Hospital Kidnapping? An attorney's analysis of Alyssa's case

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Hospital Kidnapping? An attorney's analysis of Alyssa's case

On Christmas morning of 2016, an 18-year-old high school senior named Alyssa Gilderhus suffered a devastating brain aneurysm.

Alyssa’s road to recovery was paved with a profound sense of isolation, a ruling that she was unable to make decisions about her treatment due to her mental state - and a police chase.

Alyssa’s story is dominating headlines this week after a video was released of her leaving the Rochester MN Mayo Clinic in February 2017.

She claims that the facility had “medically kidnapped” her, and she had to “escape”; whereas the Mayo Clinic states that at that time, she could “not make decisions for herself”, therefore deeming her leaving with her family as “patient abduction.”

CNN reports that police from three different counties pursued the family as they made their 230 mile trip to Sanford Medical Center in Sioux Falls. Police stepped aside after doctors at Sanford disagreed with the Mayo Clinic’s assessment that Alyssa was mentally incapable of making decisions for herself and told her that she could go home after prescribing her medication.

Throughout her time at the hospital both Alyssa and her family felt that the medical professionals were not listening to their concerns. She was taken off oxycodone just days after her fourth brain surgery in a month, she felt her breathing tube was the wrong size, and a social worker was overheard discussing private financial information within earshot of Alyssa’s visitors.

It all came to a head on February 22nd after Alyssa’s mom Amber Engebretson interrupted a meeting between a physician and a social worker; resulting in her being escorted off the property by three security guards.

Throughout her entire stay at the Mayo Clinic, Alyssa was legally an adult. Unbeknownst to the family a hospital social worker had visited adult protective services in two difference counties seeking a court order for “emergency guardianship” as they were worried about her mother’s mental health and were “concerned for… the medical decisions… being made for Alyssa.”

What our attorney has to say

MMAG’s General Counsel Tae Lee says that as the family requested a change of medical personnel four times, this could have been construed as “interfering”.

“We can assume that the hospital felt like the parents were interfering with the proper care of their daughter however at the end of the day it was Alyssa’s decision to make, and if they wanted to leave the hospital it should’ve been their decision; especially if their daughter was coherent,” he explains.

“The objective for the hospital was to gain control of the situation but they didn’t go about it in a very reasonable or smart way.

“Despite requesting a transfer to another hospital several times, Alyssa was never relocated; but you can’t hold someone against their will.”

According to the Elder Law Clinic, a guardianship case is only feasible if there is evidence that the patient cannot tend to their personal needs, is unable to manage their property, or cannot understand the consequences of not minding the aforementioned.

In New York there are two forms of power guardians can assume. Property management, and personal needs; although often the guardian’s powers include both.

Usually it is older or mentally incapacitated people who cannot take care of themselves or who are at risk of harming themselves or others who are allocated a guardian. Guardianship is most commonly assumed over elderly people with Dementia and Alzheimer’s.

“You’d be very surprised how many nursing homes declare guardianship over patients; it’s more common than you’d think.”

How could this have been avoided?

Communication, in particular, is the major failing in this case, says MMAG CEO Ginalisa Monterroso.

“Hospital do lack that vital communication component, it’s like an assembly line where patients go in and go out,” she commented.

“I don’t blame the staff, but I do blame management for not having the appropriate staffing to accommodate and guide the family.”

During Alyssa’s stay, the family were never directed to an ethics committee within the hospital. The Ombudsman Center is a vital country-wide organization that provide support, assistance, and training to long-term care Ombudsman programs; whose primary role in terms of human services is to function as a mediator between the patient and healthcare professional.

“Every hospital should have a patient advocate,” Ms. Monterroso added.

Alyssa’s case is made trickier as Minnesota is one of five states in the USA that offers no protection for default surrogate consent statutes. The default surrogate consent statutes in states such as New York means that if a patient is deemed unable to make decisions for themselves, a spouse, family member, or close friend would be appointed their agent.

This is why it’s important that if you live in one of the states in which the default surrogate consent statutes are not upheld (Minnesota, Massachusetts, Missouri, Nebraska, and Rhode Island) to have a healthcare proxy in place.

Five Wishes

Something simple that could have had a profound impact on Alyssa’s care was the use of a Five Wishes booklet.

The booklet lets healthcare professionals, and your family, know how you would like to be treated in the event that you are unable to make decisions on your own behalf.

Mr. Lee adds: “The Five Wishes document replaces a healthcare directive, and is something you should fill out especially if you have a serious, life-threatening condition. We don’t want to think about those things, but you’ve just got to do them otherwise you have cases like this case in Minnesota. It also shouldn’t take too long to fill out.”

Five Wishes documents are seen as a legal document, and are honored in 42 states, including New York and Minnesota.

To learn more about the Five Wishes document, contact Medicare & Medicaid Advisory Group today.

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Elaine Mc Callig

Elaine Mc Callig

Passionate about journalism, healthcare, and the Oxford comma.