San Antonio Express-News
Copyright 2009, Paul Premack
September 29, 2009

Advance Medical Directives:
When Facilities are Unwilling or Unable to Comply

Dear Mr. Premack: My wife recently had an outpatient surgical procedure in a local surgical center that “does not routinely perform ‘high-risk’ procedures.” In order to receive the surgery, she had to sign a statement that if an adverse event occurs “(This facility) has a policy that resuscitative and or stabilizing measures will be initiated and a transfer to an acute care facility will ensue. The withdrawal of treatment measures that began at (this facility) will be ordered in accordance with Advance Directives, Living Will, or health care Power of Attorney after admission to an acute care facility.” Is this policy appropriate and legal? It seems to me if the facility takes measures that stabilize you in some irreversible vegetative state that they have negated the intent of your Advance Directive or other instrument. How do they know that the facility they transfer you to will choose to follow your directive? - FKB

Advance Medical Directives are controlled and implemented under a statute in the Texas Health and Safety Code. The law requires that a wide variety of medical facilities disclose, in writing, their exact policy about honoring the terms of a patient’s Advance Directives. The notice must be given when the individual is admitted to the facility or at the time that services are provided to the patient, whichever is sooner.

If the facility is unable or unwilling to provide or withhold a medical procedure (involving life support) it must be disclosed in the written policy. The patient then, at least theoretically, has the option of refusing to use that facility if it cannot meet the patient’s needs or cannot comply with the patient’s Advance Directives. If an event occurs, the facility must provide life-sustaining treatment until the patient can be transferred to a different facility that is willing to comply with the advance directive. The facility to which they transfer you must be one that will follow your directive.

Oddly, the law excuses outpatient hospital services (including emergency outpatient services) from the requirement of providing notice. Likely the outpatient surgical center your wife used was not required to tell her about their inability to comply with her Advance Directive, but did so anyway.

Unlike other choices we make, as medical patients we are often not bona fide consumers making fully informed choices. When insurance or Medicare are going to paying the bill (or when our lives are threatened) do we even ask the costs of a proposed medical procedure? If we ask, the doctor may have no idea of the cost – that is something for the back office, not the doctor. If the doctor uses a specific facility for outpatient surgery, we accept that choice without investigating the facility or its policies in advance. These important details are too often withheld until it is too late to back out.

That is why it is important to become informed by asking questions ahead of any medical procedure. If your doctor is too busy, ask the nursing staff or those who work in the back office. If you will be having a procedure done, ask about the facility and its policies. Ask where you will be transferred if something goes wrong. Be sure you have a Medical Power of Attorney appointing a legal representative for you, so if you become incapable of asking these important questions you have someone with authority to stand between you and the facility.

This particular outpatient facility’s policy was indeed legal, but is certainly not appropriate. If they accept a patient for a procedure that could result resuscitative and/or stabilizing measures, they should be prepared to honor the individual choices of the patient. Instead, they choose to pass the patient off to an acute care facility. At that second facility, the patient’s Advance Directive must be followed – but at greater cost, delay, and with more distress than if the outpatient facility would agree to adhere to the patient’s wishes. The best choice is to be an informed patient and to use your clout as a consumer to insist that your Advanced Directives be honored.