Selected Medical-Ethical Issues

Brain Death: Definition/Determination
KRS 446.400

Do Not Resuscitate
KRS 311.623

“Kentucky Living Will Directive Act”
KRS 311.621-311.643

HIV Testing for Patients
KRS 214.181, 214.625, 214.645

KRS 438.250

Recognizing Patient Autonomy Decision Making
“Kentucky Living Will Directive Act”
KRS 311.621-311.643

A Patient with Decisional Capacity
KRS 311.623

A Patient without Decisional Capacity and with a Declaration
KRS 311.629

A Patient without Decisional Capacity and without a Declaration
KRS 311.631

Woods v. Commonwealth, 142 S.W.3d 24; 2004 Ky. LEXIS 187 (Ky. 2004):
“ . . . [W]e construe KRS 311.631 in light of KRS 311.629(3) as permitting the withholding or withdrawal of life-prolonging treatment only when the patient is in extremis, i.e., permanently unconscious or in a persistent vegetative state, or when inevitable death is expected by reasonable medical judgment within a few days.”

“To summarize, when an incompetent patient has not executed a valid living will or designated a health care surrogate, KRS 311.631 permits a surrogate, designated in order of priority, to make health care decisions on the patient's behalf, including the withholding or withdrawal of life-prolonging treatment from a patient who is permanently unconscious or in a persistent vegetative state, or when inevitable death is expected by reasonable medical judgment within a few days. The statute requires that such decisions be made in good faith and in the best interest of the patient. . . . If there is no guardian and the physicians, family, and ethics committee (if there is one) all agree with the surrogate's decision, there is no need to appoint a guardian. If the surrogate, as here, is a judicially-appointed guardian, and the physicians, family and ethics committee agree with the guardian's decision, there is no need to seek court approval or the appointment of a guardian ad litem; and that is true whether the guardian is a member of the patient's family or an institution or, as here, a governmental entity. If there is a disagreement, however, resort may be had to the courts; and, if so, the burden will be upon those seeking to withhold or withdraw life support from the patient to prove by clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state, or that death is imminent, and that it would be in the best interest of the patient to withhold or withdraw life-prolonging treatment.”

Emergency Guardianships Request Letter
KRS 387.740

Guardianship and Conservatorship
KRS 387.500-387.990

False Claims Act
Federal False Claims Act (31 USC §§ 3729 through 3733)

Kentucky Laws
KRS 205.8451, 205.8461, 205.8463, 205.8465, 205.8467, 205.8471, 205.8475

Rhoad & Fornataro, “A Gathering Storm: The New False Claims Act Amendments and
Their Impact on Healthcare Fraud Enforcement,” 21 (6) The Health Lawyer 14-22
(August 2009) [summary and discussion of the May 20, 2009 Fraud and Enforcement
Recovery Act of 2009 (FERA), “the most comprehensive and significant amendments to
the civil False Claims Act” in 25 years]

As additional educational material, I also recommend the following:

M. Kapp, Legal Aspects of Elder Care (2010)

L. Frolik & A. Barnes, Elder Law: Cases and Materials (Fourth Edition, 2007)

I. Doron (ed.), Theories on Law and Ageing (2009)

Courtesy of Winsor Schmidt, J.D., LL.M [PDF]