Same-sex partner barred from Indiana hospital

Michael Boren and Jill Disis | The Indianapolis Star

INDIANAPOLIS -- A woman says she can't visit her unconscious same-sex partner in a local hospital because the partner's mother has banned her from the room.

Sarah Bray, 34, says her partner was taken Wednesday morning to Franciscan St. Francis Health-Indianapolis after a drug overdose. Bray says she was able to visit her partner until her partner's mother arrived and ordered her to leave.

"This is a clear violation of LGBT hospital visitation rights," David Stevens, a spokesman for GetEqual Indiana, said about the rights of lesbian, gay, bisexual and transgendered individuals. Bray reached out to Stevens' group about her concerns.

The case raises complicated questions about hospital visitation rights, especially for same-sex partners. Gay rights advocates argue that Bray's rights are being violated. But legal experts consulted by The Indianapolis Star say not enough details are known to determine whether the hospital is discriminating against her by allowing Bray to be banned from the room.

A memorandum signed by President Barack Obama in 2010 extends hospital visitation rights to same-sex partners at hospitals that accept Medicare and Medicaid — even in states such as Indiana that don't recognize same-sex partnerships. It also extends patient care decisions to same-sex partners if they have been designated as the next-of-kin representative.

The patient typically determines who that next-of-kin representative is. But in cases such as the St. Francis one, in which the patient can't voice that choice, doctors ultimately have the power to decide.

In either case, legal experts say, a next-of-kin representative must make a strong argument to ban someone from visiting a patient, such as concerns over disruption or harm to the patient.

"You'd have to have a good reason," said Jennifer A. Drobac, a professor of law at the Indiana University Robert H. McKinney School of Law in Indianapolis. "It would have to boil down to a medically necessary decision."

Banning someone simply because of animosity or disapproval of an individual — which Bray says is happening in her partner's case — isn't a strong enough argument, Drobac said.

"That clearly is discrimination," she said.

Joe Stuteville, a hospital spokesman, acknowledged that the hospital usually gives the upper hand to a patient's next-of-kin representative to determine who can or can't visit. "Without having the specifics on this case," he said, "I can only say we do not discriminate. We understand end-of-life issues."

Bray said her two sons, 10 and 12, discovered her partner facedown on a bathroom floor, foaming at the mouth, about 6 a.m. Wednesday. Bray said her partner had overdosed on several medications in what she believes to be a suicide attempt. The Star generally does not identify people who attempt suicide.

About 6:45 a.m., Bray's partner, who is an employee of St. Francis, was taken by ambulance to the hospital, where Bray was able to visit her for about an hour. That is when Bray called her partner's mother to alert her of the incident. Bray's sons then arrived and visited her partner for several minutes, crying and hugging her. However, Bray said, when her partner's mother arrived, she ordered the three of them out of the room.

Bray said she hasn't been allowed to see her partner since, claiming that the hospital sided with her partner's mother's wishes to keep her away. Bray said her partner's mother does not support their relationship, which is why the mother didn't want her in the room. When reached by phone Wednesday for comment, the patient's mother said, "We're not interested," and hung up.

"She's playing with the wrong person," Bray said, "because I know that I have rights, and I'm going to fight for those rights no matter what."

David Orentlicher, a professor at the IU law school, acknowledged that arguments between families and partners can make things tricky.

"Sometimes you have situations where the person that is closest by blood or marriage is not necessarily the best representative for the person," Orentlicher said. Those cases, he said, are more subjective when a doctor ultimately decides whether someone else fits the bill.

Stuteville, the hospital spokesman, said cases in which families and partners disagree do not happen often.

"It is rare," he said. "In the end, we think families and friends come together in terms of end-of-life care."

Bray and her partner have been together since May but have known each other for nearly 13 years. The two plan to marry in Iowa next month and picked out rings Tuesday, Bray said.