Partner Medical Rights
Gay Basics: Partner Medical Rights Documentation
Art Epstein
From GFN.com
December 19, 2003
Earlier this year a Baltimore jury sided with a hospital who prevented a gay man from visiting his dying lover for four hours because the man, the patient's longtime partner, was not considered "family."
William Robert Flanigan Jr., the domestic partner and executor of the estate of Robert Daniel, accused the Shock Trauma Center at the University of Maryland Medical System of discrimination, for not letting him see his partner until after Daniel slipped into unconsciousness because the men were a gay couple.
In court testimony, chief physician at Shock Trauma, Dr. Thomas Scalea, said Flanigan was barred because doctors were too busy trying to save Daniel's life to allow visitors. Flanigan was finally permitted to see his partner but only after Daniel's mother and sister arrived hours later. By that time, Daniel was no longer conscious, his eyes were taped shut, and he subsequently died without being able to say goodbye to his partner.
Before reading the verdict which rejected Flanigan's suit, the jury said it felt sorry for Flanigan's loss and thought the University of Maryland Medical System could have "communicated better" with him.
"Tragically, gay and lesbian partners too often have to argue their right to hospital visitation with ill loved ones, even in the middle of a family crisis," said David Buckel, Lambda Legal’s senior attorney who represented Flanigan in the suit.
"The question may be, under similar circumstances, would a medical team have prevented a heterosexual man from visiting his critically ill wife in what might have been her final moments, asks Russ E. Sommers, a Bay Area attorney who works with gay families. "One suspects the hospital might have found a way to allow the 'married' couple to have a moment together."
Because nontraditional long-term relationships have no legal status, says Sommers, disastrous consequences can result when one partner becomes incapacitated or disabled.
Partner Medical Rights Documentation, sometimes called a Durable Health Care Power of Attorney, is the most basic of documents a gay or lesbian couple should have. It should be one that provides that partners:
Have first priority for visitation in hospitals.
Receive information about their condition.
Authorize medical treatment if incapacitated.
Authorize the release of remains from a hospital.
Make provisions for services and last requests.
If someone becomes incapacitated and has not appointed in advance a decision maker, under the law of most states some member of his or her biological family will be appointed to manage his or her affairs – and to make decisions, irrespective of the ill person's wishes, says Sommers.
"The reality is, the preference imposed by the law does not consider long-term non-heterosexual relationships." Having current documentation in place is critical, Sommers said – at least until gay marriage becomes the law of the land.