Advance directive: Gotta do it, like it or not
October 1, 2021 | View PDF
I used to do a lot of litigation – trial lawyer work – and I still read the decisions the Alaska Supreme Court sends out each week. There was one this spring which had me shaking my head in amazement, and which sent me back down the memory trail, to a case I handled.
The year was 2008. An Anchorage woman had choked on some food, suffered anoxia – a temporary loss of oxygen to the brain – and fell into a coma. A mere nine days later, the hospital decided that her chances of survival were nonexistent, and that her life support should be removed. At this point she was not “brain-dead”, she still had brainwave activity, but she was in a coma and the neurologists believed it would be permanent.
The patient had a husband, and he thought they should wait a bit longer, to give her a chance to recover. Disagreeing, the hospital disconnected the life support. It was after hours when it happened.
And this is where it got weird. The husband knew an attorney, and the attorney knew how to find a judge’s home address (I’m not going to say how, or every judge in Anchorage is going to become my enemy). The attorney showed up on the judge’s doorstep in the middle of the night, asking for an emergency order to temporarily continue life support. The judge was not very happy about it, but he granted the order and set a hearing.
At this point the attorney contacted me and asked if I would join him as co-counsel on the case, which I did. It was not an easy case. Judge Grumpy, apparently not happy to have been aroused so late, took it out on us and made it extraordinarily difficult to present our case. Among other things he kept setting hearings a short while out, and then moving up the dates, making it impossible for us to arrange for an independent medical evaluation. Then he would chew us out at the hearing for not having the evaluation yet.
Eventually the judge ruled against us. We took an expedited appeal to the Alaska Supreme Court, which reversed the decision on technical grounds, and sent it back to the trial judge to re-hear the matter.
And then the second strange thing happened: Despite five neurologists insisting that the patient would never wake up, she woke up. At that point the litigation was “amicably resolved”.
The case had an effect on me. The woman in question did not have an advance health care directive. I felt that if she had had an advance directive, the entire case would have likely been unnecessary. And so I became an evangelist for having an advance directive. I have told literally thousands of people that they should have one. I often tell them that it doesn’t matter to me whether they want life support removed if they have so much as a hangnail, or if they want to be kept on life support until there’s nothing left but a skeleton, as long as it reflects their wishes.
And I sometimes wondered whether it would take a major lawsuit against a hospital to really get them to pay attention. Well, it happened.
I wasn’t involved in the case that came out this spring. I won’t tell you the name of the hospital, because the facts in these cases are always complicated, and I don’t want the medical providers to feel that they have to respond to this column in order to protect their reputations. But this is straight from the Alaska Supreme Court.
The patient in this case did, in fact, have an advance health care directive. It named his mother as his health care agent, that is to say the person who was authorized to make medical decisions for him. He had a bad reaction to some medications the doctors put him on, and at one point he was even catatonic. His mother wanted him taken off the medications which, she believed, had caused his condition to deteriorate.
The hospital disagreed and believed he should stay on those medications. Instead of taking the legal steps they could have taken, the hospital declared that the medical team would now be making all of his decisions, and they would be ignoring his mother’s directives.
Eventually the patient’s medical issues got sorted out, and he was moved out of the hospital. He then sued the hospital for not following his mother’s directions. The hospital asked the trial judge for “summary judgment” – a determination that even if the facts are as the plaintiff claims, the defendant would still win. The judge granted the hospital’s motion and threw out the case.
But the Alaska Supreme Court reversed and sent it back down. The hospital, and the judge, had relied on a section of the Alaska Health Care Decisions Act which, in their interpretation, meant that the hospital could not be sued as long as it had acted in good faith. But the Supreme Court pointed out that the statute only gave them immunity if they were acting in good faith in regard to who is entitled to make the decision. The hospital, it said, was trying to broaden the statute to effectively mean that no one could ever sue a hospital as long as it believed it was doing what was best for the patient.
But that is not what the Alaska Health Care Decisions Act calls for. The Act, the Supreme Court pointed out, was specifically intended to strengthen the right of patients, and those acting on their behalf, to make their own health care decisions. The hospital’s interpretation would have weakened patients’ rights to self-determination.
So having an advance directive matters.
If you don’t already have an advance health care directive, get one. You can print one out for free from my website, KirkAlaska.com. Or get another one, there are plenty of perfectly good versions floating around out there. But get one from somewhere.
Because you don’t want to be the subject of one of these cases. Trust me, you don’t.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Are you still sitting here reading this? Go get a directive in place.