Legal Question in Elder Law in New York

right to choose

My relative is 96 years old and lives at home with her grandson who works during the day. She had 6 hours of aide service paid for by medicare and is alone for 2 hours each morning and 1 hour each night. Her daughter lives in the same building and is readily accessible. She suffered the loss of her brother in the recent past and was prescribed an antidepressent and sleeping medication after which she fell a few times and her HHA called an ambulance each time to take her to the local hosptial. She suffered bruises but no broken bones. Her doctor (not a geriatrician) finally took her off this medication. She is ready for discharge now and her doctor refused to allow her to go home. She is not without capacity but she does sundown occassionally. She does not want to go into a nursing home and her family wants to honor her wishes but her doctor insists that she be placed. She was about to get additionally services at home but this doctor refused to allow it and cancled the application. He and the hospital are now threatening the family with contacting adult protective services and having her previous services cancled so that if she does go home, they will have no home care available. What are the patient and family's right


Asked on 8/11/06, 10:30 pm

1 Answer from Attorneys
Phroska L. McAlister PHROSKA LEAKE McALISTER

Re: right to choose

Doctors and hospital personnel do have state mandated "reporting" requirements, in cases of Suspected ABUSE.

However, they do not have the authority to "hold" a patient "hostage" against their will, for an extended period of time, without consent of the patient, the patient's representative, or a Court Order.

In addition, threats to deny or withold "at home" medicare or medicaid benefits, on grounds that your relative does not require the benefits, would be inappropriate and beyond the scope of their authority, if your relative has an actual need for same and is not abusing such benefits or services.

Could be that the Doctor and hospital is abusing their authority, in an attempt to cover their own backs. Or, could be they believe that your relative is being abused at home.

Nevertheless, suggest that the relative and the family pointedly and in writing ask the doctor and hospital Social Worker, to specify in writing, what they recommend or believe is necessary, or should be in place, for your relative's "at home" health, care and safety, in order for them to release your relative to return home, w/o complaint.

Then, decide to proceed from there.

Good luck

Good luck,

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Answered on 8/13/06, 2:55 pm


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