Assembly Bill 344 Physician Orders for Life-Sustaining Treatment Kelly Testolin Attorney at Law (775) 772-0375 kellytestolin@yahoo.com
What are Physician Orders for Life- Sustaining Treatment? A new type of advance directive National initiative, enacted in many other states Nevada has three existing types of advance directives – Declaration re withholding or withdrawal of life-sustaining treatment (NRS 449.610) – A Durable Power of Attorney for Health Care (NRS 162A.700) – A Do-Not-Resuscitate Order (NRS 450B.510)
4 Types of AD Declaration : Expresses patient desires re life- sustaining treatment when incapacitated and in terminal condition. POLST: Same. DNR: Same, but limited to certain cardio- resuscitation procedures and treatments and only in transport from emergency scene. DPOA : Designates “agent” to make almost all health care decisions when incapacitated, regardless of condition.
What is Required By AB 344? A “ provider of health care ” must assist patients with a “Physician’s Order for Life Sustaining Treatment” (POLST) by: Explaining the existence and availability of the POLST form – Explaining the features of and procedures offered by the POLST – form Explaining the differences between a POLST and the other – three types of advance directives. The provider must also “ complete the form based upon the preferences and medical indication of the patient .”
Who is a “provider of health care”? A very long list, as defined in NRS 629.031 But practically, only a physician or hospital that employs a physician
When does a physician have to do this? Whenever… - The physician diagnoses a patient with a terminal condition, - A physician determines, for any reason, that a patient has a life expectancy of less than five years; or - At the request of a patient.
Why This Law?????????? POLST does nothing that cannot be accomplished by a Declaration or a DPOA. Doctors are not expert, nor qualified to provide advice on Advance Directives. POLST voluntary in many other states, no duty to explain other forms of ADs
POLST Execution/Revocation POLST must be executed by the physician and: - Patient who is 18 and of sound mind, - Representative of incompetent patient, - Less than 18, parent or legal guardian. - Same for revocation.
POLST Revocation Effective once provider is told by “patient or a witness to the revocation” Presumably also if told by by parent, guardian, representative.
Physician Duty on Revocation Make the revocation a part of the patient’s medical record
Physician’s Duty to Comply With POLST If the physician has actual knowledge of the POLST, he/she must comply OR Transfer the patient to a physician/facility who will. NOTE: Not “constructive knowledge”. Clearly implies no “duty to inquire”. (...but…)
Physician’s Duty to Comply with POLST - Exception Physician may recommend changes in POLST to patient, representative or guardian. – Where patient not competent, make “reasonable attempt” to get agreement from representative and attending physician (if different), before modification. – Implies physician may modify order ex-parte after failed reasonable attempt.
Physician’s Duty to Comply with POLST - Exception Life-sustaining treatment may not be withheld/withdrawn if: – Patient pregnant – Possible fetus will develop to the point of live birth with the continued application of treatment.
Conflict Between POLST and Other Advance Directive? Most recent document controls where the conflict exists. All remain valid where not in conflict. Exception: A DNR on the person of the patient which says “no DNR” controls. Exception to exception: Hospital emergency care under EMTALA, pre-admission. (Not referenced is AB 344) There can be a conflict with EMTALA responsibilities if a DNR is honored at the hospital, including cases where a patient who is “in-transit” in an ambulance is on hospital “property” for EMTALA purposes
Presumption of Validity If presented with a POLST, a physician may assume its validity unless he/she has knowledge to the contrary. Form approved by another State is valid in Nevada.
Criminal (Misdemeanor) Penalties Failure to transfer if unwilling to comply with POLST Willfully conceal, cancel, deface or obliterate POLST. Falsify or forge POLST of another. Withhold personal knowledge of revocation of POLST. Coerce or fraudulently induce POLST
Physician Liability? Immunity? Statute provides physician is not guilty of unprofessional conduct, or subject to civil or criminal liability, if she/he: – Withholds “emergency or life sustaining care” in compliance with POLST or other form of advance directive, or – Is “ reasonably and in good faith” unaware of a POLST at time care is withheld and provide care, or – Acts in accordance with oral or written request of patient or another person with authority to revoke a patient’s POLST.
Physician Liability/Statutory Conflict Must comply with POLST if “actual knowledge” but Immunity if “reasonably and good faith” unaware of POLST. What does this mean? -Duty to comply only if actual knowledge -Immunity only available if “reasonably and in good faith” unaware So, possible liability under subjective standard and failure to meet “duty to inquire”. Courts will decide….
Physician Liability? Professional Conduct (Malpractice) for failure to meet statute’s requirements??? – Not provide and fill out form – Not provide sufficient explanation of differences between ADs – Failure to meet “duty to inquire” Trend is to treat failure to comply with statutory duties as malpractice (to access insurance policy.) – Failure to report where reporting required. – HIPAA violations Statute only provides immunity for providing/withholding care, not for failure to meet statutory duties.
When was this new law effective? October 1, 2013
Where do I get the POLST form? The State Board of Health* must draft the form which must; Be uniquely identifiable and uniform in color, - Provide a means for making an anatomical gift, - Give direction to providers and health care facilities regarding - the use of emergency care and life-sustaining treatment, Be honored by a provider in any setting, including the patient’s - residence, a health facility and the scene of a medical emergency, Include other features the Board thinks advisable. - THE FORM IS NOT CURRENTLY AVAILABLE. *Board of Health is now Nevada Division of Public and Behavioral Health
So How Do I Comply? Statute has two commands: – Provide and fill out POLST form – Explain differences between POLST and other types of ADs Failure to provide form where prescribed authority has not made form available is defensible. Duty to explain different types of ADS is not clearly excused.
Procedure? If asked, or if patient in requisite situation is encountered; – Indicate they may want to consider an AD, including a POLST when form becomes available – Provide a copy of the hand out – Document
Questions?
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