WASHINGTON – Gay-rights groups hope a California man’s lawsuit against a Baltimore hospital that refused to let him visit his dying partner will be the beginning of the end of what they say has always been a problem.
“Every week we get calls about how same-sex couples have to argue their way into a loved ones’ hospital room because the staff resists recognition of them as family,” said David Buckel, an attorney for a gay rights legal organization.
But hospital workers say while there may be misunderstandings, there is no pattern of discrimination against same-sex couples, regardless of “family members only” rules that hospitals have.
“Letting a gay partner in is not one person’s decision. And the chances of the entire emergency room discriminating against gays is highly unlikely,” said Cara Magee, an emergency room nurse at Georgetown University Hospital.
The lawsuit, believed to be the first of its kind in the nation, was brought by Bill Flanigan against the University of Maryland Medical Systems in February. Flanigan claimed he was not allowed to see his partner at the Shock Trauma Center in Baltimore where he was being treated for AIDS-related complications that took his life.
Flanigan said he had a durable power of attorney for Robert Daniel’s health care decisions and legal documentation that he was Daniel’s legal domestic partner in California.
But the chief physician at Shock Trauma insisted that the only reason Flanigan was kept from Daniel’s side was because doctors were too busy treating him for multiple organ failure.
“Very skilled nurses run the floor,” said Dr. Thomas Scalea, and they decide who is let in based on the patient’s condition. “At the time it was not appropriate for anyone to see Mr. Daniel because we were busy taking care of him.”
Scalea said that while gay rights need to be addressed, “This is not the test case for that issue.”
But gay-rights activists see this case as the threshold to recognition of same-sex marriages, or at least recognition of same-sex relationships.
“I think winning this type of lawsuit will definitely send a message to hospitals and health care providers that powers of attorney must be taken seriously,” said Tiffany Palmer, legal director for the Center for Lesbian and Gay Civil Rights.
Buckel of Lambda Legal Defense and Education Fund said he has had to wave documents proving his power of attorney for health care decisions and talk to various hospital supervisors before getting permission to see his sick partner.
Magee, the Georgetown nurse, said she has heard stories about gays who were not allowed in hospital rooms, although her hospital has never turned away a gay partner.
“For the times that I’ve heard about that happening it was a matter of proof,” she said. She had never heard of a hospital that did not honor a power of attorney.
General hospital rules allow only blood or legal family members to visit patients. But sometimes those closest to a patient may not be blood or legal relatives, so hospitals interpret “family” on a case-by-case basis.
Buckel also said the Shock Trauma Center’s treatment of Flanigan violates the standards of the Joint Commission on Accreditation of Health Care Organizations, a non-profit organization that accredits 80 percent of the hospitals in the nation. The federal government recognizes JCAHO accreditation for Medicare and Medicaid reimbursement, said Charlene Hill, spokeswoman for the organization.
Hill said JCAHO standards make clear that family may not be legal relatives. If a person can provide valuable information about the patient’s health and knows the patient’s wishes, then that person can be considered family, she said.
In Flanigan’s case, Scalea said proof of relationship was not the issue, time was. Once Daniel’s condition was stabilized, Flanigan was permitted in and it was only coincidence that Daniel was ready for visitors when his sister and mother had arrived.
Buckel called the timing “a remarkable coincidence.”
Until family was let in, Daniel made his own health care decisions, Scalea said. Once he became unconscious, Scalea said, Flanigan was involved in every discussion about Daniel’s health.
Hill said University of Maryland Medical Systems is a JCAHO-accredited hospital. Accreditation is voluntary, which means, “they’re inviting us to do an audit of their quality of care,” she said.
Hospitals can lose their accreditation if found to have an immediate threat to a patient’s safety or make a medical error and take no action to prevent further errors, she said.
But she does not think the University of Maryland Medical Systems risks losing its accreditation and is surprised JHACO is used as the basis for the lawsuit.
“It is unusual for our standard to be used to determine negligent care,” she said. “Although our standards are used as evidence for people to determine what the law should be.”
Scalea said he is troubled by the charge of discrimination that the suit raises.
“Our staff cuts across all racial lines, religions and sexual orientations,” he said. “We provide high quality compassionate health care. Mr. Daniel received high quality compassionate health care.”