Hospital Visitation for Gays (and the Special Rights Afforded Redheads…Oh, and Married People)

Most people think redheads look alike.

For instance, despite the fact that my face (eyes, nose, mouth, cheek bones) and body (resembling a Tonka truck) look exactly like my raven—haired father’s—Joneses lumbering around with the gait of an Kodiak wrestler from Northern Mongolia—because my dainty mother has red hair and is fair-skinned, and I have red hair and am fair-skinned, I am often told, in a voice reminiscent of anyone from the television series Square Pegs, “OMG, you look totally like your mother!”

Unlike some, I firmly believe people are not stupid. Rather, I have come to understand that red hair has a funny way of bending light rays to create the same deceiving, refractive power of a desert mirage. It helped a lot getting into bars in college with various fake IDs; but, alas, gets really annoying when people think I’m wet all of the time.

Long story long, being a ginger has worked out well for me in my recent years as I explore my narcissistic, or possibly, Oedipal side, dating several Irish-blooded, fair-skinned dandies with a penchant for calling me Daddy.*

*no one really calls me “daddy.”**

**except maybe my cat Harry, but he doesn’t see very well.

These relationships work/ed out well for me, in the sense that, if my flame-haired girlfriends faced an emergency situation, we agreed that I would be “sister,” and, as “sisters,” being the “immediate family” of hospital visitation policy fame, would allow me to remain with said partner through their convalescence, unimpeded by a lot of Gandalf–style “you shall not pass” from most hospital officials seeking to cut off visitation for same-sex solace-providers. I would simply point to my ginger coif and part the sea of institutional bureaucracy like Moses at the Red Sea DMV.

Now, I am not from West Virginia and to tell people I am family, by blood, when I am not, is, of course, a lie. And I hear tell that lying is wrong. And while we’re talking frank, so is preventing loving couples from comforting one another during any hospital stay.

Because we are prohibited from marrying, gay and lesbian partners too often have to argue their right to hospital visits with ill loved ones. National standards for hospital accreditation allow visitation to family members and can include non-legally related individuals as family members if they play a significant role in the patient’s life and are documented as such. Yet, even with proper documentation,  same-sex couples still can never be sure under current law in most states that their intentions will be honored.

Flanigan v. University of Maryland Hospital System illustrates the ongoing need for hospitals to recognize the legitimacy of same-sex relationships so that loved ones are not kept apart at a time when they most need each other. 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. On behalf of Bill Flanigan, Lambda Legal unsuccessfully argued before a local jury that the hospital was liable for damages.

Things have gotten no better in the last decade, as witnessed in the ongoing case of Langbehn v. Jackson Memorial Hospital. Just as Janice Langbehn and Lisa Pond were about to depart from Miami on a family cruise with their three children, Pond suddenly collapsed. From the moment Langbehn and the children arrived at Jackson Memorial Hospital, they encountered prejudice and apathy. Even though Langbehn held Pond’s durable health care power of attorney, the hospital refused to accept information from Langbehn regarding Pond’s medical history. The hospital also informed her that she was in an antigay city and state and that she could expect to receive no information or acknowledgment as family. A doctor finally spoke with Langbehn, telling her that there was no chance of recovery. Despite the doctor’s acknowledgment that no medical reason existed to prevent visitation, neither Langbehn nor her children were allowed to see Pond until nearly eight hours after their arrival. Soon after Pond’s death, Langbehn attempted to obtain her death certificate in order to get life insurance and Social Security benefits for her children. She was denied both by the state of Florida and the Dade County Medical Examiner. Lambda Legal filed a lawsuit against Jackson Memorial Hospital, on behalf of Janice Langbehn and her three children.

While my red hair could get me in the door, my partner’s true “immediate family,” even if distant, estranged and/or disapproving, can keep me out; additionally, despite forward-thinking family planning, a medical power of attorney, as seen from the cases above, can be summarily dispatched by hospital staff, willing to ignore love and law, for an antigay policy all their own.

In law, I have learned that even the easiest questions sometimes have no easy answers. Dealing with LGBT issues within the confines of the law, is, without a doubt, even more difficult. While it seems more states are “coming out” every day, still only a small percentage of states have recognized some form of same-sex marriage or civil union, but already those measures are creating a patchwork of laws and court decisions with little uniformity.

The short-term action? More Paperwork.

The most powerful is a form designating an agent: giving a partner such rights as hospital visitation, decision-making authority for health care, and even control over the disposition of remains.

Hospital Visitation Authorization

A hospital visitation authorization is a document that instructs your doctor, care providers and hospital staff about who is allowed and given priority to visit you if you are hospitalized. Many hospitals only allow biological or legal family members to visit a patient in the hospital unless you have a hospital visit authorization. Gay, lesbian, bisexual and transgender partners are not considered family under most state law. But this document allows you to make clear that you want your partner to have the right to visit you if you are hospitalized.***

Medical Power of Attorney

Married, domestic partnered, or not, all committed same-sex couples should consider a power of attorney for health care or medical matters, which appoints a person to make medical decisions for you when you cannot do so. It is also known as a health care proxy, among other things, depending on where you live. The document should include an authorization under the Health Insurance Portability and Accountability Act to provide access to medical records. You may also include a hospital visitation directive to specify who can visit you in the hospital.***

***May be void in Maryland, Florida, and your state.

The short answer? Marriage.

Married people get rights automatically through long-established common law: not special acts, statutes, or other legislation, but just “by virtue” of being a married couple. Under the laws of all states, marriage equals “immediate family” and immediate family equals hospital visitation. And, by corollary, marriage equals basic human rights. So, while I have to present 14 pounds of paperwork to see my Gaelic gal in triage, you heteros need only show your wedding band.

I’ll give you that “hospital visitation by long-time partners” is a pretty easy side to have in this whole equal rights/gay marriage debate. Just look back at the phrase. It reeks of tear-stained “let me visit my dying loved one, you inhumane person you.” In fact, I thought a lot about this issue around the time the public expressed outrage when a Dallas police officer prevented NFL player Ryan Moats from seeing his dying mother-in-law (see below).

I wondered if any of these folks who felt obliged to express their outrage would do the same if the person kept from their dying loved one was instead Bill Flanigan, Janice Langbehn, or me. And why aren’t they?

I would ask that you think about this double-standard when watching today’s “National Organization for Marriage” response to the amazing marriage equality victories in Iowa and Vermont in the form of a national TV ad filled with fear about a same-sex marriage “storm” gathering across the country. This disturbing ad — airing across the country and 8 times a day in California — uses actors to push lies claiming that marriage equalty threatens personal freedoms (see below).

The whole damn thing makes me want to pull my hair out.

But until I know I can visit my partner in the hospital, I’m afraid I can’t.