Advance directives don’t apply during surgery

It’s the morning of your surgery, and you have been a paragon of preparation. Your advance lab work is complete, you’ve fasted for 12 hours, you arrived 10 minutes ahead of schedule and are poised to sign the final paperwork before being directed to pre-op. You present the advance health-care directive you prepared months ago to the intake clerk, and begin to fill in the consent form.

But wait. One provision says that the hospital has opted “not to honor” advance directives. Can it do that? If so, what’s the point of being such a responsible person in the first place?

Yes it can, and many medical institutions do under the laws of “conscientious objection.” But there are good reasons for filling out such a directive, and for medical facilities to have the flexibility to override them.

According to the Centers for Disease Control and Prevention, the most common types of advance directives are living wills and do-not-resuscitate orders. Overall, 28% of home health-care patients, 65% of nursing home residents and 88% of discharged hospice care patients had at least one advance directive on record.

Advance directives protect the wishes of patients unable to speak for themselves. Outside of the surgical theater, directives generally address conditions associated with the elderly and others such as persistent vegetative states that are not acute, but ongoing. During surgery, if something goes wrong, such as an adverse reaction to anesthesia or an unexpected organ failure, doctors need to respond quickly; their goal is to ensure the success of the surgery, and a completely binding advance directive can hamstring a reasonable effort to address a sudden problem. You don’t want someone able to correct a situation quickly and successfully to be prohibited from doing so by a document intended to address a more long-term issue.

But the time limits suspending a directive should be clear; medical providers, even if they aren’t bound by its terms during surgery, must be aware of them afterward. And if the surgeon or hospital refuses to honor your documented wishes during recovery, most states require them to make a reasonable effort to transfer you to providers who will.

Patients can protect their rights and enhance their surgical outcome by:

asking before surgery about the hospital’s policy on advance directives. If you don’t like it, look elsewhere for your procedure, but understand that most hospitals won’t comply with a directive during surgery;

understanding the time limits of the suspension-it should cease once you’re in recovery;

ensuring that you have an advocate with you who understands your wishes-a relative or friend who acts as your agent to make health-care decisions if you’re unable.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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