Expert: Timmy Chou - 10/1/2010

Question
QUESTION: Dear Mr. Timmy Chou,
I need some clarity on a elder neglect based on a legal perspective. Location: Chicago, IL

The elderly suffered a stroke at 7AM. The caretaker alerted the son who has the Power of Attorney (POA) and he lives a block away from the elderly's home. He claimed he was "busy", arrived 3 hours later, and instead of calling 911 (as the caretaker or he used to do in recent/distant past), he called a hospice nurse. The hospice nurse arrives at around 7PM and told him to call 911 right away. By the time the elderly received medical attention at the hospital (which is only a 5 minute ambulance drive), the elderly person was already paralysed to where he/she could not swallow. The elderly suffered with no food and no water for a week before passing away.

Questions

1. What your thoughts on this case?

2. Does a doctor or a person invested with medical decision-making powers/power of attorney (POA) have the right to wait 12 hours to call an ambulance for a 97 year elderly frail person who had a stroke? For your info, this elderly did not have a living will.

3. The elderly's son/POA earlier claimed that the mother's personal medical doctor once told him to stop giving his mother her medication if medical problem arises in the near future and not to call the ambulance. Is that a legal medical procedure/advice a doctor would give a family member?


Thanks.
Dan


ANSWER: Thank you for your question!

If you have looked at some of my previous answers you may know that I always advise questioners that mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.   

I am not an attorney and cannot give you legal advice but can respond from my mediation, management and consulting experience. Note that this issue may certainly have legal ramifications and you may wish to consult an attorney.

I do not have any medical expertise and can only speculate given the details from your description, but it does sound to me like someone (everyone) was asleep at the switch or negligent.  In the first place, no one needs "permission" to call 911.  If any person anytime is non-responsive for any reason the prudent thing to do is to call 911.  The on-scene caretaker should have called at once unless there was a specific instruction (like a DNR) that directed them to refer to someone else or do nothing.  In the second place, the son did not need to be there to call either and a call could have been made immediately.

As to the decision to withhold food and water, this may have been decided AFTER the primary care was rendered and decided by the family once a prognosis for recovery was made.  

I would suggest a conversation with the District Attorney's office in your area.  They may wish to begin an investigation.

If you have the standing (a family member, for example) you may have some ability to file a wrongful death suit civilly, if you have the money to do so, in some areas.

These are some ideas.  Feel free to follow up with additional questions.

For your general information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!


Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:

Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships

Negatives of Arbitration

It's often a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

may not reach a binding decision
unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final

Negatives of Litigation:

waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record

---------- FOLLOW-UP ----------

QUESTION: Thank you so much for the quick response and your thoughts.

Well here is the reality of it which I believe I missed writing in the previous note to you.
The caretaker (she has no medical background and she basically worked to only keep the elder comfortable, follow instructions regarding medications, and keep the elder well-fed 24/7 for the past 6 years. When this episode happened recently, she urged the son to call 911 but he refused to. The caretaker has always been under strict orders not to call anybody including 911 except the son and his wife. The latter (who has medical training but is currently a drug salesperson) had once warned the caretaker to remember "who writes the paycheck" when she tried to call the other son who lives out-of-state about the elder's medical emergency .

Please advice.

Answer
These additional details are even more worrisome.  I think I would absolutely schedule a meeting with the DA's office to discuss the details.  If the DA decides to investigate, you will not be involved of course, as this would be a criminal investigation.  Your state police may even have a elder abuse team that specializes in these matters, you can inquire with them.  Sad turn of events.