The Mississippi health care power of attorney, or “Advance Health Care Directive,” contains a section where you may give the name, address and phone number of your primary physician.  Why is that section there?  While it may give a hospital or doctor the contact information of the physician who can supply your medical history in an emergency, there is another important reason.  A recent court decision notes that a health care agent may not have authority to make health care decisions unless the principal’s primary physician has determined the principal to be incapable of doing so.
In the recent Mississippi Supreme Court case of Tarvin V. CLC of Jackson, LLC, the court considered whether Debra Tarver waived her right to sue her father’s nursing home.  On her father’s behalf, she had signed a nursing home Admission Agreement which contained an arbitration provision. After her father (Caldwell Tarvin) died, she brought a wrongful-death suit against the nursing home, Pleasant Hills Community Living Center.  Pleasant Hills moved to dismiss the case and to compel Tarvin to submit to binding arbitration. The trial judge granted Pleasant Hills’ motion, and Debra appealed.
The parties agreed that the only issue on appeal is whether Caldwell’s primary physician had determined that he lacked capacity, such that Debra was qualified statutorily to act as his “surrogate” and to bind him to the arbitration agreement.  Sections 41-41-201 to 41-41-229 are codified as the “Uniform Health-Care Decisions Act.”  Section 41-41-211 states that “[a] surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.”
Section 41-41-211 specifically designates an adult child as a person who may act as a surrogate.  Under section 41-41-223, an individual is “presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive, and to designate or disqualify a surrogate.”  “Capacity” is defined in section 41-41-203(d) as “an individual’s ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.”  “Primary physician” is defined in section 41-41-203(o) as “a physician designated by an individual or the individual’s agent, guardian, or surrogate, to have primary responsibility for the individual’s health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.”
There was no evidence in the record that Caldwell had “designated” Cassandra Thomas, M.D. as his primary physician, and the court found no evidence that she or any other “agent, guardian, or surrogate” had designated Dr. Thomas as Caldwell’s primary physician.
Pleasant Hills does not point to any “designation” in the record but instead argues that Dr. Thomas was Caldwell’s “primary physician” because she “undertook that responsibility” under the Act.  However, the record does not support that argument.  At most, the record supports that Dr. Thomas saw Caldwell — an older gentleman in his mid-seventies — at her office in January 2005, and that she was the attending physician for Caldwell’s hospital stay in August 2007, just before his admission to Pleasant Hills.  Because the Act requires determination by a primary physician that an individual lacks capacity before a “surrogate” properly can make a healthcare decision for that individual, the Supreme Court reversed the trial court’s order compelling arbitration and sent the case back to the trial court.
Tarvin V. CLC of Jackson, LLC, No. 2015-CA-00145-SCT  http://courts.ms.gov/Images/Opinions/CO113982.pdf
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