Dealing with Hospital staff for your loved one’s care

May 5th, 2014 written by Lance M. McKinney

As an Elder law attorney, I coach clients daily on how to negotiate our health care system for their loved ones.  I coach them on the legal system and teach them how to conduct themselves.  Recent events in my own family have refreshed my personal observations on what happens to your loved one going through these systems and health emergencies.


For context, my loved one was hospitalized for a number of days and then went to a skilled nursing home for rehabilitation.  While in the hospital, he was very sick and we were unsure if he would leave the hospital alive.  Prior to the hospitalization, my family member was totally independent and competent (hospital staff probably don’t retain that information even when told).  My family member had various levels and times of lucidity while in the hospital. Now that he is in a skilled nursing home for rehabilitation, he is recovering and we are working through those issues.


To avoid any confusion, let me say that our local health care provider gave the needed care and the experienced nursing staff were both kind, caring and attentive. In those first few days of hospitalization, we had various family members visit and stay with our loved one as much as possible.  Our loved one had some confusion and because the family was very involved, the medical staff involved the family in health care discussions and basically looked to the family to make decisions (both mostly proper and appreciated).  We produced the appropriate heath care surrogate designations and HIPAA releases.  And blissfully, there was no dispute about care amongst the family.  So what’s the point?


Multiple times, the nursing staff would look to one of our family members and ask, “What do you want us to do if he has a heart attack or stops breathing?”  This question is posed over and over to family members who have no framework to respond.  For us, our loved one was never determined to be incompetent.  Although he was frequently but temporarily confused, the hospital never had a doctor declare him to be incompetent to make medical decisions.  This means the right to make medical decisions was never officially shifted to his health care surrogate.  Additionally, the question posed was whether the hospital staff should try to save/treat our loved one if his heart or breathing stopped.  This is commonly referred to as a DNR or “Do Not Resuscitate Order”.  This type of withdraw of treatment either needs to come from the patient directly, or if coming from a surrogate decision maker, must be supported by a living will (written directions by the patient) and medical facts by two doctors that say, in short, that further treatment is medically futile.  None of these extra steps were taking place even though they were seeking direction from family and not the patient.


These are big decisions (sometimes clear and sometimes very difficult).  Why would the nursing staff skip these requirements?  It should be remembered that these medical personnel are daily required to deal with emergency situations and they seek information from multiple sources.  The nursing staff is also where the rubber meets the road (cliche I know but..appropriate).  They have seen the violence imposed on the frail elderly because of cardiac and respiratory failure. They have seen what happens when people hold on to a loved one past any medical ability to make a difference and I believe they are very pragmatic (not to be confused with “uncaring”).  So, when I politely pointed out that they should try everything possible until either the patient gives consent or they have the required physician opinions of medical futility and then family approval, I got unstated pressure or disbelief as to my response.  Even as a trained professional in this field, I felt pressure by the source and surrounding context of them just asking the question, to give a response of “just let him go” which was not supported legally or factually.


Fortunately, neither emergency cardiac or respiratory care was required for our loved one.  Other emergency care was required and provided well and to a good result.  If emergency cardiac or respiratory care was required, only God knows if it would have been successful or not.  I write this to give people a look into the practical pressures and events that you face with a loved one in the hospital,  and way to apply the legal requirements of substitute decision making in practice of a life and death decision on further medical care.  The medical providers have to ask the questions, you have to advocate and make the decisions.  It is helpful to know the legal framework to apply the facts of your specific case.


We can help you work through your specific circumstances, should you need help.  Call us at 239-939-4888 to discuss planning you can do for yourself or direction on how to help your loved one.

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