Assembly Bill 344 Physician Orders for Life-Sustaining Treatment - - PowerPoint PPT Presentation

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

• f 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?