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Friday, April 16, 2010

Obama only pretends to re-write every state's domestic laws to benefit gays & lesbians

As I write this, the online version of today's Washington Post has the following breathtaking headline and subhead:

Same-sex partners given hospital visitation rights:
President Obama mandates hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney.

In the accompanying article, we read:

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.

Administration officials and gay activists, who have been quietly working together on the issue, said the new rule will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation's health-care institutions. Obama's order will start a rule-making process at HHS that could take several months, officials said....

Obama's mandate is the latest attempt by his administration to advance the agenda of a constituency that strongly supported his presidential campaign.

At first glance, this appears to be lawmaking by executive order. Of executive orders, Clinton aide Paul Begala gave us this memorable quote in 1998: "Stroke of the pen, law of the land. Kinda cool." The reason the quote is memorable is its casual assumption — in two different senses of that word — of near-imperial power, power that's essentially independent of either chamber of Congress and, indeed, of the American people. 

Those with even a passing familiarity with the history of the civil rights movement will recall that Harry Truman's 1948 executive order desegregating the U.S. military preceded any significant congressional action on race relations by a decade or more. I expect we'll see today's announcement compared to that one.

But when one turns to the Obama White House's own website, and in particular to its "Presidential Actions" page, one finds that although there are other "executive orders" listed there which pertain to other matters, the new policy regarding gay rights and hospitals is labeled merely a "presidential memorandum," not an executive order. And when we turn to the memorandum itself, we find something considerably less impressive than that which the WaPo — and, dare I say? — the Administration's spinmeisters have jointly tried to project.

First, the memo directs the Secretary of Health and Human Services to

[i]nitiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.

Technically, then, this isn't a command, but a condition for funding: Were a hospital to decide to forgo Medicare and Medicaid funding, it could, if it wished, maintain visitation policies permitting only traditional visitor classifications that might exclude, for example, unmarried romantic partners of either sex or any sexual orientation. Most hospitals do accept that funding, and so will have to comply with the rules HHS attaches to that funding. But even so, this policy change doesn't protect only gays and lesbians, but rather empowers all hospital patients, whether gay or straight, at all federally funded hospitals.

Similarly, the second command in the memo directs HHS to

[e]nsure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care.

Again, this is a condition of funding, not a direct command. And again, it's directed not only to gays and lesbians, but to all patients, gay or straight, who've signed "advance directives" that give "patients' representatives" — gay or straight, family member or friend — the power to make medical decisions on their behalves. So what does it do, exactly? It says that HHS should make sure hospitals who receive federal funds comply with already existing federal regulations that respect state laws already on the books — laws that extend patient rights without reference to whether they or anyone else involved is gay or straight. This is supposed to qualify as a momentous step forward for gay rights?

The memo's third and final command is the only one specifically applicable to the gays and lesbians who are trumpeted as the beneficiaries of The One's actions — an entirely toothless requirement that the Secretary "[p]rovide additional recommendations to [Obama], within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families." Obama might as well have written: "Between now and the November elections, find me some other excuse to claim I've done something for gay rights."

Who can act on your behalf is, in general, not a question of federal law — not even the traditional kind of federal law where each chamber of Congress passes identical bills and the president then signed them. Instead, this is traditionally a matter of state law, an intersection of agency law and domestic/family law. That's why the (entirely laudatory) trend toward enforceable durable powers of attorney and health-care directives has come from the state legislatures, most of them enacting model legislation, but some of them experimenting with tweaks, in our "national laboratory" of continuing policy-making. In our system of federalism, writing or re-writing these kinds of laws is simply not part of the POTUS' job description. (Compare and contrast Truman's executive order on military desegregation, given to organizations over which he is constitutionally made commander in chief.) 

Indeed, doing what the WaPo's sub-headline suggests — simply "mandat[ing that] hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney" — would, in my humble opinion, be unconstitutional if attempted by executive order. It would be quite possibly beyond the combined constitutional power of Congress and president. But when we have a president who wants to take credit for causing the seas to recede, we ought not be surprised to see him claim to have similarly exerted his lordly powers over some bigoted local hospital administrators.

Lest you have any doubt that this is all smoke and mirrors — a manufactured event cynically designed by the Obama White House as a sop to those who are otherwise growing unsatisfied with a perceived lack of action on "gay rights issues" by The One — read the penultimate paragraph of the memorandum:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

This paragraph, friends and neighbors, is the equivalent of Emily Litella's closing lines to Chevy Chase in the old SNL "Weekend Update" skits: "Never mind."

And thus, in the giant Venn diagram of American politics, do two sets become ever more nearly exactly congruent: Those who support Obama, and those whom he's successfully duped.

I'm not against this very modest and mostly illusory policy tweak in favor of patient empowerment. I'm certainly not distressed that it benefits gay patients as well as straight ones. But I'm against charlatans. And Obama is one.

---------------------------

UPDATE (Fri Apr 16 @ 10am): Regarding the specific impetus for this action, the WaPo article reports:

Officials said Obama had been moved by the story of a lesbian couple in Florida, Janice Langbehn and Lisa Pond, who were kept apart when Pond collapsed of a cerebral aneurysm in February 2007, dying hours later at a hospital without her partner and children by her side.

Obama called Langbehn on Thursday evening from Air Force One as he flew to Miami, White House officials said. In an interview, Langbehn praised the president for his actions.

"I kept saying it's not a gay right to hold someone's hand when they die, its a human right," she said, noting that she and Pond had been partners for almost 18 years. "Now to have the president call up and say he agrees with me, it's pretty amazing, and very humbling."

But as reported by the New York Times in its May 2009 article about Ms. Langbehn, the Miami hospital in question denied that the grounds on which it prevented Ms. Langbehn access were that she was insufficiently related to the late Ms. Pond. Rather, her attempts to join Ms. Pond were at least initially frustrated on the basis that no visitors should be permitted in the trauma emergency room where hospital personnel were trying to administer life-saving procedures upon Ms. Pond. Later, when Ms. Pond was moved to intensive care, Ms. Pond's adopted children were also prevented from visiting — not because they had been adopted by a lesbian, but because they were 14 or under. After it received a copy of the medical power of attorney authorizing Ms. Langbehn to receive information and made decisions on behalf of Ms. Pond, the hospital did consult with Ms. Langbehn regarding Ms. Pond's medical options, including the placement of a brain monitor and possible surgery; Ms. Langbehn did not allege that she would have made any different decisions had there been any more thorough consultation. The only indication of any specifically anti-gay bias appears to have been a stray comment by a social-worker to the effect that Florida was an "anti-gay state." In a supposedly similar case from Washington State, Sharon Reed was restricted in visiting her dying lesbian partner, Jo Ann Ritchie, on grounds that Ms. Reed's particular actions were interfering with a nurse's provision of medical care — not on grounds that Ms. Reed was a gay partner (instead of a straight spouse). Nothing in yesterday's memo requires, either directly or (through federal funding approval) indirectly, that hospitals permit unlimited visitation everywhere and at all times even to traditional opposite-sex spouses; if "immediate family members" are restricted, so too may be gay partners. And whether the visitation restrictions placed upon either Ms. Langbehn or Ms. Reed were or were not reasonable as a matter of medical judgment in their particular circumstances, nothing in yesterday's memo would have changed either of those results.

I don't doubt that there have been gay partners who've been discriminated against by hospitals against on the basis of their being gay. There are indeed anti-gay bigots, and some of them work in hospitals, and no doubt some of them have made arbitrary and unreasonable decisions regarding visitation rights based on their animus against gays. But more often, hospitals make their equally arbitrary and unreasonable decisions for other reasons having nothing to do with anyone's sexual orientation, simply because they're imperfect and fallible human institutions. And there are surely a vanishingly small number of hospitals with formal policies requiring, or even permitting, the denial of visitation rights to a gay partner when a straight spouse's visitation would be permitted. I very much doubt that yesterday's presidential memorandum, or the HHS rule-making process it directs, will end up changing much of anything at a practical level.

Posted by Beldar at 07:15 AM in 2010 Election, Current Affairs, Law (2010), Obama, Politics (2010) | Permalink

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Comments

(1) rfy made the following comment | Apr 16, 2010 8:51:13 AM | Permalink

Governing by press release for poll numbers. Who'd a thunk it?

(2) Antimedia made the following comment | Apr 16, 2010 3:33:55 PM | Permalink

And yet nearly 40% of the public still support the man. It boggles the mind.

(3) LYNNDH made the following comment | Apr 16, 2010 3:41:17 PM | Permalink

Actually, I believe that non-family members are kept away by HIPPA (ok, on sure of spelling). Even I , a husband, had dificulty getting info about my wife. You need to give permission before hand so medical providers can give info. A Fed. Law I believe.

(4) Beldar made the following comment | Apr 16, 2010 4:00:56 PM | Permalink

Lynn (#3), yesterday's executive memo didn't directly deal with medical information as such. But you're thinking of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It does indeed contain rules that help secure patients' privacy rights, and to some extent those rule duplicate state privacy laws. According to the HHS website (boldface and underscoring mine):

To make sure that your health information is protected in a way that does not interfere with your health care, your information can be used and shared:

  • For your treatment and care coordination
  • To pay doctors and hospitals for your health care and to help run their businesses
  • With your family, relatives, friends, or others you identify who are involved with your health care or your health care bills, unless you object
  • To make sure doctors give good care and nursing homes are clean and safe
  • To protect the public's health, such as by reporting when the flu is in your area
  • To make required reports to the police, such as reporting gunshot wounds

Your health information cannot be used or shared without your written permission unless this law allows it. For example, without your authorization, your provider generally cannot:

  • Give your information to your employer
  • Use or share your information for marketing or advertising purposes
  • Share private notes about your health care

The provision I've put in boldface is somewhat oddly written, but what it boils down to is that when and if a patient gives consent for someone to have access, that someone may indeed be granted the access; otherwise, not; and that includes family members. There's no automatic presumption or default value, in other words, that family members are entitled to access an adult patient's medical records. If you give your shoe salesman consent, then he can; if you don't give your wife consent, then she can't. (The relevant federal regulation implementing the statute on this point appears at 45 C.F.R. § 164.508, but it's an unfortunately typical example of bureaucratic impenetrability.)

The sort of health care directives referenced by yesterday's opinion — which, again, are creatures of state law, not federal law, and which were already in place and entirely valid and binding upon hospitals even before yesterday's memo — all are drafted to show consent that is adequate under HIPAA. Such designees are termed "personal representatives" under HIPAA and the implementing regulations, and they have the same rights as the patient would himself or herself. See 45 CFR § 164.502(g) or the corresponding page on the HHS website. But again, spouses and family members of adult patients aren't automatically considered to be "personal representatives" by default, which is why it's such a good idea for everyone to choose and document who he or she wishes to serve as personal representative(s) before one becomes incapacitated from doing so.

(5) A.W. made the following comment | Apr 16, 2010 4:32:27 PM | Permalink

I work in health, and bluntly how would we even know if two men are lovers?

I mean if the patient is conscious and says, "please let this person in" we will, no questions asked. it could be his lover, or it could be his favorite beer buddy, we don't care.

But if he is unconscious, how would we ever know he is the other guy's lover?

(6) Beldar made the following comment | Apr 16, 2010 4:36:41 PM | Permalink

A.W. (#5): That's one of the things that durable powers of attorney are intended for. If someone's incapacitated, then decisions he or she could make may instead be made by the designated personal representative. And that could include decisions regarding visitation.

True last week, true this week — and unchanged by The One's kabuki show yesterday.

(7) Gregory Koster made the following comment | Apr 17, 2010 12:35:17 AM | Permalink

Dear Mr. Dyer: Here is the real antecedent of The One's kabuki, not Truman's order on the services. Even Kennedy's exec order had more substance than this gossamer...

This should set to rest the idiotic notion that The One is a friend to gays. He plainly feels distaste, but unlike Israel, is much more constrained about following his natural inclination and spitting. Even so, once the 2010 elections are over, look for gays to receive a "Whaddaya gonna do about it, chum---vote for the GOP? Hahahahhahaha..." moment.

On medical privacy: the laws have to be enforced by those not necessarily familiar with them. If you want to see your unconscious friend, and are facing a practical nurse who has been on the job a month, look to be excluded, law or no law. Who does the nurse have to satisfy? Her bosses, who have to deal with the feds on dozens of other issues. In any conflict, look for patients, those close to them, and common sense, to lose out to "procedure" which can seldom be produced in writing. Obamacare will only make matters worse. Given the huge probability of conflicts within Obamacare, look for a "Don't do anything, that way you won't get into trouble," mentality to set in. Set in concrete, that is.

Sincerely yours,
Gregory Koster

(8) BobN made the following comment | Apr 17, 2010 4:14:38 PM | Permalink

Your summary of the Florida incident leaves out portions that don't support your conclusion that nothing extraordinary and nothing anti-gay was going on.

Oversight?

(9) BobN made the following comment | Apr 17, 2010 4:16:01 PM | Permalink

"But if he is unconscious, how would we ever know he is the other guy's lover?"

How do you know that the woman accompanying an unconscious male patient is his wife?

(10) Beldar made the following comment | Apr 17, 2010 8:01:43 PM | Permalink

BobN (#8): I wasn't present, so of course I have no personal knowledge of what happened in connection with the late Ms. Pond's hospitalization. I summarized what I believe to be the pertinent facts, drawing upon Mr. Langbehn's allegations (through her lawyers) in the lawsuit she filed against the hospital, as in turn those allegations were described by the United State District Judge who concluded that she had no legal case. In addition to linking the 2009 NYT article (which generally credited Ms. Langbehn's allegations uncritically), I also tracked down, and posted to my blog's associated webspace, and then posted a link to, a .pdf scan of the District Judge's memorandum opinion.

Thus, you or any other reader are welcome to look at the same materials I've looked at. If you reach different conclusions, such is your right. And if you want to argue different conclusions in a civil fashion in my comments section here, you or other readers are welcome to do so. Since you haven't been specific, though, I have to guess at the faults you've found with my summary of the factual background.

Like the District Judge, I worked from the presumption — solely for purposes of argument — that Ms. Langbehn's specific factual allegations were indeed true. Thus, I'm not second-guessing, for purposes of this blog post, whether she was or wasn't told by a social worker that Florida was an anti-gay state; I'm assuming she was indeed told that. But that is the closest — indeed the only — specific factual allegation she and her lawyers made which could conceivably have anything to do with whether what happened to her was the result of anti-gay animus. And except in a sort of grand "conspiracy theory" sense, the social worker's statement doesn't explain, or even tie into the causal chain of, the events Ms. Langbehn complained about.

If the social worker had said instead, "I know from working here at this hospital for four years that there is a secret, unwritten policy that's been enforced through firings when necessary, and the secret policy is that we act mean to all partners of gay patients and refuse to recognize their durable powers of attorney, even though the hospital's official policies forbid discrimination," then that would have been a different kettle of fish entirely. As it is, the social worker's accusations of anti-gay animus "in the air" are about as vague and overbroad as they could have been. And the District Judge was correct to conclude that the social worker's statement really didn't amount to much, even if we presume she made and even believed it, just like Ms. Langbehn alleged.

Now, Ms. Langbehn has been through a lot; it's easy to sympathize with her plight on grounds having nothing to do with sexual orientation, and I do; and in my experience in 30 years of law practice, people who've been traumatized by unpleasant events like the sudden death of an apparently healthy loved one generally lack dispassionate judgment, and they sometimes blame others unfairly, and they sometimes impute bad motives where none existed.

Before I'm going to join her in doing that, however, I'm going to need objective facts that directly or inferentially can prove anti-gay bias; her speculation isn't enough, nor is anyone's. She might think some of the other people she dealt with secretly harbored such thoughts, or she might think that such animus was the secret and sole explanation for other unpleasant things that happened to her (e.g., the hospital's delay in informing her of Ms. Pond's transfer from the ER to the ICU). But that's speculation, and you can't win lawsuits with speculation, and you have a very hard time impressing me with it when there are equally or more persuasive explanations for what happened (e.g., busy night, dropped ball — not anti-gay, just unfortunate).

Bottom line: I have no reason to believe that any of the unfortunate things that happened to Ms. Langbehn had anything to do with her or Ms. Pond being gay, because even if all the objective facts she's alleged are true, they don't make out even a prima facie case that anti-gay animus caused any of the unfortunate events of the night. You're free to reach the contrary conclusion, and you're free to argue it here (if you remain civil), but if you think I've ignored important facts, point them out as part of that argument, please, and point us to your sources as I've pointed my readers to mine.

(11) Ne Oublie made the following comment | Apr 18, 2010 8:43:57 PM | Permalink

A very close friend of mine was denied hospital visitation rights as his partner of 17 years lie dying, not by the hospital, but by his partners family. What does this "memo" from the liar in chief do for those situations? The same thing he has done for the rest of America -- nothing.

(12) Georg Felis made the following comment | Apr 18, 2010 8:46:45 PM | Permalink

I had no idea the President was such a fan of a Dead White Male, in particular, Shakespeare.

"It is a tale told by an idiot, full of sound and fury, signifying nothing." Macbeth (Act V, Scene V)

(13) ray made the following comment | Apr 18, 2010 9:02:07 PM | Permalink

YES, Ne Oublie! Yes! It's not hospitals that deny visitation. It's families who have never accepted their gay relative's partner. When we finally stop blaming hospitals for this stuff, and realize it's the blood relatives who have the problem .. the prejudice, whatever you want to call it ... we will be closer to figuring out what the gay activists really want.

They want to force non-accepting blood relatives into accepting them, via government fiat.

(14) MeTooThen made the following comment | Apr 18, 2010 9:03:51 PM | Permalink

Beldar,

As I commented at different site, I know of no instance of any state or hospital proviso that excludes or forbids any person from being a durable power of attorney for health care (except a minor) nor in my 20+ years of hospital practice, in private, county, university, Catholic, community hospitals any verifiable instance of a gay or lesbian person being barred from visitation. That does not mean that is does not or has not happened. Only that I believe it is rare.

In the memorandum, it reads:

Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides -- whether in a sudden medical emergency or a prolonged hospital stay. Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives -- unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.

"Every day?" "All across America?" "...uniquely affected?"

With all due respect to the President of the United States, this is tendentious at best or an outright lie.

That there is "the rest of the story" (ala Paul Harvey) in the case you cite should come as no surprise. Emergency and critical care is complex and often chaotic. It is very stressful for the hospital personnel and it is routine to bar family members during medical procedures, especially life-saving measures such as resuscitation. Are family members routinely allowed in the operating theater?

As to friends or families not being told of a transfer from the ED to the ICU this is unfortunate but excusable.

That the survivor is aggrieved is also unfortunate but there is no indication that the care given to Ms. Langbehn was in anyway compromised because of her sexual preference, nor as you assert is there evidence of bias towards Ms. Pond.

The memorandum changes nothing with regard to patient care. It is political theater, pure and simple.

It is also deeply cynical and is consistent with much of the previous behavior of the current president.

(15) Croft made the following comment | Apr 18, 2010 9:31:52 PM | Permalink

For what it's worth, I am a hospitalist. That is I take care of patients admitted to the hospital. I admit, manage the day to day activities, and discharge. This is all that I do. I have never seen or heard of any inpatient facility or institution denying visitation to anyone. The patient decides their visitors, not the medical staff. That being said, very few visitors go unnoticed. Truth be told, visitation is one of the best things that happens in a hospital.

There are some restrictions to visitation however and I believe touches on arguments I have heard before. There must be a distinction between visitation and information. I won't, and no one should, give out medically sensitive information without the express consent of the patient. And yes, that often means asking if it is ok to speak freely in a room full of visitors and patient, and refusing to give out information to family and friends. I have a near singular objective and it belongs to the patient.

In the end, this looks very much like someone trying to manufacture a crisis in order to react to it.

Very much beneath the Office!

(16) WJ Alden made the following comment | Apr 18, 2010 9:57:39 PM | Permalink

Reflecting back on the number of times - a hundred or more, easy - I've visited friends and family members in hospitals and nursing homes, including my sister just last week, I struggle to recall even a single instance where I was asked to provide proof of identification or of any sort of relationship. The most I can ever remember being asked to do was sign in at the front desk - and even then no attempt has ever been made to verify my identity.

To me the smoke and mirrors is the attempt to claim that *visitation* for gays is a right frequently denied. It sounds like someone struggling to find a justification for gay marriage.

(17) DRJ made the following comment | Apr 18, 2010 10:16:53 PM | Permalink

Congratulations on the well-deserved Instapundit link. I didn't see anyone else writing about this, and I think it's a big story.

(18) MeTooThen made the following comment | Apr 18, 2010 10:59:16 PM | Permalink

Beldar,

One more point about HIPAA.

This is something that all health care workers do (and MUST) take seriously.

A HIPAA violation can prove quite costly if not devastating to an individual who is found guilty of such an offense as well as their employer.

In our large shared practice (over 120 physicians and almost 1000 employees total) we are educated and reeducated on HIPAA protocol.

So serious is this is the fact that even if a patient's spouse comes to every office visit, if they are not "designated" for the sharing of health information by the patient - in the patient's absence: over the phone, in the office, or if the patient is incapacitated, the spouse may rightly be kept from learning any medical information.

This happens quite frequently and although we are apologetic, we remain firm in our adherence to the rules.

This is very tricky and we make sure that all of our patients are sure as to whom they would like to include for this purpose.

Word to the wise: make sure your family, friends, or partners are so designated as being allowed to know of your medical condition. Otherwise, your health care professionals are duty-bound for your own protection to keep all information private.

(19) ZZMike made the following comment | Apr 18, 2010 11:05:03 PM | Permalink

Two questions:

Why is Obama starting to govern by memo?

Why is Obama issuing a ukase that is more properly done at a Department level? (Like Dep't of Health & Human Services)?

Could it be that this is one more medal he wants to pin on his new navy-blue Admiral's uniform come next election?

(20) Diggs made the following comment | Apr 18, 2010 11:22:48 PM | Permalink

You have to lay down to be a doormat.
GLBT doormats...whodathunk?

(21) willis made the following comment | Apr 19, 2010 12:33:59 AM | Permalink

I'd like to see an analysis of how many hospitals/patients will be effected by whatever Obama is claiming credit for. I bet 98% of hospitals already do this. Your guardian gets to visit already. So what did Obama do?

(22) Zoe Brain made the following comment | Apr 19, 2010 1:07:09 AM | Permalink

Such a thing never happens. Except for this one time:

On October 16, 2000, on a cross-country trip to visit family, Bill Flanigan's partner Robert Daniel was admitted to the University of Maryland Hospital's Shock Trauma Center with a serious illness. Despite the fact that Flanigan and Daniel were registered as domestic partners in California and that Flanigan had with him a Power of Attorney to make health care decisions for Daniel, hospital personnel prevented Flanigan from seeing his partner. Hospital staff told Flanigan that only "family" members were permitted to visit and that "partners" did not qualify. Flanigan was unable to consult with doctors or to tell surgeons of Daniel's wish to forego life-prolonging measures such as a breathing tube. Several hours later, when Flanigan was finally allowed to visit, Daniel was no longer conscious, his eyes were taped shut and doctors had inserted a breathing tube. Daniel never regained consciousness and died three days later.

and this one time

Orbin and her partner of 3½ years, Teresa Rowe, 30, who live in Northern California, were in Fresno for Meet in the Middle 4 Equality, an event protesting the California Supreme Court's ruling upholding Proposition 8.

After marching 14 miles in Central Valley heat, Orbin (who is epileptic) collapsed and suffered three grand mal seizures. A doctor at a first aid center had difficulty finding her pulse, so he called 911.

Orbin said the discrimination started as soon as the paramedics arrived.

"By that time, I was going in and out of consciousness. The paramedics wanted nothing to do with Teresa and she had to practically fight them to be allowed to ride in the ambulance. I remember one of them was very nice and agreed to let her ride with me in the back. Once we got to the hospital, they wheeled me into a hallway and left me, refusing to allow Teresa to be with me."

Orbin said the paramedic told the nurse on duty that she had collapsed after marching 14 miles for civil rights, and the nurse gave her a dirty look and said "ooooh." She continued, "I asked if Teresa could come back with me, but the nurse told me I was in a no visitor zone. When I asked her why everyone else had visitors, she said 'those people are different'."

Orbin said she went to sleep at that point, but she was awakened by a nurse giving her the benzodiazapine Ativan, a drug that causes her to have severe migraine headaches. It was then that she discovered just how bad the situation had become.

"Teresa was finally able to make her way up to the front desk and convince them to get a cell phone to me. When I talked to her, she said she had told the nursing staff not to give me Ativan, but they refused to listen to her. They refused to take my medical cards from her. They refused Teresa's offer to have my advance directive and power of attorney faxed over from UCSF."

Orbin said she asked the nurses several times if Rowe could join her, but each time they refused.

"They just kept looking at my Marriage Equality shirt and giving me dirty looks," she said.

Orbin and Rowe were not reunited until a doctor intervened a few hours later."

and... well, you get the idea.

Of course, sometimes it's the family:

Just such a situation landed a lesbian couple in the national spotlight 20 years ago, after a drunk driver slammed into a car driven by Sharon Kowalski, then 27, leaving her comatose. Kowalski's longtime partner, Karen Thompson, then 37, a physical education teacher at St. Cloud State University in Minnesota, sued Kowalski's parents for guardianship after they refused to recognize the women's relationship, blocked Thompson from visiting Kowalski, and disagreed with Thompson on Kowalski's care.

After a bitter legal battle lasting nearly a decade, a court sided with Thompson. She still cares for Kowalski, who emerged from her coma with severe brain damage and other physical problems."

But often it's not.

[Editing note: Ms. Brain apparently didn't read my request that commenters include references to their sources. Google suggests to me that her three cut-and-pasted quotations come, respectively, from Lambda Legal, Examiner.com, and CommonDreams.org (the last purporting to reprint a Newsday article from 2005). I've also taken the liberty of adding some HTML coding to put her quotations into block quotes, to make clear what she wrote herself and what she's importing from elsewhere. — Beldar, Mon Apr 19 @ 1:30 a.m.]

(23) Anna made the following comment | Apr 19, 2010 2:11:02 AM | Permalink

This story is going around the internet right now:

Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place--wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.

One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold's care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.

Ignoring Clay's significant role in Harold's life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold's "roommate." The court denied their efforts, but did grant the county limited access to one of Harold's bank accounts to pay for his care.

What happened next is even more chilling.

Without authority, without determining the value of Clay and Harold's possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold's lease and surrendered the home they had shared for many years to the landlord.

I personally think it's elder abuse more than it is a gay rights story. But I don't really know what the particulars of the case are, besides the ones enumerated above from a rather partisan source.

Still, it makes me like the government even less.

(24) MeTooThen made the following comment | Apr 19, 2010 7:45:30 AM | Permalink

Beldar,

As you calmly point out, sourcing is important.

The first claim as posted by Zoe Brain, from Lamda Legal:

"On behalf of Bill Flanigan, Lambda Legal unsuccessfully argued before a local jury that the hospital was liable for damages.

This would suggest that the claim had no merit. As I am not a lawyer, I will leave it to others to find the facts and opinions in this case: Flanagan vs. Univ. of Maryland Hospital

The second claim is wholly unsubstantiated and the facts of the claim have not as far as I can tell been adduced. Here is a comment from that same Examiner.com article:

"I am an ER physician myself. I'm also gay. Working with the public, I'm sympathetic to the couple here but I am VERY aware that there are different sides to these stories.

I myself have ejected spouses (same and opposite sex) when I sincerely felt that their behavior threatened the well-being of their family member or disrupts the department enough to impede the care of others. The usual explanation is "I just want to be here," but quite often that means screaming, throwing themselves on top of the patient during medical procedures, cursing at staff, etc. In fact, we've had 3 employees shot and over 30 assaulted in the ER where I trained - and all by family members or friends of patients. And I can only begin to tell you the misrepresentations that follow quickly in the bid to "get back" the staff that stood up for ALL the patients.

I have no idea if there was any of this behavior on the part of this patient or her partner. However, their word alone is not good enough. Witness

The third claim is more complex, it represents a case of disputed proxy in the absence of an advance directive or DPOA. There is no mention that the hospital or any of the staff barred entry because of anti-gay or lesbian bias, but rather this was a case of competing claims between loved ones. I can assure you that competing claims of who should be the proxy for the purpose of substituted judgment happens every day, and all across America. This is an entirely different issue than sexual bias. (Perhaps this is what the president was referring to in is HHS memorandum. But you wouldn't know it from reading it.)

More to the point, the last case above occurred 20 years ago, a time when advance directives and DPOA's where not yet as widely implemented.

Interestingly, the article recycles Flanagan vs. Univ. of Maryland, which as above, seems to have been without merit, and the last claim in the article would easily be avoided vis a vis a DPOA for health care or advance directive. Yet the article claims and is entitled, "For Gays, it Happens All The Time." It's important that you provide such links so people can examine these claims.

In the medical world, the cost to a health care worker of proved bias would be catastrophic, and in this day and age of extreme vigilance against litigation, there already is exceptional negative incentive to keep such bias from happening.

As I said, I believe such bias could have occurred, but I have not yet heard of a verifiable case of such bias in 20+ years in practice, and the examples listed by Zoe Brain do not provide such evidence. If it does happen, I believe it to be rare, a very small number out of millions of patient encounters.

(25) Beldar made the following comment | Apr 19, 2010 12:59:26 PM | Permalink

Me Too Then (#24): Thanks for your comments. I didn't do any in-depth research, but looking at a page or two of Google results from a search on the Flanigan lawsuit, I didn't find any resources that purported to tell the proverbial other side of the story. There could be lots of reasons that the plaintiffs lost, even though at least when the complaint was filed, they were represented (pro bono, I assume) not only by a Lambda Legal lawyer, but four lawyers from Washington powerhouse Wilmer, Cutler. The complaint indicated that the patient had been transferred to a different hospital than the one which had originally received copies of the advance directive and power of attorney designating the partner as personal representative; all of the allegations that the second hospital had actual, effective notice of those documents are phrased as being "on information and belief," meaning the lawyers lacked much, if any, actual proof of that when they filed the case. If they didn't find it by the time of trial, that would provide a nondiscriminatory explanation for the events and explain why they lost with the jury. But that's just speculation on my part. It's possible, of course, that instead, anti-gay animus motivated both the hospital staff and administration and the jury. But that's more of a stretch; that's much harder to swallow just based on faith in one side's reports. And surely Obama was wildly exaggerating if he meant to suggest that such a combination of anti-gay bigotry — at both the hospital and the courthouse — is an everyday occurrence in America.

When one has only reports made through advocacy organizations like Lambda Legal, that certainly doesn't mean that the reports are wrong. But it does mean that we're not getting the benefit of whatever counter-assertions could have been raised by an adversary process (like that revealed by the federal court opinion dismissing the Langbehn case from Florida). So yes: sourcing is important, and it should be considered both by folks like Ms. Brain in presenting their arguments and by those in the public who are considering and weighing such arguments.

I've read one or two online opinions regarding Pres. Obama's executive memo which asserted that even though it has no teeth whatsoever, it was useful to help illuminate the potential for isolated and anecdotal acts of anti-gay discrimination in a hospital setting. I have no quarrel with that, I suppose, except to point out (again) that there's a potential for bad misunderstandings and serious distress for both straights and gays, and that on a national basis, there is still a wide-spread under-utilization of advance directives. Especially post-HIPAA, it's important for every adult to plan for these scenarios and execute an advance directive and power of attorney that's appropriate to his or her particular situation and needs. (The planning also needs to include making sure family members and friends are aware of the documents once executed; they do no good sitting in a drawer while the only person who knows where they are is unconscious in an emergency room.)

But if the POTUS wanted to do what is, in essence, a public service announcement hoping to educate and persuade about the need for Americans to execute advance directives and durable medical powers of attorney, there were lots better ways he could have done it than to mis-package it as a great step forward for gay rights — packaging that, unfortunately, is going to immediately alienate not only the shrinking number of genuinely anti-gay bigots, but also that vastly larger number of people who aren't deeply anti-gay but are nevertheless suspicious that the LGBT lobby is looking for "special" or "extra" rights not available to straights. That's why I come to the conclusion that this wasn't a sincere attempt by Obama to combat genuine anti-gay discrimination, but rather a cynical attempt to mislead gay voters into thinking that he's doing something productive for them. I suppose it could be explained by stupidity instead of cynical identity politics on Obama's part — except that "everyone" insists that The One is so very, very smart. (That's your cue, Mr. Koster.)

(26) Art Deco made the following comment | Apr 19, 2010 5:51:37 PM | Permalink

packaging that, unfortunately, is going to immediately alienate not only the shrinking number of genuinely anti-gay bigots, but also that vastly larger number of people who aren't deeply anti-gay

I am curious to know how you define the term 'anti-gay bigot'. If one says that sodomy is an abuse of human sexuality, that the affiliations of homosexual men merit no more official notice than ordinary friendships, that friendship (properly understood) ought not be eroticized, and that the injunction 'be a man' incorporates certain conceptions of personal conduct and disposition that are properly pursued and count as achievements of maturation, has one offered propositions that are illegitimate on their face and mark the utterer as one of deficient character?

(27) Gregory Koster made the following comment | Apr 19, 2010 11:37:55 PM | Permalink

Dear Mr. Dyer: Cue? I'm on? Uh uh uh...Holy cow, I've gone up in my lines! Luckily, I can grab the lifeline tossed out by the splendid Jammie Wearing Fool with its literally true headline "Angry Teabaggers Heckle Mr. Wonderful." The video JWF wants you to watch gets interesting at about two and five minutes. Some gays get it, or as Glenn Reynolds would say, more rubes are self-identifying.

It is dismaying at how thin-skinned The One is. This video isn't so far from Nixon's famous shoving of Ron Ziegler at the White House press corps, snapping "Take care of it!" If The One really thinks he's facing heavy harassment, he ought to view some tapes of what Lyndon Johnson had to endure from 1967-68.

DRJ is right to congratulate you. Me too.

Sincerely yours,
Gregory Koster

(28) Beldar made the following comment | Apr 20, 2010 2:55:49 AM | Permalink

Art Deco (#26): If someone endorses each of the propositions you've hypothesized, then he and I have very different views. I don't consider it to be a character flaw, immoral, or otherwise improper to be homosexual. I would not accuse someone of being "of deficient character" merely for articulating or even for holding fast to the views you've postulated, but I do believe those views are wrong.

And my choice of the words "bigot" and "bigotry" was a deliberate and considered one. Bigotry consists of making uninformed judgments about individuals based on attributes that are unrelated to the judgments being rendered; the person you hypothesize and I would disagree about whether, for example, "being a [good or legitimate] man" requires heterosexuality (or even much relates to one's sexual preference at all). Since I would instead argue that judgments about whether a given person is a good or legitimate man should be made on factors other than sexual preference, and that basing such judgments on sexual preference is indeed irrational, so too would I characterize someone who believes that no gay male could "be a man" as being, on this topic, a bigot. I believe that I understand the contrary arguments, and I know that I can respect the honesty and sincerity of those who embrace the anti-gay position reflexively and across the board without regard to any of the individuals involved. But I still believe that those folks are profoundly wrong, and that they're being unfair. If I could talk them out of those views, I would.

That said: Your comment is on the far boundary of "on-topic" here, good friend, so I'll ask that you accept my response as graciously as you've made your comment, and that we not use this post as a venue for debating further the pros and cons of homosexuality in general.

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