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One of the defining principles of hospice care is respect for the wishes of terminally ill patients. Increasingly, non-compliance by a healthcare provider with these directives can now result in litigation or regulatory fines.

These issues come into play when a healthcare provider doesn’t stick to a patient’s advance treatment plan. This may prevent or delay the provision of hospice care to individuals who choose to receive it.

Some refer to such cases as “wrongful litigation” when they occur in the courts, although “wrongful revival” may be a more accurate term.

“The courts were for a long time immune to these claims because they could not conceptually understand how the patient suffered if we literally saved his life. But now we understand that people can make choices,” Thaddeus Pope, Mitchell Hamline Law School professor, told Hospice News. “The chance of success in 2022 is higher than five years ago.”

According to Pope, the alleged violations could be due to negligence or error. The doctor may not realize that he is acting against the wishes of the patients due to insufficient training, errors in documentation, or failures in the process.

In other cases, the health care provider is acting on purpose. They know that the patient’s wishes were documented, but chose to ignore them.

Although there can be many reasons for this, one of the most common reasons is that the clinician felt that the advance directive was not applicable to the patients’ current situation.

For example, if a patient who decides to forego life-prolonging treatment or resuscitation due to terminal cancer is brought to the emergency department for another reason, such as a heart attack, staff may assume that their documented wishes are not applicable in those other circumstances. , Papa said in an interview with Hospice News.

According to Dr. Dan Morhaime, retired emergency room physician and Maryland State Delegate, educating health care providers about advance care planning and related legal issues is essential.

“You need to train your staff right now — administrators, nurses, doctors, clerks, everyone,” Morhaime told Hospice News. “They need to recognize this and engage services like hospice and palliative care early on, not at the very end, because they will alleviate a lot of that burden.”

Whereas in the past such trials have rarely resulted in harsh sentences, this appears to be changing.

The California case resulted in a $200,000 judgment for the patient’s family, as well as a subsequent $1 million settlement in a related civil rights lawsuit.

In this case, the courts found that the local agency, Humboldt County Adult Protective Services, acted fraudulently in filing a petition for health care decisions for an elderly and terminally ill patient who opted for palliative care.

The patient was forced to take certain medications against his documented desire, and his wife was removed from his designated decision maker.

“To sum up, Humboldt was not just negligent in preparing his petition and request for an involuntary treatment order under the Health Care Decisions Act; he knowingly and deliberately distorted both the law and the facts in the court of first instance,” the court concluded. “In any case, we would consider such behavior disturbing. In this context, we find this extremely worrisome.”

This is just one example of several court decisions in recent years against health care providers or other parties who have sought to ignore or override patient end-of-life directives, Morhaime said. According to him, in some of these cases, settlements or payments in the amount of hundreds of thousands or millions of dollars were made.

Effective documentation of end-of-life choices is associated with a higher likelihood of hospice admission and less intensive care even during a hospital stay, JAMA Network 2019. study found.

These factors can not only reduce health care costs, but can also help ensure that patients receive appropriate treatment in their last days of life. However, according to 2017 data, only about 45% of chronically ill patients documented their desires. research work on health issues.

Pope pointed out that a healthcare provider who does not comply with an advance directive could face consequences without even setting foot in a courtroom.

State and federal authorities, including the US Centers for Medicare and Medicaid Services (CMS), may impose regulatory sanctions or civil monetary penalties. Professional licensing boards also have the power to penalize physicians for ignoring advance treatment plans.

“You have to ask if patients have an advance directive and then make sure everything in an advance directive is on the card or electronic health record,” Pope told Hospice News. “You have to make sure the records and the current orders are in line with the advance directive and make sure whoever is following the orders actually knows what those orders are.”

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