Change in Tennessee law lets hospitals drop patients

NASHVILLE, Tenn. — A few weeks before Terry Gordon died, a court-appointed lawyer paid a visit to the 63-year-old homeless man in his seventh-floor hospital room at Saint Thomas Midtown Hospital.

"I explained to him that this was not the Hyatt Regency, but we had to find him another place for him to stay," the lawyer, George Duzane, later reported to the court.

But the visit, which took place in August of last year and led to Gordon's temporary departure from the hospital, had its origin in a last-minute amendment to legislation involving conservatorships approved earlier that year.

The amendment, sponsored by Rep. Andrew Farmer after he was approached by various hospitals, was added to a bill designed to protect those who are placed in the care of conservators. The amendment gave hospitals a way to petition for court approval to discharge patients they say no longer need the costly care of a major health facility.

In Nashville the add-on provision has been used a dozen times to try to discharge people, more than half of them listed on court documents as currently or formerly homeless. In nine of the cases, including Gordon's, the petitions were approved by Davidson Probate Judge David "Randy" Kennedy.

The petition for Gordon's dismissal from the hospital was filed Aug. 8. He died less than a month later, on Sept. 2.

It's not clear from records and interviews who bore ultimate responsibility for the care of the patients involved. No one has alleged that the care they received was substandard. What is known is that the legislation gave hospitals a new way to move patients into other facilities.

Adrienne Newman, associate executive director of FiftyForward, which had been named as Gordon's health care fiduciary under the new law, said Gordon was transferred to a rehabilitation facility but then sent back to Saint Thomas Midtown Hospital on the day he died.

She said repeated efforts to reach Gordon's family had been unsuccessful.

Of the 12 cases filed in Davidson County by Saint Thomas and Vanderbilt hospitals since the new law went into effect July 1, seven were listed on Probate Court petitions as currently or formerly homeless. The first of those petitions was filed the day after the new law took effect. Seven petitions were filed by attorneys for Vanderbilt, while five were filed for Saint Thomas.

The most recent court records show most of those subject to the petitions were transferred to nursing homes, though at least one remains at Vanderbilt.

The petition for Gordon's release, like the others, was couched in official language.

"Respondent has been a patient at petitioner's hospital, but respondent is now ready for discharge," it said.

Later, Duzane said in a report to the court that he was surprised Gordon hadn't died even sooner. That was based on an attempt to interview Gordon at Saint Thomas before his discharge. Duzane told the court that after the petition was approved, Gordon was discharged from the hospital and "placed somewhere."

"Exactly where I am not sure."

Duzane said in a telephone interview that his duties ended once Gordon was discharged. He had been appointed by the court to act as Gordon's legal advocate but did not know where he ended up.

Duzane, who records show had been appointed as the attorney ad litem in many of the cases, said homeless people were the most common recipients of the new designation.

"The hospitals do the best they can do," he said. "It's a sad situation."

Trial Court Administrator Tim Townsend said it was too soon to make "any sweeping conclusions" about the new law's impact. He said the majority of the cases involved patients in local hospitals and acknowledged that many turned out to be homeless.

"Judge Kennedy also reports these changes (in the law) do appear to provide the courts with improved guidelines on the handling of these extraordinary cases," Townsend wrote in an email.

Rebecca Climer, spokeswoman for Saint Thomas, said the health care organization was not involved in efforts to amend the law but had gotten approval for such emergency petitions in four cases. A fifth was currently pending before the court, she said.

"Our experience has been primarily with homeless patients who had no place to be discharged to and no one to act on their behalf," she said, noting that the conservators' appointments are for a limited period of time. She also noted that the court, under the law, appoints an attorney to be the patient's advocate.

She said a conservator, once appointed, makes arrangements "to fulfill the physician's discharge order and admission to another facility for an appropriate level of care."

A last resort

At Vanderbilt, an emergency petition was filed to have a temporary conservator appointed for 71-year-old Bill Bartlett, whose last residence was the Nashville Rescue Mission. The petition, approved in early March, gives the appointee the power to approve Bartlett's discharge or any other medical treatment. The most recent records indicate Bartlett remained at Vanderbilt.

Vanderbilt spokesman John Howser declined to say how many times Vanderbilt has used the new emergency provision.

"This is not a number we track."

He said the hospital worked with the bar association and other hospitals to get the change. The provisions were necessary, he said, "because there are occasions where family members can't or don't want decision-making responsibility for health care needs, or there may be no family at all."

Howser said the appointment of a decision maker becomes necessary when "the patient needs other health care services outside an acute care hospital or to transition out of the hospital setting." It is used, he said, only as a last resort.

A patient's insurance or the lack of it bears no weight in deciding whether to seek appointment of an emergency conservator, Howser said.

Confusion at the legislature

Confusion about the last-minute amendment was apparent during the April 18, 2013, House debate on the conservatorship law.

Rep. Bill Dunn, a Knoxville Republican, noted that the amendment, unlike the rest of the conservatorship package, had not been voted on by a legislative committee.

"It just sort of sends off alarms," Dunn told his House colleagues, expressing his concerns about the process.

In a recent interview, Dunn said one of his concerns was what would happen to patients once they were discharged.

Farmer, R-Sevierville, the main House sponsor of the bill and the amendment, told colleagues he had been approached "by Vanderbilt and some of the other hospitals" seeking the change.

"It gives an avenue, a vehicle to move someone out of that bed," Farmer said during the debate, adding that the bill simply put into the law books practices that already were in place in courts across the state.

In fact, records show, the amendment created a completely new process for the appointment of "expedited limited healthcare fiduciaries" — people empowered by the courts to make health care decisions for those considered incapable of doing so for themselves.

Farmer did not respond to several requests for comment.

One woman's fight

In only one case reviewed by The Tennessean was a hospital petition denied. That came, ironically, in the case of Jewell Tinnon, the Nashville woman whose prior placement in a conservatorship resulted in the loss of her house and possessions. It was publicity about Tinnon's plight that led to a series of public hearings by the Tennessee Bar Association.

The bar group then recommended the changes embodied in the bill that was being considered during that April 2013 House session. Alan Ramsaur of the bar association said his staff worked with Vanderbilt and other hospitals to come up with the amendment Farmer offered.

As she had the first time, Tinnon fought the petition, which was denied. She recently left Vanderbilt University Medical Center and Tennessee and is living with a relative.

Howser said Tinnon was admitted to the hospital on Oct. 10 and discharged on March 28. He said privacy laws barred the disclosure of any additional information.

Even among those who are not homeless, the new law has created confusion and consternation. Cindy and Michael Harris were placed in an emergency conservatorship after the couple were involved in a serious car crash.

Cindy Harris said that at first she didn't realize what had happened and the next thing she knew a court appointee was in her home going through all of her financial records. And, she said, she had to get court approval just to pay her bills.

"It's all about the dollar bills," she said.