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12.0 Health Care Directives
12.1 Maryland Advance Directive Law In General
12.2 Definitions
12.3 Procedure For Making Advance Directives
12.4 Effective Date/Revocation Of Advance Directive
12.5 Surrogate Decision Making
12.6 Standards For Surrogates
12.7 Do Not Resuscitate Orders
12.8 Federal Action
12.9 Maryland Anatomical Gift Statute
12.1 Maryland Advance Directive Law In General
At common law the doctrine of informed consent protected individuals from unauthorized touching. This is one of the reasons that patients sign consents prior to surgery before receiving treatment. The doctrine of informed consent formed much of the basis for living wills or wills which allowed an individual to opt out of heroic measures if death was imminent. See, e.g., Cruzan v. Missouri, 497 US 161 (1990) (demonstrating the legal validity of effective advance medical directives).
In Maryland, the Court of Appeals wrestled with a living will situation involving dueling guardianship petitions. In Mack v. Mack, 329 Md. 188 (1993), a young man was severely injured in an auto accident; specifically, he never gained consciousness after the accident and was expected to remain in a persistent vegetative state indefinitely. The issue before the court was whether the man's wife or his father would be guardian. The wife had moved to Florida and sought recognition of a Florida guardianship in Maryland. As a guardian under Florida law she would be permitted to remove life support. The father sought guardianship under Maryland law in order to prevent life support from being removed. The Court of Appeals held that the common law did not apply because of the modern nature of the medical science which permitted the extension of life. The Court of Appeals requested Maryland’s General Assembly to consider the issue:
"Were this Court to conclude that it was not in Ronald's best interest to live, we would be doing much more than simply applying to the facts of Ronald's case a general equitable principle governing decisions concerning a ward of a court. Having concluded that Ronald's individual intent is unknown, a conclusion that it is in Ronald's best interest to die would be based on his existence in a persistent vegetative state. That being the precedent, artificially administered sustenance should be withheld from all persons in a persistent vegetative state whose actual desires concerning the administration of such sustenance are unknown. Examination of that precedent would reveal that persons in a persistent vegetative state have no cognition and cannot take care of themselves. As a logical progression from that precedent, case eventually would be presented submitting that the best interest of the most severely retarded and feebleminded, who require extended care, who have practically no cognition, and who are too disabled to feed themselves, would be to have sustenance withheld. The question of whether to adopt a quality of life-best interest standard concerns our societal values in a most fundamental sense. The answer to that question is quintessentially legislative. Unless and until current public policy, as we perceive it, is changed by the General Assembly, sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life."
Id. at 222. In response, the 1993 General Assembly enacted sweeping changes to Maryland law.
In Wright v. Johns Hopkins Health Sys. Corp., 353 Md. 568 (1999), the Court dismissed a suit against health care providers for purportedly failing to follow an advanced directive. The case involved a close reading of the statute. The decedent's directive was a pre-1993 document that only addressed the circumstances if death was imminent. That circumstance was not shown as of the time of the medical intervention so no actionable cause of action was found. That case certainly did not preclude suit in a proper case.
12.2 Definitions
Section 5-601 of Maryland’s Health-General Code sets forth certain key definitions. Md. Code Ann., Health-Gen. § 5-601 (LexisNexis 2006). Specifically, the law defines three medical situations where an advance directive would be appropriate:
• End stage condition: "An advanced, progressive, irreversible condition caused by injury disease or illness: (1) that has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and (2) for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective."
• Persistent vegetative state: "A condition caused by injury, disease, or illness: (1) in which a patient has suffered a loss of consciousness, exhibiting no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflex activity of muscles and nerves for low-level conditioned response; and (2) from which, after the passage of a medically appropriate period of time, it can be determined, to a reasonable degree of medically certainty, that there can be no recovery."
• Terminal condition: "An incurable condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life-sustaining procedures, there can be no recovery."
Of these three conditions, the persistent vegetative state is the only specific medical diagnosis. A "terminal condition" is not a specific medical diagnosis but a determination that the underlying condition will cause imminent death. This is akin to the old "living will" formula that death is imminent. Presumably, these two conditions would be familiar to health care professionals; the former being a term of art and the latter a standard that physicians have traditionally applied in living wills cases. The end-stage condition is an attempt to address problematic aspects of the old death-is-imminent standard. As medical science is increasingly able to postpone death, this standard applys to situations where the underlying condition is irreversibly progressing towards death.
Under Maryland law a surrogate decision-maker is to make decisions in the best interest of the patient when the patient is incompetent and had not given advance directive regarding medical treatment. By statute, "best interest" is a balancing test whereby a determination is made "that the benefits to the individual resulting from a treatment outweigh the burdens the individual resulting from that treatment." Md. Code Ann., Health-Gen. § 5-601(e). The surrogate is to take into account the following factors: (1) the effect of the treatment on the physical, emotional, and cognitive functions of the individual; (2) the degree of physical pain or discomfort caused to the individual by the treatment or withholding or withdrawal of the treatment; (3) the degree to which the treatment or the withholding of the treatment will result in a severe and continuing impairment of the dignity of the individual by subjecting the individual to a condition of extreme humiliation and dependency; (4) the effect of the treatment on life expectancy; (5) the prognosis for recovery; (6) the risks, side-effects, and benefits of the treatment; and (7) the religious beliefs and basic values of the individual to the extent these may assist the decision maker in determining best interest. Id.
12.3 Procedure For Making Advance Directives
Section 5-602 provides for written and, in certain circumstances, oral directives. See Md. Code Ann., Health-Gen. § 5-602. A written directive must be dated, signed by "or at the express direction" of the individual, and subscribed by two witnesses. § 5-602(c)(1). The health care agent may not serve as a witness but an employee of the health care facility and/or physician caring for the declarant to act as a witness if they act in good faith. At least one of the witnesses must be someone who is not knowingly entitled to a portion of the declarant's estate or who would otherwise financially benefit by reason of the death of the declarant. The declarant may choose any competent individual to serve as agent to make health care decisions for the individual under the circumstances stated in the directive. Neither an owner, operator or employee of the health care facility where the declarant is receiving care may serve as an agent unless that person would be otherwise authorized to act as a surrogate under default provisions listed in § 5-605 (generally family members). An oral directive may be made either regarding the authorization or withdrawal of procedure approach to health care delivery and/or to appoint an agent to make those decisions. An oral directive must be made in the presence of the attending physician and one witness "and documented as part of the individual's medical record." § 5-602(d)(2).
12.4 Effective Date/Revocation Of Advance Directive
Advance directives may be thought of as self-correcting. If the patient is conscious and able to make informed decisions, the agent does not have authority under the instrument. Section 5-602(e) provides that (unless other provided in the document) "an advance directive shall become effective when the declarant's attending physician and a second physician certify in writing that the patient is incapable of making an informed decision." The second physician is not required if the patient is unconscious or unable to communicate by any means. Section 5-602 also provides that advance directives shall be made part of the medical record upon the attending physician learning of its existence and suggests forms for such directives. See also 79 Op. Att'y Gen. Md. 218 (1994). An advance directive may be revoked at any time by the declarant by a signed and dated writing, by physical cancellation or destruction, by an oral statement to a health care provider, or by the execution of a subsequent directive. § 5-604.
12.5 Surrogate Decision Making
The person named in the advance directive to be the health care agent is a surrogate decision maker. If an individual has not appointed an agent, or the agent is not available, then § 5-605(a)(2) establishes an order of priority to determine who shall act as surrogate:
1. a guardian if one is appointed
2. patient's spouse
3. adult child of patient
4. parent of patient
5. adult brother or sister of patient
6. a friend or other relative of patient meeting specific requirements
If the surrogate is a friend or other relative, he or she must submit an affidavit to the attending physician stating specific facts and circumstances demonstrating that the person has maintained regular contact with the patient sufficient to be familiar with the patient's activity, health, and personal beliefs. § 5-605(a)(3). This affidavit is to be included in the patient's medical record.
If persons of equal decision-making priority disagree about health care decisions and the disabled person is in a hospital or related institution, the attending physician is to refer the case to the institution's patient advisory committee and the physician may act in accordance with the recommendation of the committee. § 5-605(b)(1).
12.6 Standards For Surrogates
Any person who is acting as a surrogate (either named or, in default, granted a priority) "shall base those decisions on the wishes of the patient and, if the wishes of the patient are unknown or unclear, on the patient's best interest." A determination as to what is in the "best interests" of the patient is only made if the patient's own wishes are unknown or unclear. A patient’s wishes need not be in written form. In determining the wishes of the patient, the surrogate is to consider the following:
1. the current diagnosis and prognosis
2. any expressed preferences regarding treatment options
3. relevant religious and moral beliefs and personal values
4. behavior, attitudes, and "past conduct with respect to the treatment at issue and medical treatment generally"
5. "reactions to the provision of, or the withholding or withdrawal of, a similar treatment for another individual"
6. "expressed concerns about the effect on the family or intimate friends of the patient if the treatment were provided, withheld, or withdrawn."
§ 5-6059(c). The law specifically states that a decision shall not be based on either a patient's pre-existing, long-term medical or physical disability, or a patient's economic disadvantage. Id. The statute prohibits the surrogate from authorizing either sterilization or treatment for mental disorder. § 5-609(d).
12.7 Do Not Resuscitate Orders
Section 5-608 outlines the guidelines for "do not resuscitate orders." Medical services personnel shall follow emergency medical services "do not resuscitate orders" pertaining to adult patients in the outpatient setting in accordance with protocols established by the Maryland Institute for Emergency Medical Services Systems. The statute immunizes emergency health care providers from liability if they are acting in good faith in providing the health order. § 5-608(d).
12.8 Federal Action
The Patient Self-Determination Act, 42 U.S.C.A. § 1395 (West 2006), requires that every patient admitted to a hospital which receives federal funds must be advised of his or her right to create an advance directive. § 1396f-1(a). Consequently, anyone admitted to a hospital in Maryland will receive this notice and accompanying forms.
12.9 Maryland Anatomical Gift Statute
Maryland’s Estates and Trusts Article explains the procedures for execution of an anatomical gift. Any individual that is 18 years old or older may give all or any part of his or her body to permit the use of organ transplants or other uses. § 4-503(a). If the decedent has not made a gift, there is a list of priority as to who can make the gift:
1. spouse
2. adult son or daughter
3. either parent
4. adult brother and sister
5. guardian
6. friend or other relative if such friend or other relative submits an affidavit similar to that under that surrogate decision making statute.
§ 4-503(b). The only permitted donees of anatomical gifts are hospital, surgeon, or physician, medical schools, or licensed blood banks or other storage facilities. § 4-504. Section 4-504(e) permits anatomical gifts to be designated to a specific individual: "Any specified donee may receive a gift for therapy or transplantation needed by him."
Section 4-505 states that the gift is to be effective immediately without waiting for probate even if the indication of the gift is made in a will. The statute also provides for documentation (form provided in the statute) to indicate that the living person wishes to make an anatomical gift. In Maryland this indication may be on a driver's license, assumedly the most effective way to make an anatomical gift designation. See Md. Code Ann., Transp. § 12-303 (LexisNexis 2006).
There is a special provision for the donation of corneal tissue. See § 4-509.1. This section authorizes the medical examiner to provide the cornea upon the request of the Maryland Eye Bank and/or the Lion's Club Eye Bank and Research Foundation. The medical examiner will provide corneal tissue in any case where: 1) an autopsy is required; 2) the medical examiner does not know of any objection to the donation by the next-of-kin; 3) the medical examiner does not know of any religious objection made by the decedent; and 4) the removal will not interfere with the subsequent course of an investigation or autopsy or alter the post-mortem facial appearance. § 4-509.1(a)(1).
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