Tennessee Health Care Decisions Act of 2004 Who Has Authority to Make Decisions for an Incapacitated Patient?

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1 U n i v e r s i t y o f T e n n e s s e e H e a l t h S c i e n c e C e n t e r Volume 2, Issue 1 March 2009 The Custom of Relying on Next-of-Kin to Authorize Health Care Decisions Is Not Supported Under Tennessee Law Inside this issue: THCDA: Who Has Authority to Make Health Care Decisions for an Incapacitated Patient? Physicians Play Major Role in Determining Who Acts on Behalf of Incapacitated Patients Physician Assistant Held to Same Standard of Care as Supervising Physician Prior FDA Approvals Do Not Prevent Drug Manufacturer from Upgrading Warning Labels Claims for Nurse Employees Alleged Negligence in Swapped Baby Cases Dismissed Nursing Home s Alleged Failure to Provide Basic Care Falls Under Medical Malpractice Act Regardless of custom, however, we find no basis in common law for such next-of-kin to make health care decisions for an incapacitated relative, in the absence of actual or apparent authority In a series of similar cases, Tennessee courts have clarified who has the right to make health care decisions on behalf of an incapacitated patient, and they have rejected the customary practice of relying on next-of-kin. Only persons who have actual or apparent authority to act as the patient s agent may do so, and the bare fact of being next-of-kin does not automatically bestow that authority. In Barbee v. Kindred Healthcare Operating, Inc., (decided October 20, 2008) the Tennessee Court of Appeals addressed the question of whether a patient s next-of-kin had authority to sign a binding arbitration agreement upon patient s admission to a nursing home. In Barbee, Son assisted his mother with financial matters by paying her bills and handling other financial transactions for her. He did not have power of attorney or other written authorization from his mother to act on her behalf. In 2004, Mother was diagnosed with colon cancer and underwent colon surgery. After surgery, she was admitted into a nursing home, and Son signed the admission documents, including an arbitration agreement. At the time of her admission, Mother lacked capacity to make her own health care decisions. After his mother s death, Son filed suit against the nursing home alleging abuse and neglect. The nursing home filed a motion to dismiss the lawsuit and compel arbitration. The trial court held that Son had apparent authority to sign the arbitration agreement in light of mother s incapacity and ordered the parties to arbitrate. The question on appeal was whether Son had authority to bind his mother s estate to arbitration. Finding that Son lacked either actual or apparent authority, the Court of Appeals reversed the order compelling arbitration. Apparent authority. The court acknowledged that Son, as patient s only living relative, had appeared to be her agent by his actions of handling her finances and signing the consent and admission forms. However, apparent authority is granted by the actions of the principle (Mother), not by the actions of the agent. Because Mother was incapacitated, she was incapable of indicating that Son was her agent. Thus, the court held that Son lacked apparent authority to sign the arbitration agreement. Actual authority. Son did not have Mother s power of attorney, nor had a court appointed him as her guardian or conservator. The next step in the analysis (Continued on page 2, Next-of-kin) Information for Health Care Professionals in Tennessee

2 Page 2 Tennessee Health Care Decisions Act of 2004 Who Has Authority to Make Decisions for an Incapacitated Patient? When a patient lacks the capacity to make health care decisions, someone else must make these decisions on the patient s behalf. The Tennessee Health Care Decisions Act (HCDA) provides a comprehensive set of rules for determining who has this right. Health care providers must know the rules to ensure that the legally authorized person is giving consent for health care treatment on behalf of the patient. Failing to identify this person may give rise to a potential claim for medical battery. Below is a list, in the order or priority, of who has the legal right to make health care decisions for an incapacitated patient. First priority (health care agent). If the patient lacks capacity to make health care decisions, the health care provider should look first for someone who has been formally appointed by the patient. Under Tennessee law, a patient may formally appoint a health care agent in one of three ways: (1) Advance Care Plan, (2) Appointment of Health Care Agent or (3) Durable Power of Attorney for Health Care. Second priority (judicially appointed guardian). If the patient has not formally appointed a health care agent (or if this person is not reasonably available), the health care provider should next turn to a person who has been judicially appointed as the patient s guardian (also known as a conservator). A judicially appointed guardian does not take precedence over a health care agent unless ordered by the court. Note: Being reasonably available means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient s health care needs. Such availability includes availability by telephone. Third priority (patient designated surrogate). If there is no health care (Continued on page 3, HCDA) (Continued from page 1, Next-of-kin) was to determine whether Son had the right to make Mother s health care decisions under the Tennessee Health Care Decisions Act of Because Mother had never formally or informally appointed Son as her health care agent, and no court had given Son that authority, the next step was to see if her physician had designated a surrogate to make health care decisions on her behalf. The court found no indication from her medical record that her physician had designated anyone to act as her surrogate. The court found that no one had the legal authority to make health care decisions on her behalf. Thus, the arbitration agreement that Son had signed upon admitting his mother to the nursing home was not binding upon her estate, despite the fact that he had signed it and that he was her sole heir. The court specifically rejected the argument that it was the customary practice to rely upon an incapacitated patient s next-of-kin for consent in health care decisions. The court stated, Regardless of custom, however, we find no basis in the common law for such next-of-kin to make health care decisions for an incapacitated relative, in the absence of actual or apparent authority as the patient s agent. The Barbee case is one of several similar cases that have been decided by the Tennessee courts in the past year, each reaching its result using a similar analysis. Although these cases have involved the question of enforcing a nursing home arbitration agreement, they put health care providers on notice that they cannot follow the custom of relying on next-of -kin for consent without also finding that the next-of-kin has either actual or apparent authority. Apparent authority can be inferred only from the actions of the patient, so if the patient is already incapacitated, he or she cannot bestow apparent authority, and the person claiming authority must have actual authority. Actual authority is conferred under the Tennessee Health Care Decisions Act of This legislation provides a comprehensive set of rules for determining who has the legal right to make health care decisions for an incapacitated patient. These rules are explained in the article beginning at the top of page 2 of this newsletter.

3 Page 3 (Continued from page 2, HCDA) agent appointed by the patient and if there is no judicially appointed guardian (or neither is reasonably available), the third person the health care provider should turn to is someone who has been informally appointed by the patient, called a patient designated surrogate. A patient informally designates a surrogate by personally informing the supervising health care provider. The designation may be oral or in writing. Physician Designated Surrogate. If the patient lacks capacity, has not appointed a health care agent, has not designated a surrogate, and does not have a judicially appointed guardian, (or none of them are reasonably available), the supervising health care provider must choose the patient s surrogate decision-maker and document the choice in the clinical record. Tennessee provides a checklist to guide the supervising health care provider in choosing a surrogate so that the following criteria are met. The surrogate must be an adult who has exhibited special care and concern for the patient, who is familiar with the patient s personal values, who is reasonably available, and who is willing to serve. The supervising health care provider may consider the following people to serve as surrogate in order of descending preference (not priority): 1. The patient s spouse, unless legally separated; 2. The patient s adult child; 3. The patient s parent; 4. The patient s adult sibling; 5. Any other adult relative of the patient; or 6. Any other adult who satisfies the listed criteria. The supervising health care provider must use the following criteria to determine who is the best person to serve as the patient s surrogate. Ideally, the proposed surrogate: Has the ability to make decisions in accordance with the known wishes of the patient or in accordance with the patient s best interests; Has had regular contact with the patient prior to and during the incapacitating illness; Demonstrates care and concern for the patient; Is available to visit the patient during his or her illness; and Is available to engage in face-toface contact with the health care providers for the purpose of fully participating in the decisionmaking process. Designated Physician. If none of the people eligible to act as the surrogate are reasonably available, the designated physician (the physician who has primary responsibility for the patient s health care) may make health care decisions for the patient after the designated physician either (1) consults with and obtains the recommendations of the facility s ethics committee, or (2) obtains concurrence from an independent, nontreating physician. Note: This material was excerpted from the factsheet, Advance Directives. The factsheet is available in its entirety at: UT/factsheets/AdvanceDirectives.pdf Physicians Play Major Role in Determining Who Acts on Behalf of Incapacitated Patients A series of Tennessee cases (discussed in lead article) illustrate the key role that physicians now play in determining who has the legal authority to make health care related decisions on behalf of a patient who is incapacitated. Perhaps more importantly, these cases illustrate the consequences of when an attending physician fails to designate a surrogate on behalf of a patient. Several recent Tennessee cases have held that an agreement to arbitrate with a nursing home was not enforceable because the family member who signed the agreement lacked legal authority to do so. When neither the patient nor the court designates someone to make health care decisions for an incapacitated patient, that responsibility falls to the attending physician. When the attending physician does not make that designation in the medical record, the patient is without a legal surrogate. If the next-of-kin has no legal authority to sign an agreement to arbitrate, one can also assume that the next-of-kin has no authority to sign a consent form, and the provider may be at risk for a claim of medical battery.

4 Page 4 Prior FDA Approvals Do Not Prevent Drug Manufacturer From Upgrading Warning Labels In Wyeth v. Levine, (decided March 4, 2009) the United States Supreme Court upheld a multimillion dollar jury award against Wyeth, a drug manufacturer, for failing to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. Levine had received her usual treatment for a migraine headache at her local clinic. She received an intramuscular injection of Demerol for her headache and Phenergan for her nausea. The treatment did not provide relief, so she returned to the clinic later that day. This time, the physician assistant administered the drugs by the IV-push method, and Phenergan entered Levine s artery. As a result, Levine developed gangrene, and doctors amputated first her hand and then her entire forearm. In addition to her pain and suffering, Levine incurred large medical expenses and the loss of her livelihood as a professional musician. Levine sued under Vermont law for failure-to-warn. The jury returned a verdict in her favor for $7,400,000 (which was reduced by the amount she had received in settlement with the health center and clinician). Wyeth argued, among other things, that it would have been impossible to comply with the state-law duty to modify Phenergan s labeling without violating federal law. The FDA s premarket approval of a new drug application includes the approval of the exact text in the proposed label. Generally, a drug manufacturer may only change a drug label after the FDA approves a (Continued on page 5, FDA) Physician Assistant Held to Same Standard of Care as Supervising Physician In Cox v. Primary Urgent Care Clinic (decided January 30, 2009), the Tennessee Court of Appeals held that the standard of care for a physician assistant was the same as the standard of care for the supervising physician. In Cox, Plaintiff had sought consultation and treatment at the defendant clinic for progressive respiratory problems. She had several appointments over three months, and all her appointments, evaluation, and treatment were handled by a physician assistant. During this timeframe, she had one telephone conversation with the supervising physician. Ultimately, she sought treatment at another facility where she was diagnosed with a severe form of congestive heart failure, as a result of which she received a mitral valve replacement. Plaintiff sued the supervising physician and the clinic for medical malpractice, alleging that the defendants had failed to diagnose her cardiomyopathy which caused her unnecessary pain and suffering, the worsening of her condition, and the resulting surgery. Defendants moved for summary judgment on the grounds that no act or omission by them had caused Plaintiff s injury, and that she had failed to produce any expert testimony to show how they had breached the standard of care. The lower court entered summary judgment in favor of the Defendants because the plaintiff had failed to produce expert testimony as to the standard of care for a physician assistant. The Tennessee Court of Appeals reversed, finding that the Plaintiff s expert testified as to the standard of care for the supervising physician which was sufficient to show the standard of care for the physician assistant. The court reasoned that under the applicable Tennessee statutes and regulations, a physician assistant could provide services only under the supervision of a licensed physician and within the scope of practice for that physician, who is responsible for the treatment rendered by the physician assistant. The court held, Consequently, the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices. The court did not address Plaintiff s claim for negligent supervision because she had not raised the issue in her complaint. The case was sent back to the trial court for further proceedings.

5 Page 5 Claims for Nurse Employees Alleged Negligence in Swapped Baby Cases Dismissed Companion cases involving a swapped baby have been resolved in favor of the hospital. In Hobbs v. Seton Corporation, the Tennessee Court of Appeals affirmed the trial court s dismissal of the claims for negligence and battery that were filed on behalf of the infant child. In Filson v. Seton Corporation, the Court of Appeals reversed the trial court s holding that part of plaintiff s claims could go forward to a jury trial, and sent the case back to the trial court for an entry of summary judgment in favor of the hospital on all issues. Both decisions were filed on January 27, Both cases arose out of the same fact situation. In the very early morning hours, a nurse mistakenly brought the baby of Ms. Hobbs to Ms. Filson for breast feeding. Ms. Filson attempted to nurse her, but because Ms. Hobbs had chosen bottle-feeding, the baby had never nursed before, and she cried and screamed. When Ms. Filson turned on a light, she realized that the baby she had been nursing was not her child. After checking identification bracelets, the nurses confirmed that Ms. Filson had been breastfeeding Ms. Hobbs baby. After changing the clothes and linens, the nurse suctioned Baby Hobbs stomach to remove Ms. Filson s breast milk to reduce the risk of any infection that could be transmitted by body fluids. After the baby was returned to Ms. Hobbs, she claimed that the baby was uneasy, physically exhausted, irritable, fussy, on edge, and shaken up. The hospital performed blood work on Ms. Filson which showed no risk of infection or other problems. Ms. Filson also requested a DNA test to confirm that the child she was taking home was her biological child. She had to wait ten days for the DNA results. Ms. Hobbs sued the hospital on behalf of her child for negligence and medical battery. Ms. Filson sued the hospital for the negligent infliction of emotional distress (NIED). Hobbs case. The negligence claim was dismissed because the hospital negated an essential element of the claim injury. Evidence showed that suctioning was performed on nearly every newborn, and that it involved less pressure than sucking on a straw. Because Ms. Hobbs had no knowledge of the baby s disposition before her stomach was suctioned, Ms. Hobbs was unable to prove that suctioning increased the baby s discomfort. The battery claim was dismissed because the nurse was operating under a General Consent for Medical Care that Ms. Hobbs signed when she was admitted to the hospital. The form authorized the hospital and its employees to perform any tests or procedures authorized by her doctor. The Newborn Care Path used at the hospital and ordered by each patient s physician contained a standard order allowing the nurses to suction a baby, when, in the judgment of the nurse, it is considered necessary or desirable. Suctioning a baby s stomach did not require the informed consent of the mother, a specific order from the baby s physician, or the physician s supervision. Thus, no medical battery occurred. Filson case. Tennessee courts are reluctant to allow recovery of damages for purely emotional injuries, and the plaintiff carries a (Continued on page 6, Swapped Baby ) (Continued from page 4, FDA) supplemental application. An exception to the rule allows a drug manufacturer to change a label before approval if the change strengthens a warning. However, a 2008 amendment provides that a manufacturer may only change its label to reflect newly acquired information. Thus, Wyeth argued that it could change the drug s label only in response to new information that the FDA had not considered. The Supreme Court found that Wyeth could have amended its label even under the new regulation. The FDA s notice of the final rule clarified that newly acquired information is not limited to new data, but also encompasses new analysis of previously submitted data. The Court noted, the very idea that the FDA would bring an enforcement action against a manufacturer for strengthening a warning pursuant to the CBE regulation is difficult to accept...

6 Page 6 Nursing Home s Alleged Failure to Provide Basic Care Falls Under Medical Malpractice Act In French v. The Stratford House, decided January 29, 2009, the Tennessee Court of Appeals addressed the issue, among others, of which claims against a nursing home are ordinary negligence and which claims are medical malpractice. In French, the estate of a deceased nursing home patient brought suit against the nursing home alleging that its employees had failed to provide the decedent with basic health care, such as filling her water pitcher, feeding her, cleaning her after incontinence, bathing her, and turning her every two hours to avoid pressure sores. The decedent s personal representative (PR) argued that, due to the lack of care, deceased developed pressure sores that were not properly treated, became infected, and ultimately caused her death from sepsis. The PR sued alleging claims for medical malpractice, ordinary negligence, negligence per se (for violations of federal regulations) and the Tennessee Adult Protection Act (TAPA). The trial court dismissed all of her claims except the medical malpractice claim, and the Tennessee Court of Appeals affirmed. Ordinary negligence. Not every claim of wrongdoing against a hospital or doctor is for medical malpractice. Typically, a claim for medical malpractice involves a medical diagnosis, treatment, or other scientific matters. The difference between ordinary negligence and medical malpractice turns on whether the alleged wrongdoing involves a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the wrongdoing can be assessed on the basis of common everyday experience of lay persons. In other words, it is a claim for ordinary negligence if it is within the common knowledge of lay persons. The court in French, opted to apply a different standard to the facts in this case. Relying on an earlier case decided in 2003, the court distinguished between ordinary negligence and medical malpractice as follows: [W]hen a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable. Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply. In French, the PR alleged the following as ordinary negligence: failure to turn the deceased every two hours and reposition her to prevent bed sores; failure to properly treat the bed sores once they developed; failure to assist the deceased in eating, and failure to provide water and to encourage her to drink; failure to bathe her; failure to clean her after incontinence; and failure to adequately staff the nursing home. The court stated, evaluation of how a particular patient needs to be fed or hydrated, whether the patient is at risk for pressure sores, how often an atrisk patient needs to be turned, how to treat pressure ulcers if they develop, how many caregivers are needed to minister to a particular group of patients and similar allegations, are decisions relating to the care of the Deceased that necessarily involve medical knowledge. The court held that these decisions bear a substantial relationship to the rendition of medical treatment and are, therefore, subject to Tennessee s Medical Malpractice Act. As a practical matter, the court s ruling may make it more difficult for a plaintiff to win a lawsuit against a nursing home. A claim for medical malpractice (Continued on page 7, nursing home) (Continued from page 5, Swapped Baby ) heavy burden to prove a claim for the negligent infliction of emotional distress (NIED). The Tennessee Supreme Court has stated that fright, fear, hurt feelings, etc., are not enough to recover for a stand-alone NIED claim (where no physical injury is claimed). To recover for purely emotional injury, the plaintiff must prove by expert testimony serious or severe emotional injuries which disable a reasonable, normally constituted person from coping adequately with the stress. Plainly stated, there must be expert proof that the emotional injury would disable a reasonable person. Finding that Ms. Filson did not meet her burden of proof, the Court of Appeals directed the trial court to enter summary judgment in favor of the hospital.

7 Page 7 Disclaimer The information provided in this newsletter is educational in nature and provided as a public service. It is neither a comprehensive statement of the law nor intended as legal advice, and it should not be relied upon as such. The information is based upon Tennessee law, and the laws in other states may be different. Laws may change without notice, rendering the information contained in this newsletter inaccurate. If you have specific legal questions, please consult a practicing attorney. For your information: Summary judgment: The court renders a judgment before a trial based upon facts not in dispute, and the application of law to those facts entitles a party to a judgment on the claim as a matter of law. If there is a dispute as to a material fact in the case, summary judgment is denied, and the case goes forward to trial. (Continued from page 6, nursing home) requires expert testimony to show that the alleged wrongful conduct breached the applicable standard of care. Claims of ordinary negligence are decided by a jury without the assistance of an expert witness. Negligence per se. PR claimed that violations of federal regulations regarding the care of nursing home patients were negligence per se. The court disagreed and refused to use the federal regulations, or the state regulations based upon them, to create a cause of action separate and apart from a medical malpractice action. The court based its decision on Tennessee s adherence to the locality rule, which requires an expert to be familiar with the standard of care in either the community in which the defendant practices, or in a similar community. Federal regulations do not set the standard of care in Tennessee because it would be the same as adopting a national standard. Tennessee courts have consistently rejected the adoption of a national, state, or regional standard of care in medical malpractice cases. The court noted that although the federal regulations may be relevant in a medical malpractice case, they do not create a distinct cause of action. TAPA claim. The Tennessee Adult Protection Act makes it an offense for anyone to knowingly abuse, neglect, or exploit disabled or elderly adults. In addition to making it a criminal offense, TAPA allows disabled or elderly adults who have been abused, neglected or exploited to recover damages from the wrongdoer. [W]hen a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable. In French, the PR claimed that the nursing home had violated TAPA. However, TAPA expressly provides that it does not apply to a cause of action within the scope of the Tennessee Medical Malpractice Act. Because the trial court had determined that all of the PR s claims fell under the Medical Malpractice Act, it dismissed the claims under TAPA. The Court of Appeals affirmed. Material fact: A fact that might affect the outcome of the case. Contact information: Carol A. Schwab, J.D., LL.M., Director of Medical/Legal Education, Office of Academic, Faculty and Student Affairs, University of Tennessee Health Science Center, Memphis, TN legaledu@uthsc.edu (901)