Question: My wife and I have Health Care Proxies for each other but I just heard that paramedics often ignore them. Is this true?
As is often the case, there is a legal answer and a practical answer. Legally, all health care providers, including paramedics, are bound to follow the instructions of the individual named in the Health Care Proxy. The practical reality is they often do not.
First a little background. The Health Care Proxy is a document authorized by the state by which you choose an individual and a back-up to make health care decisions on your behalf in the event you are unable to do so, for example, in the event of incompetence, coma or unconsciousness after an accident. When you are in such a state, the person you designate - your health care agent - speaks for you as if you were speaking yourself. In other words, from the legal perspective, whether it’s refusing treatment or choosing a certain kind of treatment, the health care provider must follow the directions of your health care agent.
Since it is the goal of the health care proxy to enable your health care agent, most often a spouse, close family member or trusted friend, to be able to make such decisions when needed, there are two very important issues on which I advise my clients. First, you must thoroughly discuss your wishes with your health care agent and back-up agent. Since he or she will, essentially, be speaking with your voice, it is necessary that they know, as much as possible, what your wishes would be in certain situations. This can be anywhere from, "I want no life support of any kind whatsoever!" all the way to, "keep me alive at any cost; freeze me if you have to until they find a cure!"
The corollary to this freedom of choice advice is to avoid the temptation of putting specific instructions in writing on your health care proxy or otherwise. If the doctor disagrees with your family member as to how to interpret your instructions, guess who will win that argument. That is a recipe for ending up in court. The disagreement about the meaning of the phrase, "if I have no reasonable chance of survival" is a litigation lawyer’s dream.
This background gives us a picture of the health care proxy law. A recent chilling incident can show us the practical side as it can apply to paramedics. My phone rang at about 3:00 in the morning - never a good sign. First relieved that the number was neither my father’s nor my daughters’, I picked up the phone only to find that there was a client in extreme distress. (Please, if you are a client of mine, middle of the night calls are reserved for those in extreme distress.) Her husband, in his nineties, had been short of breath. They dialed 911, the police and paramedics came and now he was in cardiac arrest. She knew that his wishes were that there be no attempts at resuscitation. Despite the fact that his wife had a valid Health Care Proxy and clearly stated her husband’s wishes, the paramedics continued their efforts at revival. I got on the phone with the police lieutenant on the scene and it was only after I "patiently" but urgently explained the law and how they were obligated to follow the directions of the health care agent that she finally relented and called off the activity. Only then was our elderly client allowed to die at home in peace as he wished.
Since you can’t always depend on being able to reach your lawyer in the middle of the night, I consulted with one of our firm’s attorneys, Mark T. Starkman, who was a paramedic before becoming an attorney. You may have heard of Mark in the news who recently used his quick thinking and experience to save the life of one of our clients. While Mark, in his incarnation as a paramedic, was aware that a Health Care Proxy must be honored, he also stated that common sense must prevail. This would indicate that, at times, circumstances may warrant the paramedics’ using their own judgment despite instructions from the health care agent. In many cases, once on the scene, paramedics believe that they are obligated to do their job and attempt resuscitation.
Bearing this all in mind and knowing that crisis situations are often not the best for making quick decisions concerning someone else’s life, we would all do well to include these types of emergencies in our Health Care Proxy discussions, well before we are faced with making such decisions.
Sanford R. Altman is an Elder Law Attorney with a firm in Orange, Dutchess and Sullivan Counties, a member attorney of the AARP Legal Services Network, a member of National Academy of Elder Law Attorneys (NAELA), and frequently writes on Elder Law issues for local publications. He may be reached at the following number (845) 778-2121. Please note that while this column is intended to give general legal information, everyone’s circumstances differ. This column is not a substitute for obtaining legal advice directly from an attorney which will address your particular circumstances.