The "emergency" DNR order
The "emergency" DNR order
By William Sullivan, DO, JD, FACEP, FCLM, Director of Emergency Services, St. mary's Hospital, Streator, IL; Clinical Instructor, Department of Emergency Medicine, Midwestern University, Downers Grove, IL; Clinical Assistant Professor, Department of Emergency Medicine, University of Illinois, Chicago; Sullivan Law Office, Frankfort, IL
Editor's note: It is reasonably settled that from a legal and/or ethical viewpoint that a competent patient has the right to direct his or her own medical care in any scenario. However, when the patient who is receiving medical care is no longer legally competent or never was legally competent to undertake medical decisions, the legal and ethical waters become murky. Thankfully, when healthcare providers, their patients, and their family members must face the difficult decisions surrounding the care of a legally incompetent patient, the parties involved in the decision making commonly merge towards agreement. However, when healthcare decisions involve end-of-life issues, the ethical and legal waters can become exponentially more difficult. Surrogate decision-making devices such as living wills and the healthcare durable power-of-attorney may be available in some situations to guide decision making for the incompetent patient. Yet, such devices remain imperfect for many reasons, and when the parties involved in the medical decision making cannot reach an agreement, some formal dispute resolution process must occur. When they are available, alternative dispute resolution processes such as mediation and ethics consultations may bypass the need for going to court, but sometimes the court becomes the final venue. This issue of the ED Legal Letter serves to remind us of some of the approaches available for dealing with end-of-life decision making, their relevance to the practice of emergency medicine, and some of the approaches the courts have taken when disputes arise. Richard J. Pawl, MD, JD, FACEP
A do-not-resuscitate (DNR) order is one of the more poignant examples of an issue at the crossroads of medicine, law, and ethics. For example, some medically permissible actionssuch as removing a terminally ill patient from a ventilatorcould be considered illegal while some legally permissible end-of-life decisions, such as failing to help a dying patient, easily could be considered unethical. The decision to honor a DNR order amounts to an irreversible act that may be deemed "murder" by some and an honorable deed by others.
In addition to the medical and ethical dilemmas involving DNR orders, legal cases regarding implementation of DNR orders have reached inconsistent results. Physicians have been sued both for following DNR orders and for ignoring DNR orders, creating confusion over exactly how to apply the constitutional right to self-determination. To illustrate the "confusion [that] continues to surround the issue of withholding or stopping treatment," one U.S. News & World Report article described a Los Angeles prosecutor who filed murder charges against two doctors when they removed a 55-year-old brain damaged comatose patient from life-support and withheld feedings until the patient died.1
Some patients have gone to drastic measures to avoid unwanted resuscitation. One 85-year-old former nurse from England, fearing the possibility that she might have to "die twice," tattooed the words "do not resuscitate" and the picture of a heart with a "no go sign" through it on her breasts so that she could make her intentions known if she ever became seriously ill.2
The often chaotic conditions in the emergency department (ED) added to the potential for confusion when attempting to implement DNR orders create the possibility that emergency healthcare providers may provide either more or less treatment than patients desire in an emergency situation.
Background
Terminology. DNR orders are a form of advance directive. Since the Terri Schiavo case, there has been a significant rise in interest about advance directives. One newspaper reported that a North Carolina state Web site providing blank advance directives and registration instructions experienced a tenfold increase in traffic in the month after Ms. Schiavo's death.3 The advance directives most common-ly encountered in the ED are the (durable) power of attorney, the living will, and the DNR order.
A living will is a set of written instructions created by a patient at a time when the patient is still capable of making healthcare decisions. Should a patient later become unable to make healthcare decisions, a living will may help guide the patient's medical care. Living wills usually describe patient desires regarding life prolonging treatment such as enteral or parenteral nutrition, intravenous medications, antibiotics, vasoactive drugs, and life support. Like the durable power of attorney, a living will only becomes operative if a patient loses decision-making capacity.
Do-not-resuscitate (DNR) orders may be incorporated into a living will or may be standalone documents. Like the living will, DNR orders are created when a patient still possesses decision-making capacity and state whether a patient wishes to be resuscitated in the event of a cardiopulmonary arrest. Generally, DNR orders only apply to terminal and irreversible conditions, but deciding when DNR orders apply can create a dilemma. For example, should a physician withhold lifesaving care from a patient with respiratory failure due to congestive heart failure (a reversible condition) when, with temporary respiratory assistance, the patient would otherwise live many more years? Situations such as this have been a topic of debate among medical and legal ethicists.
Competency and Consent. A necessary aspect of determining whether advance directives apply is determining whether a patient is competent to make a decision. If a patient is deemed competent, advance directives do not apply, and the healthcare providers should seek the patient's guidance for any healthcare decisions. Absent evidence to the contrary, the law generally assumes that a patient is competent.4 While patient competency issues are outside the scope of this article, it is important to note that patient competency can be difficult to determine. Patients who are unconscious or who are in a vegetative state are obviously not competent to make their own decisions. But patients who have ingested ethanol may be competent, and, even if deemed incompetent, those same patients will, at some point, become competent once more. Competency for elderly patients with metabolic derangements may wax and wane throughout the day, while the competency of psychiatric patients may be directly related to their last dose of medication.
Lack of competency may prevent patients from making future healthcare decisions. In re Roche5 involved a patient with senile dementia who had previously been judged incompetent in court proceedings. During a subsequent nursing home visit by the public guardian, the patient stated that she wanted no cardiopulmonary resuscitation (CPR) and no artificial feeding or hydration under any circumstances. In a hearing to obtain a DNR order, the Court stated that "some elderly nursing home patients who are generally incompetent . . . have lucid periods" when they can clearly express their wishes. Nevertheless, because the patient had previously been declared incompetent, the Court held that wishes the patient expressed after her competency hearing had no binding effect on the healthcare providers.
Consent is another important concept relating to advance directives. In most circumstances, patients must consent to treatment. Before DNR orders become effective, patients or their surrogates must generally be aware of the consequences of a DNR order and must consent to the DNR order being entered. Once entered, DNR orders effectively become refusals of consent to treatment. It is important to respect a patient's decision in this regard. One court decision deemed advance directives "evidence of the most persuasive quality" and a "clear and convincing demonstration" of a patient's intent to decline medical treatment by artificial means while in a terminally ill condition.6 Another court stated that "a potential patient may . . . expressly refuse treatment, [and], if so, even in an emergency, any medical treatment is a battery."7 Absence of informed consent is a central issue in many DNR cases.
Legal History of Patient Self-Determination and DNR Orders. Advance directives stem from a patient's right to self-autonomy and self-determination. Court decisions over a patient's right to self-determination began with early common law actions for battery. In an 1891 decision, the United States Supreme Court held that "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."8
The oft-cited 1914 case of Schloendorff v. Society of the New York Hospital involved a physician who obtained consent to perform an examination of a suspicious abdominal mass under anesthesia. While the patient was unconscious, the physician examined the patient and then performed surgery to remove a fibroid tumor without the patient's consent. The Appellate Court ruled that a surgery without consent amounts to "trespass," stating that "a surgeon who performs an operation without the patient's consent commits an assault, for which he is liable in damages."9 As a side note, Justice Cordozo's ruling in this case is almost always truncated when cited. The opinion concludes by noting that there were exceptions to a physician's liability for assault, including "cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained."10
In re Quinlan11 involved a 22-year-old patient brought to the hospital in a comatose state after having two 15-minutes apneic episodes. Karen Quinlan remained in a "persistent vegetative state" requiring mechanical ventilation to remain alive. Despite her inability to comprehend the environment around her and the improbability that she would have any meaningful recovery, she met none of the criteria for brain death. Quinlan's father, Joseph, sought appointment as her guardian so that he could withdraw Karen's "life-sustaining mechanisms." The hospital, treating physicians, and the State of New Jersey opposed Joseph Quinlan's request. In allowing life support to be discontinued, the New Jersey Supreme Court held that individual privacy rights begin to outweigh the State's interest in the preservation of human life "as the degree of bodily invasion increases and the prognosis dims." In an ironic twist to the Quinlan case, after being disconnected from the ventilator, Karen Quinlan remained alive in a vegetative state for nearly 10 years, finally succumbing to pneumonia.
In 1989, Cruzan v. Missouri Department of Health12 upheld the constitutionality of State laws that chose to require "clear and convincing evidence" of an incompetent patient's decision to forego life support before allowing removal of life support. Nancy Cruzan was severely injured in an automobile accident, and remained alive in a persistent vegetative state similar to that of Karen Quinlan. Unlike Quinlan, who required a ventilator, Cruzan had normal respiratory functions. Cruzan's parents, as guardians, requested that the hospital discontinue artificial nutrition and hydration. When the hospital refused to do so without a court order, Cruzan's parents petitioned for, and received, approval to do so from the state probate court. The Missouri State Supreme Court reversed, holding that nondescript statements Cruzan made to her roommate concerning her desire not to live life if she were to become a "vegetable" were insufficiently vague for Cruzan's parents to exercise substituted judgment on her behalf. The United States Supreme Court affirmed, holding that, given the "overwhelming finality" of a decision to refuse life-sustaining treatment, the United States Constitution does not forbid state-mandated "procedural safeguard[s]" to ensure that the action of the surrogate conforms to the wishes expressed by the patient when the patient was competent.
In 1991, the Federal Patient Self-Determination Act was enacted, requiring that all healthcare institutions provide patients with a written summary of both the patient's healthcare decision-making rights and the healthcare institution's policies regarding advance directives. The law requires healthcare institutions to document the existence of advance directives in a patient's medical records, and it forbids discrimination against patients based upon whether they have made advance directives.
Although patients have a legal right to refuse life-sustaining treatment, the right to self-determination is not absolute. Washington vs. Glucksberg13 involved a constitutional challenge to a Washington State statute criminalizing both suicide and assisted suicide. The United States Supreme Court held that the ability to commit suicide or to have assistance in committing suicide was not a liberty interest protected by the Due Process Clause. Similarly, multiple other court decisions have listed countervailing State interests that also must be considered when determining a patient's right to self-determination including preservation of life, protection of innocent third parties, prevention of suicide, and maintenance of the ethical integrity of the medical profession.14 A patient's liberty interests in self-determination, then, would not allow a physician to honor the DNR order of a patient who was in a life-threatening condition due to a suicide attempt.
Creating A DNR Order. The mechanism by which a DNR order is created and entered varies by state law. Many states have standardized forms to be used when creating DNR orders. A sample Illinois State DNR order can be found at http://snipurl.com/SampleDNROrder.
A survey of several state statutes governing implementation of DNR orders shows many common legal requirements for initiating and entering DNR orders:15
• A person or surrogate wishing to obtain a DNR order must generally be at least 18 years of age.
• DNR orders may be requested orally or in writing.
• Before a DNR order may be entered, there must be witnesses to the patient's (or surrogate's) request and those witnesses generally must sign the DNR order.
• Documentation of a terminal condition may be required before a DNR order becomes effective.
• Once a DNR order has been created, the order must be promptly entered in a patient's medical records.
• DNR orders may be immediately revoked either verbally, in writing, or by any other action demonstrating an intent to revoke the DNR order.
• Physicians may not be required to comply with DNR orders, but if physicians are unwilling to comply with DNR orders, they must immediately notify the patient or surrogate and must attempt to transfer the patient's care to another physician or institution that will agree to honor the DNR order.
The statutes reviewed also provide physicians with immunity from civil, criminal, or professional liability for decisions relating to a patient's DNR status when those decisions are made in good faith.
Ambiguities When Implementing DNR Orders. Some aspects of treating patients with DNR orders are straightforward. For example, patients with DNR orders who do not require CPR should be managed as aggressively as similarly situated patients without DNR orders. The concept that "DNR does not mean do not treat'" has likely been reinforced since hospital rounds in medical school. Withholding CPR on a pulseless and apneic patient with a valid DNR order is also a relatively simple decision. Other decisions regarding patients with DNR orders can be quite difficult. For example, should awake and alert patients with ventricular tachycardia be treated? What if the same patient then becomes unconscious should treatment be withheld? Is antibiotic treatment allowed in a patient who does not want "life-sustaining" treatment? What are "heroic measures" for the purposes of a DNR order? At what point does the DNR order become effective? When the patient has apnea? Agonal respirations? Respirations fewer than 8 per minute? There is no consensus on the management of these and similar questions, leaving physicians in the undesirable position of possibly having to provide either more or less care than the patient may have desired.
Given the many ambiguities surrounding the implementation of DNR orders, it is probably not surprising that physicians have had to defend lawsuits both for providing care when no care was desired and for withholding care when the care was wanted. One legal scholar has termed some aspects of DNR implementation as "do what I want, not what I say."16
Actions Against Physicians Who Follow DNR Orders
The cases against physicians who fail to resuscitate patients pursuant to DNR orders usually allege that the DNR order was improperly obtained.
Case #1. Kubian v. Alexian Brothers Med. Ctr. 17
A patient's daughter consented to the entry of a DNR order on a patient five days after the patient had been admitted to the hospital. The patient died shortly after the DNR order was entered. According to nursing notes, the patient was unable to sign the DNR papers due to "deterioration and weakness." Although the patient was married, the hospital staff did not seek the wife's consent for the DNR order. The nursing notes stated that consent was signed by the daughter because of a "marriage agreement that they will be responsible for their own medical expenses" and because the patient's current wife was a "second marriage." The referenced "agreement" had appointed the daughter as executor of the patient's estate, but did not appoint her as power of attorney over his health decisions.
After the patient died, his wife sued the hospital for wrongful death and loss of consortium, alleging that consent for the DNR order was improper because it should have been obtained from her and not from the patient's daughter.
The Illinois Appellate Court dismissed the wife's wrongful death claims based on the terms of the marriage agreement, but allowed the wife's loss of consortium claim to proceed based upon the allegedly improper consent.
Case #2. Payne v. Marion General Hospital18
A 65-year-old patient had been admitted for treatment of multiple medical problems. His respiratory status progressively worsened to the point that he had difficulty breathing during the middle of the night. The nurses suctioned mucous from the patient's lungs, but he continued to deteriorate. The patient's family was called, and the patient's sister arrived in the hospital a short time later. After noting the patient's condition, the patient's sister stated that she "did not want [the patient] resuscitated if he began to die." The nurse notified the physician of the sister's statement, and, after confirming the sister's wishes, the physician entered a DNR order in the chart. Several hours later, the patient died.
The physician later sued the patient's estate for compensation. The patient's estate filed a counterclaim, alleging that the patient was awake, alert, able to make an informed decision regarding resuscitation, and was never asked his preferences. In accordance with Indiana malpractice statutes, the case was reviewed by a medical review panel, which came to the opinion that none of the defendants breached the standard of care.
The trial court dismissed the case against the defendants, but the Appellate Court reinstated the case, citing a material issue of fact over whether the patient was competent at the time the DNR order was entered.
While the physician testified that the patient was incompetent and terminally ill, the Court quoted testimony from several nurses who stated that the patient appeared conscious and alert until shortly before his death. The physician allegedly made "no effort" to determine whether the patient was competent to make a decision about his resuscitation. In addition, even though the physician testified that the patient had a "terminal condition," the Appellate Court noted that the patient had previously been treated and discharged from the same hospital for the same problems, calling into question whether the patient's medical problems were really "terminal."
As a defense, the physician introduced the medical review panel's findings, arguing that the case should be dismissed because the plaintiff had not presented any expert testimony to rebut the review panel's opinion. The Appellate Court held that the issue whether the physician obtained informed consent for the DNR order was within the realm of an ordinary laymen's comprehension and did not require expert testimony.
Comment
Informed consent was a central issue in both of these cases. In the Kubian case, the issue was over who had legal standing to consent to a DNR order when a patient lost decision-making capacity. State laws usually define the hierarchy of people authorized to make healthcare decisions on a patient's behalf. In general, the hierarchy descends from guardian to agent possessing healthcare durable power of attorney to spouse to adult children to parents to siblings and then to more distant relatives or acquaintances. In this case, the Court allowed the wife's claim to proceed because it believed that, in the absence of a power of attorney, the patient's wife had more authority than the patient's daughter to decide whether a DNR order should have been entered.
In the Payne case, a discrepancy in the assessments of the patient's healthcare providers created an issue as to whether the patient was capable of providing consent. Communication among physicians, consultants, nursing staff, and family members can help all parties reach a consensus on objective assessments of a patient's competency. When possible, it may be beneficial to obtain the patient's input regarding a DNR order, even if the patient does not appear to have decision-making capacity. Remember that if a court must make a retrospective review to determine competency, patients are generally presumed competent unless evidence demonstrates otherwise. Note this Court's ruling that, unlike medical malpractice cases, expert testimony is not required to determine whether informed consent has been obtained.
Another issue in the Payne case was whether the patient had a terminal condition. If the presence of a terminal condition is a legal requirement for entry of a DNR order, documenting the presence of a terminal condition is yet another legal difficulty a physician could face. Determining the presence of a terminal condition in the ED can be exceedingly difficult, especially when healthcare providers are unfamiliar with a patient's history.
Finally, note the ambiguity of the family member's request for a DNR order in Payne: Do not resuscitate the patient "if he beg[ins] to die." Assuming this was the family member's only request, the determination of when a patient "begins to die" is entirely subjective. Ambiguous instructions regarding the implementation of DNR orders create added liability for healthcare providers. For this reason, it is important to obtain and document specific indications for withholding life-prolonging treatment from the patient and family members. Making these determinations for the first time in the ED during a patient's healthcare crisis is not recommended.
Actions Against Physicians Who Ignore DNR Orders
Wrongful living claims have been brought against physicians who resuscitate patients despite the presence of valid DNR orders. The theory in a wrongful living claim is that death is better than life in a vegetative state and that physicians who do not allow patients a peaceful death should be liable for a patient's continued suffering.
Case #3. Leach v. Shapiro19
An elderly patient was brought to the hospital in respiratory distress and subsequently suffered a cardiorespiratory arrest. She was "placed on life support systems" (apparently meaning that she was intubated) and remained in a vegetative state for several months before her husband petitioned the court for an order to terminate life support. The court entered this order, life support was withdrawn, and the patient died.
Approximately 18 months later, the husband sued the hospital and the physician, alleging that the patient was placed on life support systems without her consent or the consent of her family. The allegations in the complaint are not entirely clear, but stated that the patient "expressly advised" the physicians that she "did not wish to be kept alive by machines" and that despite her wishes, she was put on life support four days after her arrival in the hospital. The husband sought damages for the time the patient was on life support. The trial court dismissed the plaintiff's case.
In its review, the Court of Appeals held that "absent legislation to the contrary, the patient's right to refuse treatment is absolute . . . [and] a patient may recover for battery if his refusal is ignored." The court noted that in an emergency, implied consent is generally assumed, but that implied consent cannot overcome a patient's express wishes to refuse treatment. Before a patient can knowingly refuse treatment in a medical emergency, the refusal must "satisfy the same standards of knowledge and understanding required for informed consent." Ultimately, the Court of Appeals reinstated the plaintiff's claims, ruling that the nature of the consent and nature of the refusal of treatment were issues of fact that had not been resolved.
Case #4. Anderson v. St. Francis-St. George Hosp.20
An 82-year-old patient entered a hospital for fainting episodes and chest pain. Shortly after admission, the attending physician entered a DNR order on the patient's chart at the patient's request. Several days later, the patient had an episode of ventricular tachycardia and was defibrillated by a nurse. After recovering consciousness, the patient thanked the nurse for saving his life. During his hospital stay, the patient unfortunately suffered a stroke that paralyzed his entire right side. He lived in a nursing home for a year before dying, and during that time "enjoyed numerous visits and outings with his family."
Before his death, the patient filed a lawsuit against the hospital for failing to honor the DNR order. The trial court dismissed the action, but the lawsuit was reinstated by the Court of Appeals. The Ohio Supreme Court reversed, once again dismissing the patient's claim. Because wrongful living was an issue that had never reached the Ohio Supreme Court, the Court reviewed opinions from other states. The opinions it cited uniformly negated damages for unwanted prolongation of a patient's life, stating that "life . . . cannot rationally be said to be a detriment . . . compared to . . . nonexistence" and "life cannot be a compensable harm." In addition to a lack of damages, the plaintiffs also failed to prove that the defibrillation administered by the nurse actually caused the patient's stroke and other damages. Although "wrongful living" was not an option available under these circumstances, the Court held that a medical professional who performed unwanted lifesaving procedures on a patient could be liable for battery and could be subject to licensing sanctions. While the nurse was technically liable for medical battery, the unwanted cardioversion produced no burns or broken bones, and the patient was entitled to recover only nominal damages.
This Court's opinion was not unanimous. Three dissenting justices viewed the claim not as a wrongful life lawsuit, but rather as a claim for negligently failing to follow a patient's instructions violating the patient's informed refusal of care. Because the hospital negligently failed to follow the patient's instructions, the patient had an increased likelihood of suffering a stroke. These dissenting justices apparently believed that the expenses associated with living in an incapacitated state were a detriment for which there could be monetary compensation.
Case # 5. Osgood v. Genesys Reg. Med. Ctr.21
In this case, the agent possessing the healthcare durable power of attorney for a young stroke victim filed suit against a hospital and its employees after they provided life-sustaining care against the wishes of the agent and against the patient's previous verbal requests.
The patient had a history of multiple hemorrhagic strokes and seizures and had been admitted to the hospital on numerous occasions. She had appointed her mother as her agent via a healthcare durable power of attorney in the event that she was unable to make healthcare decisions on her own. She had also informed medical staff at the hospital that if she were ever faced with artificial life support, she preferred to die.
During a subsequent hospitalization, the patient suffered a seizure that caused her to become comatose and resulted in severe shock. The patient's mother, also acting as the patient's agent, told the physician that if the patient would have no meaningful life, artificial life support was to be withheld. The physician assured the patient's mother that a ventilator and other procedures were only "comfort measures" and obtained the mother's consent to provide these treatments. Eventually the patient came out of her coma, but suffered irreversible brain damage and required constant home care.
A jury heard this evidence and awarded the patient $16 million in damages. The verdict was subsequently reduced to less than $1.5 million in post-trial motions and later was settled for an undisclosed amount during appeal.
Comment
Wrongful living claims present a significant liability that especially affects ED personnel. Patients frequently present to EDs in extremis, and healthcare providers must make immediate determinations whether to provide resuscitation. Unfortunately, case law is still unsettled on exactly when healthcare providers may be liable for providing or withholding care. Some courts have refused to create or recognize a cause of action for wrongful life/wrongful living/wrongful prolongation of life.22 Conversely, as shown in the cases above, some courts are willing to recognize wrongful living actions. Many states have resolved this controversy by passing laws that provide immunity to healthcare providers who make good-faith decisions regarding DNR orders.
Also, note the themes involved in two of the cited cases: vague instructions and lack of informed consent. The patient in Leach did not wish to be "kept alive by machines" while the surrogate in Osgood ordered that life support be withheld if the patient "would have no meaningful life." Despite the fact that both statements were subject to a wide variety of interpretations, the statements were used to form the basis of a "lack of informed consent" claim against the healthcare providers. These court cases should underscore the importance of ensuring that advance directives clearly and unambiguously express the wishes of a patient or surrogate.
DNR Does Not Mean "Do Not Treat"
The following case shows that there may be a legal basis for the adage: DNR does not mean "do not treat."
Case #6. Alphonse v. Acadian Ambulance Serv.23
A patient's family entered a DNR order on a terminally ill patient with multiple medical problems who had lapsed into a coma. Given the patient's poor prognosis, she was transferred from the hospital to a rehabilitation center. During her transfer, the patient's supplemental oxygen was temporarily discontinued. By the time she arrived at the rehabilitation center, she was no longer breathing.
The patient's family sued the ambulance service, alleging that they were negligent in failing to provide the patient with supplemental oxygen during transport and that the lack of oxygen was a direct cause of the patient's death. The trial court agreed, holding that the failure to provide the patient with supplemental oxygen took away any chance of survival the patient may have had. Ultimately, the family members were awarded damages of $200,000.
The Louisiana Court of Appeals reversed, stating that because the patient was in a coma and was never expected to regain consciousness, her chances of survival were essentially zero. No evidence supported a conclusion that the patient's outcome would have been different if oxygen had been administered during transport. Because the plaintiffs failed to prove that a lack of oxygen had any measurable effect on the patient's chances of survival, the plaintiffs could not prove the necessary elements of a medical malpractice claim and the case was dismissed.
Comment
Although the case was ultimately decided in the defendant's favor, the Appellate Court's holding suggests that the plaintiffs may have been entitled to the $200,000 judgment had they demonstrated that the lack of treatment would have prolonged this DNR patient's life.
Mature Minors
As if the issues about DNR orders and patient consent weren't confusing enough, some court decisions have increased the confusion by allowing "mature" minors to take part in the DNR decision-making process.
Case # 7. Belcher v. Charleston Area Med. Ctr24
The patient in this case suffered from muscular dystrophy and was confined to a wheelchair. He came to the hospital after choking on mucous and requiring mouth-to-mouth resuscitation for an episode of apnea. He was admitted for observation and had another apneic episode requiring intubation later that day. Several days later, the patient was able to be extubated. Immediately after having the tube removed, the patient appeared "anxious and apprehensive." The physician offered to re-intubate the patient, but the patient shook his head "no." Later that day, because the patient was only 17 years old, the physician discussed the patient's status with the patient's parents. The parents decided that they did not want their son re-intubated or resuscitated unless their son requested it and signed a progress note to this effect. The parents specifically told the physician that they did not want their 17-year-old son involved in the DNR decision-making process. A DNR order was entered on the patient's chart. The following day, the patient had another respiratory arrest, was not resuscitated pursuant to the DNR order, and died.
The parents then filed a medical malpractice and wrongful death lawsuit against the physician and the hospital. A jury returned a verdict in favor of the physician and hospital.
The parents appealed, and the case eventually made it to the Supreme Court of West Virginia, which held that the patient was a "mature minor," and that a question remained as to whether the patient would have agreed to a DNR order being entered on his chart.
The Supreme Court reasoned that a minor who has undergone medical treatments for a longstanding medical condition may be capable of taking part in decisions regarding that treatment. The Court acknowledged that the physician's decision to allow a minor to participate in the decision-making process would be "second-guessed" and recommended that the medical profession, therefore, engage in "good record-keeping."
The Court also set forth multiple factors a physician should consider when determining whether a minor may refuse or consent to treatment, including the minor's age, ability, experience, education, training, degree of maturity, judgment, conduct, demeanor and whether the minor has the capacity to appreciate the nature, risks, and consequences of the treatment to be administered/withheld.
Because the jury was not informed about the mature minor doctrine, the Supreme Court remanded the case to the trial court to be re-tried on that issue.
In re Swan,25 a 17-year-old patient's wishes were involved. The patient was involved in a car accident and suffered severe brain injuries. While a feeding tube had initially been placed, the tube malfunctioned and had to be removed. The parents, physicians, and hospital sought a determination from the courts as to whether any of them would be subject to liability for stopping artificial nutrition and hydration and letting the patient die. The district attorney opposed any removal of medical treatment. Before the patient's accident, while visiting a disabled friend who had also been in a car accident, the patient reportedly wanted to know why they wouldn't just let the friend die peacefully, stating "If I can't be myself . . . no way . . . let me go to sleep."
Maine's Supreme Court held that "capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits." Because the patient expressed clear wishes not to be maintained alive in a vegetative state, Maine's Supreme Court allowed the patient's parents to "effectuate" his decision by withdrawing life support.
Comment
Both of these cases raise the important point that minors may have the capacity to participate in the medical decision-making process under certain circumstances. Unfortunately, these cases also raise several problems in implementing a minor's wishes.
Neither of the decisions set forth the steps to definitively conclude when a minor has become "mature." Is a 9-year-old savant capable of medical decision making? What about a patient on the eve of his 18th birthday but who nevertheless acts "immature"? Unfortunately, there is no way to define "maturity" absent a court hearing. In emergency situations, the opportunity for court proceedings seldom exists.
In addition, these decisions provided is no guidance as to what a physician should do if a mature minor's guardian disagrees with the minor's decision. As with the physician in the Belcher case, other physicians could be placed into a no-win situation.
It is unlikely that emergency personnel will need to address a mature minor's wishes when entering a DNR order. However, the mature minor doctrine and related exceptions to a minor's ability to consent to medical treatment may apply to other consent issues, therefore, the emergency physician and nurse should be familiar with the concept.
DNR and EMTALA
Among the responsibilities applying to physicians who provide emergency care is the requirement under Federal law that any patient coming to the ED and requesting treatment must receive evaluation and stabilizing treatment.26 The Emergency Medical Treatment and Active Labor Act (EMTALA) could present a unique challenge in caring for patients with DNR orders.
While EMTALA requires that hospitals provide stabilizing treatment, EMTALA also allows patients to refuse to consent to medical treatment.27 Before escaping liability under EMTALA, the healthcare provider must offer the patient an examination and stabilizing treatment, must inform the individual or proxy of the risks and benefits to examination and treatment, and the individual or proxy must explicitly refuse the treatment. In addition, the medical record must contain a description of the examination or treatment that was refused and should indicate that the patient or proxy was informed of the risks and benefits of the examination and treatment. The hospital must take all reasonable steps to obtain a written refusal.
Failure to provide stabilizing treatment to patients with a DNR order does not conflict with EMTALA regulations. For example, in Family Independence Agency v. AMB,28 the Michigan Court of Appeals held that "there simply is no evidence that EMTALA abrogates the common law right to informed consent and the corollary right to refuse treatment, much less any other applicable statutory rights." Similarly, in Stevison v. Enid Health Systems,29 the U.S. Court of Appeals stated that a hospital has satisfied its obligations under EMTALA if the patient refuses to consent to treatment.
In those patients consenting to care, EMTALA requires that stabilizing treatment be provided to a patient even if the treatment would be futile. In Matter of Baby K.,30 the mother and guardian of an anencephalic child refused to enter a DNR order on the infant after it had been born in the hospital. The hospital and medical staff informed the child's mother that the child was "permanently unconscious" and had a short life expectancy, but the mother insisted that the child be put on a mechanical ventilator whenever the infant developed breathing difficulty. The hospital attempted to transfer the child, but was unable to find another facility willing to accept transfer. The child was eventually stabilized to the point that it could be transferred to a nursing home, but the child returned to the hospital several times in respiratory distress requiring mechanical ventilation. The hospital then filed a declaratory action seeking to determine whether it was required to provide stabilizing treatment to the infant. The Federal Court of Appeals held that the plain language of EMTALA required that hospitals and physicians either transfer or provide stabilizing treatment to patients with emergency medical conditions, regardless of whether the care would be futile. The Court ended its opinion by noting that "EMTALA does not carve out an exception for anencephalic infants in respiratory distress any more than it carves out an exception for comatose patients, those with lung cancer, or those with muscular dystrophy, all of whom . . . possess an underlying medical condition that severely affects their quality of life and ultimately may result in their death."
Minimizing Liability Regarding DNR Orders
The lack of a standardized approach to implementing DNR orders can create a significant legal risk to healthcare providers. The following suggestions may help increase patient satisfaction while decreasing provider liability.
Obtaining DNR orders in the ED. All states have laws regarding advance directives, and most states have laws specifically relating to DNR orders. Statutes from many states can be found online by performing a search using the state name and the word "statutes." Be familiar with your state's requirements for creating, entering, and following advance directives and DNR orders.
A life-threatening event in the ED when the medical staff's attention is focused upon the patient's immediate medical condition is probably not the time to obtain a DNR order. Recall that lack of informed consent was used as the basis for liability in several cases against healthcare providers who entered DNR orders. Determining patient competency, obtaining informed consent, documenting a terminal condition, and managing a critically ill patient in the midst of a crisis will undoubtedly be difficult. Decisions made by healthcare providers who attempt to obtain a DNR order in the ED are likely to be second-guessed. Creating DNR orders in the ED is likely to create liability if an undesired outcome results from a hastily crafted advance directive.
Treating Patients Who Have Pre-existing DNR Orders. Many states provide legal immunity for healthcare providers that make good faith decisions regarding DNR orders. Again, a familiarity with your state's laws regarding DNR orders is an important part of providing end-of-life care.
DNR orders may not be readily available or the existence of DNR orders may not be known. To reduce confusion in such circumstances, ED consent forms may contain a clause stating that the person signing the form has "no knowledge of an active DNR order" or, if a DNR order does exist, that the person signing the form "has personally notified the treating physician" of this fact. Alternatively, a healthcare provider can document the patient or family's representations regarding the presence or absence of a DNR order in the patient's chart. In most circumstances, such documentation will provide evidence of the good faith that was used to reach a decision whether to resuscitate a critically ill patient.
Any review of a patient's end-of-life care will necessarily be retrospective. Statements made by patients and their families, the mental status of the parties involved, decisions made by patients or proxies, acts leading up to those decisions, and outcomes are all issues that may be important in justifying a medical provider's treatment decisions. Taking the time to document the factors considered in a decision to provide or withhold care will later help to justify that decision.
Advance directives, including DNR orders, do not apply if a patient has decision-making capacity. Patients are assumed competent until there is convincing evidence to the contrary. Discuss the DNR order with the patient, even if the patient appears to lack decision-making capacity. Note the patient's response, any issues or physical findings that could affect the patient's capacity, and how those factors influenced the decision whether to consider the patient's DNR order.
For the most part, healthcare surrogates only have legal authority to direct healthcare decisions after a patient loses decision-making capacity. While these surrogates are free to express their views, it is the competent patient's decision that is legally binding on the healthcare providers.
DNR orders are immediately revocable. If a patient requests treatment or manifests the desire to revoke the DNR order in any way, the DNR order is no longer operative. If the patient revokes the DNR order, make sure to clearly document the patient's request in the medical record. In fact, the patient revoking a DNR order does not have to be legally competent to issue a valid revocation in many cases.
Communication among the physician, the patient, the patient's family members, and the patient's other healthcare providers can help all parties agree upon the patient's management. Such discussions are especially important in clarifying when, if ever, healthcare staff should discontinue treatment and what treatments are to be withheld. If disagreements arise between surrogates or family members, hospital administration may help mediate a solution.
Conclusion
Being aware of the legal requirements for implementing DNR orders and maintaining open communications with patients and family members will help maximize the patient's control over end-of-life care while minimizing liability to the healthcare provider.
Endnotes
1. Gest T. When lawyers second-guess doctors, U.S. News & World Report; 2/13/1984.
2. Tattoo pleads let me die', The Birmingham Post (England) 3/6/2003.
3. Eisley M. Interest in living wills rises with Schiavo case. The News & Observer (Raleigh, NC) 3/30/2005.
4. See, e.g., Saunders v. State of New York, 492 N.Y.S.2d 510 (1985), NYS Pub. Statutes Section 2963, California Probate Statutes Section 4657.
5. 687 A.2d 349 (1996).
6. Saunders v. State of New York, 492 N.Y.S.2d 510 (1985).
7. Allore v. Flower Hospital, 699 N.E.2d 560 (OH 1997).
8. Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891). For similar holdings, see also Mohr v. Williams, 104 N.W. 12 (Minn. 1905); Pratt v. Davis, 79 N.E. 562 (Ill. 1906).
9. Schloendorff v. Society of the New York Hospital, 105 N.E. 92, 93 (N.Y., 1914).
10. Id.
11. 355 A.2d 647 (N.J. 1976), cert. denied 429 U.S. 922 (1976).
12. Cruzan v. Missouri Department of Health, 497 U.S. 261 (1989).
13. Washington v. Glucksberg, 521 U.S. 702 (1997).
14. Saunders v. State of New York, 492 N.Y.S.2d 510 (1985); In re Conroy, 486 A.2d 1209 (1985); Mack v. Mack, 618 A.2d 744 (1993).
15. See, e.g., California Probate Code sections 4600-4805, New York Public Health Law § 2965, Illinois Compiled Statutes 755 ILCS 40/65, Ohio Revised Code § 2133. Note that the listed requirements are for illustrative purposes only and may not apply to each state. It is important that each practitioner research his/her state's specific legal requirements for entering and adhering to DNR orders.
16. Crawford LS. Verdicts are Controversial, Contradictory; Wrongful Life Cases: Damned if You Do, Damned if You Don't, Medical Malpractice Law & Strategy 15;1 (1998).
17. Kubian v. Alexian Brothers Medical Center, 651 N.E.2d 231 (1995).
18. Payne v. Marion General Hospital, 549 N.E.2d 1043 (1990).
19. Leach v. Shapiro, 489 N.E.2d 1047 (1984).
20. Anderson v. St. Francis-St. George Hospital, 671 N.E.2d 225 (1996).
21. Osgood v. Genesys Regional Medical Center, No. 94-26731-NH, (Mich. Cir.Ct. Genesee Co. March 7, 1997).
22. See, e.g., Estate of Taylor v. Muncie Medical Investors, 727 N.E.2d 466 (IN 2000); Kassama v. Magat, 767 A.2d 348 (MD 2001); Benoy v. Simons, 831 P.2d 167 (WA 1992); Klavan v. Crozer-Chester Medical Center, 60 F.Supp. 2d 436 (PA 1999).
23. Alphonse v. Acadian Ambulance Services, 844 So.2d 294 (2003).
24. Belcher v. Charleston Area Medical Center, 422 S.E.2d 827 (1992).
25. In re Swan, 569 A.2d 1202 (ME 1990).
26. 42 U.S.C. § 1395dd ( available athttp://snipurl.com/EMTALA).
27. 42 U.S.C. § 1395dd(b)(2).
28. Family Independence Agency v. AMB, 640 N.W.2d 262 (2001).
29. Stevison v. Enid Health Systems, 920 F.2d 710 (10th Cir. 1990).
30. 16 F.3d 590 (4th Cir. 1994).
It is reasonably settled that from a legal and/or ethical viewpoint that a competent patient has the right to direct his or her own medical care in any scenario. However, when the patient who is receiving medical care is no longer legally competent or never was legally competent to undertake medical decisions, the legal and ethical waters become murky.Subscribe Now for Access
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