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It's The Law: Privacy Trumps Partnership In Medical Care Information

Q: I have been living with my girlfriend for over ten years but we are not married. Recently, she got sick and her doctor refused to give me any information even though she was in the hospital and unconscious.

A: Chapter 765 of Florida Statutes establishes authority to make healthcare decisions for people who are incompetent or unable to make such decision for themselves. Part II provides the manner by which a person may designate another, in writing, to make healthcare decisions for that person in event of incapacity. The designee is known as the Healthcare Surrogate.

The statute allows a principal to designate a surrogate and an alternate who may act if the first chosen person is unable or unwilling to act. If the principal so desires, a separate surrogate may be designated with respect to mental health treatment.

The principal’s attending physician makes the determination as to capacity and the surrogate can only act if the physician, or a second physician consulted due to uncertainty, determines that the principal lacks capacity. If an incapacitated or developmentally disabled patient has not executed an advance directive designating a surrogate to make healthcare decisions, Section 765.401 of Florida Statutes provides a list of people who can make decisions in the following order of priority, if no individual in any prior class is reasonably available, willing or competent to act:

  1. A judicially appointed guardian;
  2. The patient’s spouse;
  3. An adult child of the patient, and if the patient has more than one child, the majority of the adult children who are reasonably available;
  4. A parent of the patient;
  5. An adult brother or sister of the patient, and if more than one, a majority of those who are reasonably available;
  6. An adult relative of the patient who has exhibited special care and concern of the patient, and who has maintained regular contact with the patient;
  7. A close friend of the patient;
  8. A licensed Florida clinical social worker, or a social worker who is a graduate of a court-approved guardianship program. A social worker becomes the surrogate if selected by the hospital’s bioethics committee and cannot be employed by the hospital. If the hospital has no bioethics committee selection is by the bioethics committee of another hospital.

Absent written authorization, one’s life partner is a close personal friend, far down the list of those authorized to make healthcare decisions. This was recently made painfully aware to Janice Langbehn. Janice was a life-long partner of Lisa Marie Pond. While Janice and Lisa were in Florida, Lisa collapsed and was taken to a hospital by ambulance, where she ultimately died.

The hospital refused to provide information to Janice. Eventually, Janice produced a document under which she was empowered to make healthcare decisions for Lisa, and after the document was produced the hospital did provide her with information so she could make healthcare decisions for Lisa.

Janice made requests for update information about Lisa’s condition every twenty minutes, but the hospital did not provide any information. The hospital also did not allow Janice to visit Lisa, until such time as a priest arrived to administer last rights.

Lisa was transferred to a private room, and later that night her sister and brother-in-law arrived. The hospital allowed the sister and brother-in-law to visit Lisa in her room and, at that time, Janice was also allowed in.

Janice sued the hospital but her suit was dismissed. The Court ruled the hospital did not have to provide any information to Janice as a life-partner. The hospital was obligated to provide information to an authorized person to make healthcare decisions, but only such information as was needed to make a decision concerning treatment. Hence, the hospital did not have to respond to Janice’s requests for updates or to provide general information where there was no treatment decision to be made.

The Court also ruled that doctors at a trauma unit do not have a free-standing legal duty, untethered to informed consent, to allow visitation with a patient in critical condition. The Court said decisions as to visitation should be left to medical personnel in charge of the patient, without second-guessing by juries and courts.

As you have personally experienced, unmarried partners often find it difficult to get medical information and may be barred from participation in healthcare decision-making for their partner unless they hold written authorization to make those decisions. Even with written authorization, access to the patient and information may be limited. Nevertheless, for the unmarried, importance of written authorization for access to medical information and healthcare decision making between partners is elevated. To minimize problems, it is recommended that such documents be prepared by an experienced attorney.

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