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Ignoring "Legal" Advanced Directive.

Aug 4, 2012

A little while ago I had a blood Gas of just 8 with PCP, My cd4 count is too low to measure. A professor decided, while I was poorly to treat the PCP, what do I do to get this matter resolved.

Response from Ms. Douaihy

Dear Writer,

I am very grateful for you writing in with such a personal and important question. I'll start by saying that I hope that you feel strong both physically and emotionally.

It sounds like you are asking what remedy you may have when your medical treatment team ignores your advanced directives. As you know, "Advanced directives" are legal instruments that allow patients to plan for the future by documenting their health care treatment preferences in the event of physical or mental incapacitation. This notion of self-determination in medical treatment flows from the liberty interest we have under the Due Process Clause of the US Constitution allowing us to refuse unwanted medical treatment.

Advanced Directives include "Health Care Proxy" designations, "Power of Attorney" forms, and "Living Wills". Importantly, advanced directives are not immutable, meaning they are fully revocable and can be changed until the time the principal becomes incapacitated. Use of advanced directives for people living with HIV and AIDS became common practice in the 1980s and 1990s and is still encouraged today.

As an attorney in New York state, I have executed hundreds of advanced directives for HIV positive clients. This is one of the legal services that I most appreciate providing to folks BOTH in perfect health and those suffering extremely debilitating illness. I have witnessed the powerful impact that execution of advanced directives may have. Exercising control over future health care and memorializing deeply personal choices like receipt or denial of life-sustaining treatment can be very empowering. It is therefore profoundly troubling to read that your instructions for medical treatment, as set out in your advanced directives, may have been ignored.

If indeed your properly executed advanced directive was disregarded, you may have the ability to bring a law suit against the physician and/or hospital who failed to comply with your wishes. Case law holds that in certain instances, physicians who knowingly fail to honor advanced directives may be held liable for battery and recovery of medical expenses. If you are interested in pursuing a remedy, I advise you to immediately contact an attorney specializing in health law or HIV/AIDS issues in your area. If you would like some help in finding an appropriate attorney in your area, I suggest contacting the Legal Services Corporation who may be able to guide you in the right direction.

I wish you all the best.

Legal Services Corporation website

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