August 07, 2013

Is an Oklahoma Woman Being Dehydrated and Starved to Death?

[Guest post by Kevin J. Calvey, vice chairman of Oklahomans for Life. Names of the patient and family members have been changed to protect privacy.]

This past Saturday afternoon, an attorney at National Right to Life forwarded me an email he had received from NotDeadYet.org asking for help from an Oklahoma attorney in preventing a woman in Oklahoma from being starved and dehydrated to death. I contacted NotDeadYet.org and learned the names of the parties involved, and the phone numbers of the woman's sisters.

The woman, Sherry, is only 45 years old, and was found in an unresponsive state just 15 days ago. She was unable to feed herself or drink on her own. Four days ago, just 11 days after Sherry was found unresponsive, Sherry's husband asked that all artificially administered food and water be denied to Sherry. He also, we discovered later, attempted to sign a Do Not Resuscitate (DNR) order for Sherry, which some medical personnel mistakenly believed was a DNR from Sherry herself.

Sherry's sisters and parents asked me to help get food and water for her. Fortunately, Oklahoma has a law, the Hydration and Nutrition for Incompetent Patients Act, enacted by the Oklahoma Legislature in 1986, at the behest of Oklahomans For Life, our state's National Right to Life affiliate. This law presumes that an incompetent patient would want food and water, even if artificially administered, unless it is known that the patient, when competent, indicated otherwise. The law presumes, in other words, that when death comes, the individual would expect to die from an underlying illness or injury, not from starvation or dehydration -- even if the patient's next of kin or guardian orders that food and water be denied, as Sherry's husband did in her case.

Unfortunately, it appears that many in Oklahoma are unaware of this protective law. I forwarded a copy of the law to Sherry's sisters, who presented it to the nursing home at which Sherry was residing. The nursing home, which had previously appeared to want to help Sherry, did not believe that the law applied to them, and suggested that the sisters would have to get a lawyer to require them to provide food and water against the wishes of Sherry's husband. The hospital at which Sherry had previously received her feeding tube, a "peg tube," also was apparently unaware of the law, as the hospital had removed the tube at the request of Sherry's husband.

So early Monday morning, I met the sisters at the District Court in the mostly rural county where Sherry resides. I had never tried a case in this county, and was told that the judges in this county were hostile to lawyers from outside the county. When the judge arrived, she read the Application for Ex Parte Temporary Restraining Order that I had filed, along with the other pleadings in the case. Then she asked me to take testimony from one of the sisters, Susan. After a few moments of testimony, the judge granted our request for a Temporary Restraining Order (TRO), requiring the nursing home and Sherry's husband to provide food and water until a further hearing on Thursday. I contacted the nursing home to inform the administration about the court order, and then drove to the nursing home to present the TRO in person, Susan following behind me.

When Susan and I arrived, Sherry's daughter ran out the front door of the nursing home and began screaming epithets at Susan (her aunt) and at her own grandmother (Sherry's mother), who was also a Petitioner in the case. It was not clear at first that the nursing home would comply with the TRO.

The head nurse put me in touch with the owner of the nursing home, who is also an attorney. The owner had never heard of the Hydration and Nutrition for Incompetent Patients Act, nor had the head administrator of the nursing home. Once they understood the law, they agreed to comply. The nursing home explained that the IV and feeding tube would have to be inserted at a hospital, since the nursing home was not equipped to do so. They called an ambulance to transport Sherry to the hospital, in the adjoining county.

I wanted to make sure the nursing home would follow through on its promise to comply with the TRO. When the ambulance finally arrived, there was a brief further delay when the ambulance driver initially said the hospital Emergency Room was refusing to admit Sherry. But the head nurse clarified the reason for admission, and the ER agreed to admit Sherry.

I followed the ambulance to the hospital, where I met with Sherry's sisters and mother, and a family friend. We were soon able to visit Sherry in her room. The doctor said there was a Do Not Resuscitate (DNR) order on file. I asked if the family could have a copy. When the nurses provided a copy, I noticed that the DNR had been signed just 4 days before, when Sherry was already legally incompetent. Then I noticed that it was not signed by Sherry at all, but by her husband. I pointed out the flaw in the DNR document to the doctor, who examined the document herself and then agreed with me that the DNR was invalid. Had I not pointed out the flaw, the doctor and nurses would have abided by this false DNR, in the mistaken belief that it was valid. How many other DNR's out there are falsely or fraudulently drafted? It is critically important that medical personnel always examine a DNR to ensure that it is valid.

The IV was now in place, and the nurses mentioned that Sherry appeared to be improving slightly. She had a fever of 102.5 degrees when the ambulance had arrived at the nursing home (likely due to the dehydration, either directly or indirectly, as the result of a body now too weak to resist infection), and already Sherry's temperature had improved. At that point I left the hospital, having done all I could to ensure a better outcome for Sherry.

Unfortunately, we were too late. Susan texted me about an hour after I left, to say that Sherry's dehydration had been so severe that she was having kidney failure, and pneumonia. As a result of being dehydrated, Sherry was too weak for the surgery necessary to put in a feeding tube. She would need kidney dialysis, which itself was not likely to improve her situation. Her body was shutting down.

At the time I write this, Sherry has been transported back to the nursing home, with the consent of her family. She is not expected to live much longer. This outcome is solely the result of Sherry not receiving food and water. She was not dying of the condition which caused her to be unresponsive. After only 15 days, it is far too early for a prognosis that her condition is permanent or fatal. People can and do recover from unresponsive states like Sherry's every day. It is entirely possible that Sherry would have recovered, had she not been dehydrated and starved to death.

I have wondered: What if the nursing home and the hospital had been aware of the law, the Hydration and Nutrition for Incompetent Patients Act, in the beginning?

In retrospect, I did everything I could. So did Sherry's family. I am at peace, and I hope Sherry's family is at peace, too. I think the nursing home wanted to help Sherry, but mistakenly thought they had to abide by her husband's wishes regarding the matter of providing food and water to Sherry.

So why did the husband remove food and water from his wife so soon after she became unresponsive? According to my clients, Sherry's husband admitted smoking methamphetamine, and persuading Sherry to smoke it as well. And according to my clients, for a few days before Sherry became unresponsive, Sherry had a black eye. Sherry evidently had blood in her urine when she was first admitted to the hospital 15 days ago; the cause of this blood in her urine is, as yet, unexplained. The black eye and blood in the urine could be consistent with a fall, but they could also be consistent with a beating. And several years ago, Sherry filed for a Victim's Protective Order against her husband, and filed for divorce, although Sherry did not follow through with either of those legal actions. Supposedly, Sherry's husband also told one of the family members that he had a life insurance policy on Sherry.

Did Sherry's husband beat her into a coma? Did she overdose on methamphetamine she got from her husband? It is too early to jump to such conclusions. But if he had abused her, it might well explain why he was apparently so eager for Sherry to die, and die in a way that might cover up the physical evidence of abuse, if abuse had occurred. (Dehydration causes "mottling" of the skin, which looks like multiple bruises, and could easily "mask" other bruising on the skin, such as bruising from a beating. Sherry had significant mottling by the time she left the nursing home today). I can't think of any other reason why Sherry's husband wouldn't wait a few more days or weeks to see if she would recover, like thousands of other people in unresponsive states. I hope at least that there is an investigation of Sherry's death when it occurs, which, sadly, appears will happen soon.

How many others in unresponsive states, in Oklahoma and throughout the US and the world, are dehydrated and starved to death by those who supposedly are their "loved ones," but who have an interest in hastening death?

We won a skirmish today, getting the TRO, but lost the battle, at least with regard to Sherry. But perhaps Sherry's story will lead to further reform of this area of the practice of medicine. Perhaps Sherry's sad story will wake up the medical profession, the legal profession, and the nursing home industry to their duties under the law: no patient will be dehydrated or starved to death -- even if that patient's next of kin or guardian instructs that the patient be dehydrated or starved to death -- unless that patient, while competent, has expressly chosen, if he or she should become incompetent, to be denied food and water.

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