Did Kentucky living-will or surrogate-decision laws govern ambulance crews during emergency care?

Plain-English summary

In 1993, Kentucky's Attorney General concluded that the state's Living Will Act and Surrogate Health Care Act ordinarily would not operate in the setting of ambulance emergency care. The living-will law required an attending physician and a second physician to diagnose a terminal condition and record it. The surrogate law required an attending physician to determine decisional capacity and make a recommendation to a located surrogate. The AG thought those conditions were unlikely to come together during an emergency.

The opinion was expressly narrow. It allowed that extraordinary facts might differ, said whether a physician contacted by radio or telephone had primary responsibility for a patient depended on the facts, and did not assign any particular duty to EMS personnel or alter general principles about refusing treatment.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

EMS providers

The AG said ordinary ambulance emergencies were unlikely to satisfy the steps for invoking either statute. It did not say EMS personnel could disregard every advance directive or define their treatment duties; the opinion explicitly declined to place a particular duty on them.

Patients and health care surrogates

Under the statutes discussed in 1993, a living-will declaration depended on physician diagnoses and medical-record notation. A designated surrogate's authority depended on the attending physician's assessment and recommendation. The opinion addressed how those formal conditions fit emergency care, not the full range of patient or surrogate rights.

Physicians and emergency systems

The AG said telephone or radio contact alone did not settle whether a physician was the patient's “attending physician.” That depended on the physician's actual responsibility under the circumstances. The opinion offered to reconsider if its assumptions about EMS practice were inaccurate.

Common questions

Did a living will automatically control ambulance treatment in this 1993 opinion?

No. The AG said the 1993 statute required two physicians to confirm a terminal condition and document it, circumstances it considered highly unusual during ambulance care.

Could a designated surrogate make an emergency decision under the statute?

The AG said the necessary attending-physician assessment, recommendation and consultation with the surrogate were unlikely in an ordinary emergency. It did not rule out every possible exceptional case.

Was a physician on the radio automatically the attending physician?

The AG said that could not be answered as a matter of law. It depended on the physician's actual treatment responsibility in the particular situation.

Did the opinion decide whether a patient could refuse treatment?

No. It expressly said it did not deviate from established principles about refusal of treatment and did not impose a particular duty on EMS personnel.

Background and statutory framework

Lexington Fayette Urban County Government asked whether two health-care statutes applied to EMS providers. The Living Will Act, cited as KRS 311.622 to .644, required a qualifying declaration and two physician diagnoses. The Surrogate Health Care Act, cited as KRS 311.970 to .986, involved a designated decision-maker and an attending physician's assessment. The AG applied those procedural requirements to the emergency context it understood and gave a practical, qualified answer.

Citations and references

• KRS 311.622 to .644: Living Will Act cited by the AG.
• KRS 311.970 to .986: Surrogate Health Care Act cited by the AG.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-076.htm

Original opinion text

OAG 93-76

November 2, 1993

Linda P. Sullivan

Corporate Counsel

Lexington Fayette Urban County Government

200 East Main Street

Lexington, Kentucky 40507

Dear Ms. Sullivan:

You have asked whether the Kentucky Living Will Act and the Surrogate Health Care Act of Kentucky apply to emergency medical services providers. We conclude that under normal circumstances neither act applies to EMS providers.

The Living Will Act

The Living Will Act (KRS 311.622 to .644) authorizes a “qualified patient” to execute a declaration that requests the withholding of life-prolonging treatment. The declaration authorizes an “attending physician” to withhold certain treatment in compliance with the declaration.

“Qualified patient” is defined as an adult patient of sound mind who has executed a declaration and has “[b]een diagnosed by the attending physician and one (1) other physician as having a terminal condition, with said condition noted by both in the patient's medical record . . . .”

“Attending physician” is defined as “the physician who has primary responsibility for the treatment and care of the patient . . . .”

Thus, before the declaration may be given effect, the patient must be examined by a physician who has primary responsibility for the patient's treatment and care; the patient must be examined by a second physician; and the two physicians must concur that the patient's condition is terminal and make a notation to that effect in the patient's medical record. We believe that it would be extremely unusual for these circumstances to occur in the context of emergency treatment provided by an ambulance service. It is unlikely that a physician will be present; it is more unlikely that two physicians will be present; and still more unlikely that they will have the patient's medical record with them.

We have considered the possibility that EMS personnel may be in radio or telephone contact with a physician. We cannot say as a matter of law that such a physician would be considered to have “primary responsibility for the treatment and care of the patient.” The scope of the physician's responsibility would depend on the particular facts of the situation, although we find it unlikely that the legislature intended responsibility for the care and treatment of a patient to devolve upon a physician who perhaps has never seen the patient.

We therefore conclude that under all but the most extraordinary circumstances the Kentucky Living Will Act does not apply to EMS providers.

The Surrogate Health Care Act of Kentucky

The Surrogate Health Care Act of Kentucky (KRS 311.970 to .986) allows an adult to make a written designation of a surrogate who is empowered to make health care decisions for the declarant when the declarant lacks decisional capacity. The act does not apply if “the grantor's attending physician has determined in good faith that the grantor has decisional capacity.” If that prerequisite is met, then the surrogate may make a decision after “consider[ing] the recommendation of the attending physician.” The definition of “attending physician” is the same as the definition given in the Kentucky Living Will Act.

The requisite conditions for invoking the Surrogate Health Care Act are not as stringent as the the Living Will Act in that only one physician is required. Nevertheless, we find it unlikely that the necessary conditions would exist in an emergency situation. First, there must be an attending physician, and as we stated in the preceding section this probably requires that a physician be physically present to examine the patient. Second, the surrogate must be located and consulted. Third, although the act does not require it, a physician who is not personally acquainted with the patient would be well advised to inspect the written declaration before allowing a surrogate to act; therefore in most situations someone would have to locate the document. Fourth, the physician must determine whether the patient has decisional capacity and make a recommendation to the surrogate.

The confluence of these conditions in an emergency situation is sufficiently unlikely for us conclude that as a practical matter the Surrogate Health Care Act of Kentucky does not apply to EMS providers.

Our opinion should not be construed as placing any particular duty on EMS personnel or deviating from established legal principles regarding the right to refuse treatment. We simply conclude that the exigencies of an emergency care situation will rarely, if ever, provide the environment necessary to invoke either the Kentucky Living Will Act or the Surrogate Health Care Act of Kentucky.

If this analysis indicates that our assumptions regarding the context of EMS situations does not reflect actual experience, we will be happy to reconsider our conclusions.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General