Public Health Law Map - Beta 5 - Medical and Public Health Law Site

(C) in the case of a home health agency, in advance of the individual coming under
the care of the agency,
(D) in the case of a hospice program, at the time of initial receipt of hospice care by
the individual from the program, and
(E) in the case of an eligible organization … [HMOs and certain other managed
care providers] at the time of enrollment of the individual with the organization.
(3) In this subsection, the term “advance directive” means a written instruction,
such as a living will or durable power of attorney for medical care, recognized
under State law (whether statutory or as recognized by the courts of the State) and
relating to the provision of such care when the individual is incapacitated.
(1395cc(f)) [Cotton P. Providers to advise of “medical Miranda.” JAMA.
1991;265:306.]
4. Complying with a Patient’s Refusal of Care
The American legal system is based on achieving politically acceptable rules within
the limits posed by the Constitution. The courts are loath to interfere in the medical
care decisions of competent adults, a product of the high value placed on patient
autonomy. It also reflects judicial economy. Unlike attorneys, judges prefer to
minimize the number and types of disputes that must be judicially resolved. The
courts will upset the decision of a competent patient only when other stakeholders
present a compelling argument for overriding the patient’s interests.
Once patients have indicated their desires in a living will or by a surrogate decision
maker appointed by a power of attorney, physicians should heed these instructions.
Unnecessarily delaying the termination of life support, or forcing unwanted life
support while contesting the patient’s decisions in court is legally risky.
a) The Role of Courts
Until recently, decisions about the withdrawal or withholding of death- delaying
treatment were debated by ethicists and civil libertarians but were not a
fundamental problem for practicing physicians. Decisions were made, the courts
were seldom involved, and there were few malpractice lawsuits or criminal
prosecutions. With the advent of DRGs and other forms of prospective payment, the
general public is beginning to be concerned that medical care providers are doing
less for patients for whom it is financially rewarding to do less. This erosion of
public confidence, combined with the real pressure on physicians to do less for
DRG patients, makes it imperative that decisions that will lead to premature death
be carried out in a legally impeccable manner. Ultimately, adhering to legal
principle is the best defense against administrative pressures to compromise patient
care for the sake of optimal reimbursement.
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