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April 12, 2005

Magouirk family to ask for visitation rights

Topics: News

I just got this email from Ken Mullinax. As it seems like Boyd is interested in helping, I believe that visitation rights will be granted without much hassle -- but we have to wait and see.

He also writes that his appearance on the Hannity & Colmes show has been postponed:

Hannity Producer "Marny" has called me and our segment on Mae Magouirk has been moved at the last minute to Wednesday because some guy was arrested in Georgia and they had to extend the segment on the arrest.

So we are crossing our fingers for the segment on us to be held tomorrow,

Tomorrow morning, Attorney Jack Kirby of LaGrange, Ga., will file a motion before Judge Boyd, on behalf of A. B. McLeod, which will ask the Judge to order Beth Gaddy to allow her Grandmother's brother and sister (A. B. McLeod, Lonnie Ruth Mullinax) visitation rights at UAB Hospital. Stay tuned.

Cross posted at: Sounding the Trumpet

Posted by joshua at April 12, 2005 8:21 PM

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More questions about Mae Magouirk, the medical system, and the law.

Reading pages 20-23 of the court document in Mae Magouirk's case helps me to understand better why Ken and his side of the family would have such a deep mistrust of and possibly animosity toward Beth Gaddy. If the accusations are true, they certainly at the very least call into question whether she should have guardianship over her grandmother.

Here are some questions I would like to see answered:

Why was a doctor able to so easily and authoritatively make the decision to override Mrs. Magouirk's living will?

Why didn't the hospice check to see what kind of "power of attorney" Beth Gaddy had and what Mrs. Magouirk's living will said? They had copies of both documents but apparently didn't read them until the Mullinax side of the family started asking questions--something is very wrong there.

Even if Beth Gaddy HAD medical power of attorney, how could it possibly have been so very quick and easy to override Mrs. Magouirk's living will and deprive her of necessary treatment?

Is a doctor and/or guardian's overriding a living will (especially when it is concurrent with the patient's most recent verbally expressed coherent desires) and/or denying necessary treatment--with no investigation and no checks and balances--in keeping with the law, and if so, what can we do to change that?

Do we have documented (other than the claims made by Ken's side of the family in that one document), that Mae Magouirk requested her siblings' help in getting treatment for her condition? If so, how and why was this denied?

How was Beth Gaddy so quickly and easily able to get an emergency guardianship over her grandmother after everyone realized that she didn't have that authority, and why, if the account given is true, did the hospice side with her to keep Ms. Gaddy from being transferred before she got that order?

Why didn't the judge try to find out whether there was someone else who should be given guardianship and what was going on from both sides before giving guardianship to whoever happened to ask for it first? Why didn't he try to find out why the Mullinaxes wanted Mae removed from the hospice and what they were trying to do before ruling to give Beth Gaddy emergency guardianship, and why didn't he find out whether this woman was being properly cared for when Gaddy was in charge, and if she needed protection?

Why, after a sped-up hearing which wasn't even completed, did Judge Boyd rule Mae Magouirk to be permanently incapacitated and unable to make decisions for herself?

Why did Ken Mullinax and family withdraw their objections to Beth Gaddy being appointed emergency guardian without making any stipulations other than that the three doctors had to examine her and agree on her treatment? Why wasn't it stipulated as part of the agreement that she be given a feeding tube and/or IV while the doctors were waiting to examine her and make their decision, since this seemed necessary for her to receive adequate nutrition and hydration?

Since there was a court order saying that Beth Gaddy had to see that Mrs. Magouirk was adequately fed, why weren't the hospital and doctor made aware of that--and if they were aware of it, how could they flaunt it?

Why wasn't anything done about Beth Gaddy's flaunting that court order, if Mrs. Magouirk was so dangerously dehydrated? Did anyone try to deal with it through law enforcement or legal avenues?

If Beth Gaddy really did give orders to hospital staff to keep Mrs. Magouirk's family out, and it wasn't doctors' orders or a temporary thing (i.e. we're doing a medical procedure right now . . . you can't come in at the moment), does a temporary guardian have the right to do that? Have appeals been made to the hospital, doctors, and legal authorities about that, and if not, why not?

In relation to the last point, the court order giving Beth Gaddy emergency guardianship is limited--both in time and in scope. The court order specifically says, "The powers and duties of such emergency guardian are limited to those specificed in the letters of emergency guardianship which will be issued in connection with this matter."

The letters of emergency guardianship say this:

(page 6 of court documents)

Your [Beth Gaddy's] powers and duties as such guardian are limited to the following:

1. To collect and preserve the assets of the ward.

2. To expend the income of the ward for the ward's benefit. Encroachments on corpus must be approved in advance by the Court.

3. To submit and inventory within 30 days.

4. To see the ward is adequately fed, clothed, sheltered and cared for, and receives all necessary medical attention, including placement in a nursing home, if appropriate.

5. To submit a personal status report within 30 days.

These letters expire as soon as the petition for regular guardianship is heard, or 45 days after April 1, 2005 (the date of filing of the petition for emergency guardianship), whichever occurs first."

(page 8)

"It is further ordered that Elizabeth A. Gaddy shall have authority to make all medical decisions concerning the medical care of the ward until further order of the Court"

Both of these were dated April 1, 2005

Interestingly enough, the original April 1 court order also states that "Petitioners show that irreparable harm will occur to the proposed ward if she is removed from Hospice. . . . Petitioners further show that the proposed ward should not be removed from Hospice until a permanent guardian is appointed."

The April 1 court order also requires that "the court order an emergency hearing to be conducted not sooner than 3 days nor later than 5 days after the filing of this petition"--From my reading of the documents it looks like the hearing scheduled for 9 a.m. on April 4th was scheduled at the time of the April 1st hearing (not, it appears, at the appeal or request of the Mullinax family later--although they did use that opportunity to appeal the decision to appoint Beth Gaddy as Emergency Guardian until the two sides came to an agreement halfway through the hearing and they dropped their objection).

Whatever happened, I don't understand how the terms of this guardianship could allow Beth Gaddy and medical personnel to deny necessary food and water to Mae Magouirk.

Again, and this is in my mind the most important question of all, why is it so easy for doctors and/or family members to make the decision to not provide adequate medical treatment and adequate food and water to a patient?

It appears that they can just decide to withold treatment and do it, with or without the legal right to make those decisions for the patient, with or without the patient's input, and even in the face of a living will and/or the patients' request for different treatment. It appears that there is nothing to stop a doctor and/or other involved parties from making the decision to withold food and water and/or medical treatment, and immediately do it with no questions asked--for no other reason than because they decided to.

Something is terribly wrong with this picture.
(cross-posted at The Purple Puzzle Place)

Posted by: purple_kangaroo_Angela at April 12, 2005 7:50 PM

Another note:

The court order was confusing in that it ordered Beth Gaddy to make sure her ward was receiving appropriate food and medical care, but also gave her the authority to make all medical decisions (with no limits associated with that authority on that page of the order).

So if Beth Gaddy decided a feeding tube and IV weren't appropriate or necessary, but she did (as it seems) feel it was sufficient to give her a small amount of food and water by mouth, would she have had the legal right to deny the feeding tube and IV and decide to only give the oral items in small amouths even though it would likely cause Mae Magouirk's death by dehydration?

Does such an order give her the legal right to do that, and would the judge have intervened if it had been brought to his attention (especially considering that it was already happening before he wrote those orders)?

Were Beth Gaddy's actions actually in keeping with the authority she was given? Was there really any recourse through the courts that would have gotten the doctors to move faster in evaluating Mae Magouirk or that would have forced someone to give her a feeding tube and IV while they were making their decision?

Why is it so easy to just decide not give adequate food and water to a patient, with no other reason than that someone (either medical personnel and/or the family) wants to? Is this legal?

I wonder--how often does this happen all over the USA, with no questions asked? Is it possible or likely that this is happening in other cases even over the objection of other family members who don't know how to get attention and help?

Posted by: purple_kangaroo_Angela at April 12, 2005 8:46 PM

Purple Kangaroo,

Beth Gaddy never had a health care power of attorney--only a financial one. It's contained in the court documents and you can review the limits of her powers.

The reason that the doctor could overrule the living will is probably because either the hospital has protocols that allow physicians to deny treatment when they believe it to be futile (hydration and nutrition being defined as treatment under Georgia statutes, unfortunately) and/or Georgia statutes allow medical providers to withdraw so-called "futile care." When providers decide it's futile--it often doesn't matter what your living will says.

That's the situation in Texas with "futile care." The protocols and law allow withdrawal if the ethics committee agrees and ten days is given to find alternative placement. If the ethics committee decides to withdraw and you can't find alternative placement--you don't get treatment and they can withdraw tube feedings.

We don't know if Mae's case went to an ethics committee. That may not have even been required if Beth who the hospital thought had POA was agreeing with the physician's order (assuming that Beth Gaddy did agree with hospice placement and withdrawal of treatments--of which we have not seen independent confirmation )

Posted by: Sue Bob at April 12, 2005 8:50 PM

Yes, sue_bob, but what I am wondering is if the emergency guardianship given by the judge gave Beth Gaddy the right to refuse a feeding tube and IV for Mrs. Magouirk?

Are there any requirements on what constitutes futile care?

Also, I am glad the family is appealing the visitation rules. I hope that works out.

Posted by: purple_kangaroo_Angela at April 12, 2005 10:15 PM

I just read on Straight Up With Sherri that Mrs. Gaddy would allow visitation if Mr. Mullinax, her cousin, stopped any media contacts and speaking with bloggers. Interesting..

Mrs. Gaddy, if I recall, has been afforded the opportunity to present her side on this very blog, yet has not done so.. Is this the case?

Posted by: Midwest Kay at April 12, 2005 10:19 PM

I think the ambiguity on "medical treatment" is very important and probably did provide a loophole for Beth. Food and water by tube are regarded as "treatment." This has even been set in stone by court rulings. So the "food and water" part of the court order was more or less meaningless if Mae needed a feeding tube to get enough.

I'm quite sure no ethics committee made a ruling here, because she was discharged from the hospital. The question of the legality of overriding her living will remains very open. _However_, it's important to realize that they _could_ argue that the living will was _not_ being set aside since she was getting tiny little bits by mouth. If the living will just says she isn't to be "denied" food and water except under such-and-such circumstances, they could twist that so it wouldn't apply so long as she was getting _something_. I'm afraid it's important specifically to _request_ a feeding tube, which I'll bet Mae's document didn't do. In one interview the judge says "she was being denied nothing," and the hospice says its policy is that it "does not deny food and water." Word-juggling, I'm afraid, but possibly legally effective.

Finally, here's a chilling comment posted on Thrown Back blog. I omit the name and e-mail of the person, but you can find her comment over there on the Mae Magouirk thread:

"I'm a RN who used to work at at long term acute care hospital. This is a facilty for people who need the complex medical care available at a hospital but need the care for a long peiod of time, usually > 30 days. On admission, all patients were required to fill out an advanced directive. It was explained as a document that would speak for the patient if they could no longer speak for themselves. The document listed a range of interventions-from food and water, IV therapy to dialysis and ventilator support. The problem was, the document was only honored if the patient chose not to have any interventions. If a patient indicated that they wanted any of the listed procedures, once the patient was too ill to speak for themselves, the pressure started on the family to revoke the document. I no longer work there and this process is a big reason why. If you make out a living will or a patient advocate designation, be sure your family knows what you want and WHY, so that they will be strengthened withstand the pressure."

I don't know if what she describes is technically legal, but I'll bet you anything you couldn't get a prosecutor to pursue it. Things become "legal" in practice even if technically illegal if they are done for long enough, and esp. under the aegis of "medical care."

Posted by: Lydia at April 13, 2005 10:25 AM

Purple Kangaroo Angela: Where did you find the court documents??

I want to see those. If they show the complete testimony presented to the court, and even Boyd's responses and such, they could shed light on...

a) what Boyd knew about the danger to Mae of dehydration, and

b) what exactly Boyd did that gave the other lawyer the idea that he would grant permanent guardianship to Beth no matter what they said.

If they _didn't_ hammer on the dehydration issue in the tesimony at that time, they _definitely_ need to *bring that out loudly* when they make their case for (at a minimum) visitation rights. They must argue that they perceive a danger to Mae in Beth's continued guardianship and that they at least need to be able to see that Mae is being properly cared for in this respect if Beth does continue as guardian. If it goes back to Boyd, or regardless of what judge handles it, he mustn't be able to say that he was unaware of any such problem.

Posted by: Lydia at April 13, 2005 11:49 AM

Lydia, I found the link to the court documents on another blog . . . I think it was Straight Up with Sherri, but not sure.

Here it is: http://www.blogsforterri.com/docs/MagouirkOrderApril1%5B1%5D.pdf

Posted by: purple_kangaroo_Angela at April 13, 2005 2:02 PM

Angela: Rats. For some reason that won't load on my computer. It just calls up Adobe and then stalls. I guess I'll have to rely on other people's quotations. If you have any info. on the questions I bring up above, that would be great.

By the way--I do understand a point CreatureofHabit has been making to the effect that, once the objections were withdrawn, anything cited in support of those objections in court "no longer existed." I think that's an important thing Ken Mullinax needs to understand. He's going to have to make that case all over again if he wants permanent guardianship.

Posted by: Lydia at April 14, 2005 8:19 AM