

AWARENESS OF THE LEGAL IMPLICATIONS OF AGING. SUSAN BLASIK-MILLER, ESQ. LEGAL DOCUMENTS. WHAT CONSTITUTES A “LEGAL” DOCUMENT?. PATIENT BILL OF RIGHTS. EVERY HOSPITAL HAS A PRINTED PATIENT BILL OF RIGHTS. MANY INCLUDE THE SAME OR SIMILAR PROMISES TO PATIENTS.

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AWARENESS OF THE LEGAL IMPLICATIONS OF AGING

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  1. AWARENESS OF THE LEGAL IMPLICATIONS OF AGING SUSAN BLASIK-MILLER, ESQ.

  2. LEGAL DOCUMENTS WHAT CONSTITUTES A “LEGAL” DOCUMENT?

  3. PATIENT BILL OF RIGHTS • EVERY HOSPITAL HAS A PRINTED PATIENT BILL OF RIGHTS. • MANY INCLUDE THE SAME OR SIMILAR PROMISES TO PATIENTS. • BY FEDERAL LAW HOSPITALS MUST HAVE A PATIENT BILL OF RIGHTS IN ORDER TO PARTICIPATE IN MEDICARE & MEDICAID.

  4. EXAMPLES OF PROMISES MADE IN PATIENT BILL OF RIGHTS • THE RIGHT TO PARTICIPATE IN ALL TREATMENT SERVICES REGARDLESS OF … AGE… • TO RECEIVE CURRENT INFORMATION REGARDING YOUR CONDITION. • TO PARTICIPATE IN PLANNING AND IMPLEMENTING YOUR TREATMENT PROGRAM.

  5. EXAMPLES OF PROMISES MADE IN PATIENT BILL OF RIGHTS, cont. • MAINTENANCE OF CONFIDENTIALITY OF YOUR CLINICAL RECORD. • REASONABLE RESOURCES TO FACILITATE COMMUNICATIONS.

  6. EXAMPLES OF PROMISES MADE IN PATIENT BILL OF RIGHTS, cont. • TO HAVE AN ADVANCE DIRECTIVE: • LIVING WILL • HEALTH CARE PROXY • HEALTH CARE POWER OF ATTORNEY, OR • DNR • HAVE PROVIDERS COMPLY WITH THESE DIRECTIVES

  7. INFORMED CONSENT • OHIO REVISED CODE 2317.54 • CODE OF FEDERAL REGULATIONS (CFR) • 42 CFR 482.13(b)(2), 482.24(c)(2)(v), 482.51(b)(2)

  8. LACK OF INFORMED CONSENT, cont. • (A) THE PHYSICIAN FAILS TO DISCLOSE TO THE PATIENT AND DISCUSS THE MATERIAL RISKS AND DANGERS INHERENTLY AND POTENTIALLY INVOLVED WITH RESPECT TO PROPOSED THERAPY;

  9. LACK OF INFORMED CONSENT, cont. • (B) THE UNREVEALED RISKS AND DANGERS WHICH SHOULD HAVE BEEN DISCLOSED BY THE PHYSICIAN ACTUALLY MATERIALIZE AND ARE THE PROXIMATE CAUSE OF THE INJURY TO THE PATIENT; • AND

  10. LACK OF INFORMED CONSENT, cont. • (C) A REASONABLE PERSON IN THE POSITION OF THE PATIENT WOULD HAVE DECIDED AGAINST THE THERAPY HAD THE MATERIAL RISKS AND DANGERS INHERENT AND INCIDENTAL TO TREATMENT BEEN DISCLOSED TO HIM OR HER PRIOR TO THE THERAPY. • NICKELL V. GONZALEZ (1985), 17 OHIO ST.3D 136

  11. PROTECTION AFFORDED BY O.R.C. 2317.54 • WRITTEN CONSENT TO A SURGICAL OR MEDICAL PROCEDURE … SHALL: • TO THE EXTENT IT FULFILLS THE REQUIREMENTS IN DIVISION (A), (B) AND (C)…, • BE PRESUMED TO BE VALID AND EFFECTIVE, IN THE ABSENCE OF PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT THE PERSON WHO SOUGHT SUCH CONSENT WAS NOT ACTING IN GOOD FAITH, OR THAT THE EXECUTION . . .

  12. PROTECTION AFFORDED BYO.R.C. 2317.54, cont. • …WAS INDUCED BY FRAUDULENT MISREPRESENTATION OF MATERIALS FACTS, OR • THAT THE PERSON EXECUTING THE CONSENT WAS NOT ABLE TO COMMUNICATE EFFECTIVELY…

  13. PROTECTION AFFORDED BYO.R.C. 2317.54, cont. • HYPOTHETICAL: WHAT IF THE NURSE HAS THE PATIENT SIGN THE CONSENT BUT THE MEDICATION RECORD SHOWS THE PATIENT HAD RECEIVED PAIN MEDICATION OR A SEDATIVE PRIOR TO SIGNING THE CONSENT?

  14. WHO CAN GIVE CONSENT? • . . . the patient . . ., or by a person who has legal authority to consent on behalf of such patient, if the patient lacks legal capacity to consent for any reason including, but not limited to, the following: • competence • minority, or • the fact that, at the latest time that the consent is needed, the patient is under the influence of: • Alcohol • hallucinogens, or • Drugs • O.R.C. 2317.54.

  15. THE LEGAL AUTHORITY COMES FROM SUCH DOCUMENTS AS: • DURABLE POWER OF HEALTH CARE • PATIENT’S DESIGNATION OF WHO HAS THE LEGAL AUTHORITY TO SPEAK ON HIS/HER BEHALF RE: MEDICAL DECISIONS. • LIVING WILL (THE PATIENT’S METHOD OF SPEAKING FOR HIM/HERSELF).

  16. STATE OF OHIO LIVING WILL • THE PURPOSE OF THIS LIVING WILL DECLARATION IS TO: • DOCUMENT WISH THAT LIFE-SUSTAINING TREATMENT, INCLUDING ARTIFICIALLY OR TECHNOLOGICALLY SUPPLIED NUTRITION AND HYDRATION, BE WITHHELD OR WITHDRAWN IF YOU ARE UNABLE TO MAKE INFORMED MEDICAL DECISION AND ARE IN A TERMINAL CONDITION OR IN A PERMANENTLY UNCONSCIOUS STATE.

  17. STATE OF OHIO LIVING WILL, cont. • THE LIVING WILL CONTAINS A PLACE FOR PEOPLE TO BE NOTIFIED. • THIS IS NOT THE SAME AS IDENTIFYING PEOPLE WHO CAN SPEAK ON BEHALF OF THE PATIENT.

  18. STATE OF OHIO HEALTH CARE POWER OF ATTORNEY • ONLY TAKES EFFECT IF THE PATIENT CANNOT MAKE HEALTH CARE DECISIONS FOR HIM/HERSELF. • MANY PATIENTS, FAMILY MEMBERS, AND SOME HEALTH CARE PROVIDERS MISTAKENLY INTERPRET A HEALTH CARE POA TO MEAN THAT THE DESIGNATED PERSON CAN MAKE DECISIONS AT ANY TIME.

  19. DOCUMENTATION • ELECTRONIC MEDICAL RECORDS HAVE PROS AND CONS. • DO NOT CUT AND PASTE CONSENT ISSUES WHICH ARE NOT RELEVANT.

  20. AT WHAT AGE DOES A PATIENT LOSE THE ABILITY TO CONSENT FOR HIS OR HER OWN MEDICAL TREATMENT?

  21. EXAMPLE • PATIENT OF DR. R. SINCE 1968. • SAW ANOTHER DOCTOR IN 1983 FOR 2ND OPINION OF 4 CM. SOLID MASS ON LEFT OVARY. • COULD NOT VISUALIZE THE LEFT OVARY DUE TO ADHESIONS. RIGHT OVARY VISUALIZED AND NORMAL.

  22. EXAMPLE, cont. • 1996 VAG. ULTRASOUND SHOWS A NORMAL LEFT OVARY, RIGHT OVARY NOT WELL VISUALIZED. UTERUS HAS A MASS, PATIENT DECLINED SURGERY. • 1997 ONCE AGAIN RECOMMENDED HYSTERECTOMY.

  23. EXAMPLE, cont. • MAY 2000 (PT NOW AGE 55) RECOMMENDED HYSTERECTOMY ONCE AGAIN. • JUNE 2000 TVH WITH RIGHT SALPINGO-OOPHORECTOMY, COULD NOT VISUALIZE OR PALPATE LEFT OVARY. • MARCH 2001 US FOR GALLSTONES REPORTS PROBABLE CYSTIC AREA IN VICINITY OF LEFT OVARY.

  24. EXAMPLE, cont. • APRIL 2001 DIAGNOSED WITH MULTIPLE MASSES. • STAGE III OVARIAN CANCER.

  25. ISSUE • WHAT DISCUSSION NEEDED TO HAVE TAKEN PLACE AFTER THE HYSTERECTOMY WHEN THE SURGEON WAS UNABLE TO LOCATE AND REMOVE THE LEFT OVARY? • WAS THE PATIENT PROPERLY INFORMED OF THE RISK OF LEAVING ONE OVARY? AND DID THAT RISK MATERIALIZE AND CAUSE THE PROBLEM THE DOCTOR FAILED TO DISCUSS?

  26. WHAT IF THERE IS NO LEGAL DOCUMENT? • AS TO AUTHORITY TO CONSENT AND NEXT OF KIN, THE LAW DOES NOT: • DESIGNATE A HIERARCH OF NEXT OF KIN • DOES NOT RECOGNIZE NEXT OF KIN AS AUTOMATICALLY HAVING AUTHORITY • THERE IS NO RECOGNIZED HIERARCHY OF NEXT OF KIN FOR CONSENT.

  27. AGE AND SEXUALITY • PATIENTS HAVE THE RIGHT TO MAINTAIN THEIR SEXUAL FUNCTIONING. • REGARDLESS OF AGE, THE RISK OF CERTAIN MEDICATIONS AND PROCEDURES ON SEXUAL FUNCTION SHOULD BE DISCUSSED AND DOCUMENTED.

  28. END OF LIFE DECISIONS • THE PATIENT HAS THE RIGHT TO MAKE HIS OR HER OWN DECISIONS UNLESS MEETS THE CRITERIA IN R.C. 2317.54. • IF THERE IS A LIVING WILL, IT NEEDS TO BE HONORED BECAUSE IT IS THE PATIENT’S EXPRESSION OF HIS OR HER DECISION. • BE CAREFUL IF GOING TO ALLOW DURABLE POA TO OVERRIDE OR CONTRADICT LIVING WILL BECAUSE MAY OPEN CLAIM FROM OTHER FAMILY MEMBERS.

  29. END OF LIFE DECISIONS, cont. • HEALTH CARE PROVIDERS NEED TO DOCUMENT THE BASIS FOR WHY THE PATIENT’S CONDITION DEMONSTRATED COMPETENCE (OR LACK OF) TO MAKE MEDICAL DECISIONS, INCLUDING END OF LIFE DECISIONS.

  30. FOR QUESTIONS OR COMMENTS,PLEASE CONTACT:SUSAN BLASIK-MILLERsblasikmiller@ffalaw.com937.222.2424 THANK YOU

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