Legal Question in Health Care Law in Illinois

This is our modern tragedy, end of life issues, and I completely understand your anger and frustration. The nursing home and hospital may share blame, but so may uncle's surrogate or next of kin if that party had the right to invoke the DNR (or a health care power of attorney, if any or if that's what it really was), and failed to respond. The nursing home should have sent the records with (unless your uncle had previously been admitted to the hospital and the DNR was also there) and if the paperwork was in the hosiptal system someone should have checked, or if not the hospital should have asked or even called the nursing home, and if they did and someone at the nursing home was negligent...... We also do not know if when he came to the hospital the code was in ER as en emergency, or what. And who was there to ask? That is part of the problem? If staff didn't know, and attempted to find out.....anyway the finger-pointing can go on pretty much forever.

Legal steps? Whoever is next of kin (or named in the health care power if there is one) should seek out the nursing home's administration, and if it's always the same hospital then also the hospital's case management team, and make sure the DNR, and any health care power of attorney, if any, is in place and ready to be transported or is in the system. If uncle actually has his own MD, the MD should be made aware; if not the home's attending needs to be made fully aware, and yes it should be a red flag in his chart. Someone needs also to be "on call" potentially so the nursing home lets that person know uncle is being transferred and where, because it may not always be the same hospital (if one is on by-pass)....especially if we're talking a health care power and not just a "DNR" order (I'm not disputing with yout but without actually seeing the paperwork I want to make sure you understand what can happen if it's not the kind of document you think it is).

As to legal action, first what is the goal? If it is to punsh the facilities, you're talking "damages" since our legal system is all built around compensation. Or reporting the incident(s) to the responsible licensing agencies (both for the nursing home and hospital). But beware the nursing home then suggesting uncle might receive better care someplace else . . . and the next thing you know is that his stay is in jeopardy. If uncle's care is fully insured and paid for there is one problem, since the only party hurt economically is the government, but that's not the biggest problem. It's what is slowly becoming known in the law as "wrongful LIFE". You've probably heard of wrongful death, which is the civil/compensation side of a homicide. This is wrongfully prolonging someone's life. The problem is how does one "measure" the harm? Nobody is quite sure in end of life situations. Since suicide, assisted or otherwise, is illegal and by the traditional views of many religions to be unethical, the dilemma is compounded. And the nursing homes and hospitals have become the ones that have to deal with everything. Does uncle have no other direct kin? Because another avenue of "sabre-rattling" is evolving too, being negligent infliction of emotional distress. Nursing homes and hospitals are getting jittery over these issues. And lawsuits can take ...well...too long.

So again, what is the goal here? If uncle dies during litigation, and he is the "plaintiff", the case becomes moot and could be dismissed; that is one of the problems of the wrongful life approach. If someone has to pay, directly or guaranty, the nursing home or hospital, then there may be some negligence that the responsible party could allege.

So again, what is the goal? If it is to allow uncle death with some dignity, then there may be a few choices. And these are choices that may or may not make sense medically. One is palliative care, where there is a terminal condition and interventions are minimalized. The home may not have such facilities; the hospital may have an affiliate that does. Or there is hospice. Uncle's responsible representative (next of kin, surrogate...) should discuss this with the home's administration and the hospital's case/care management people. If this is not an option, then the surrogate may need to be more aggressive with the home and hospital, and possibly more likely with the hospital. No hospital likes complaints today, but it must be the right party making the complaint too. Who is the surrogate and was the surrogate lax in responding to the home or hospital? If you're not the proper representative, the home and hospital will have no obligation to listen to you. About the only other possibility would be what is called "mandatory injunctive relief" where you force a hospital (or home) to abide by the DNR, but then in the law normally you're required to have a situation where the DNR is being called upon, not just on a "continuing" basis, and there's almost never time for that to happen and, as they say, once such an order is not followed and the patient "survives", it's really too late.

And without minimizing anything I've said so far, a DNR and a health care power of attorney are different, and if uncle has both and they are in conflict, the home and/or hospital may be confronted with conflicting instructions depending on the actual situation. Uncle's responsible representative (next of kin, surrogate....) should not hesitate taking whatever paperwork he or she knows of to an attorney. I think the best thing an attorney can do for you is to make sure the right paperwork is in place and that everyone knows what their job is when the inevitable time comes. Best wishes and good luck.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is currently licensed to practice law only in the State of Illinois. Responses are based solely on Illinois law unless stated otherwise.