The Risk of Do Not Resuscitate Orders

A recent article in USA Today profiled the case of Madeline Neumann, a Florida woman with Alzheimer’s disease whose granddaughters filed a lawsuit against her nursing home and physician because they did not follow her “Do Not Resuscitate” (DNR) order and elected to transfer her to the local hospital. The suit, expected to go to trial within the next year, has brought to light the legal complexities of a DNR order and the risks associated with them. Unless providers have a clear understanding of what the law requires, what DNR procedures are in place, and the specifics of the DNR order itself, they may find themselves at risk for legal liability.

Basic Definitions

As most readers know, DNR orders are similar to “advance directives” in that they both provide written instructions on what medical care the patient does (or does not) want in situations where he or she cannot communicate. DNR orders, however, focus on one type of medical intervention: cardiopulmonary resuscitation (CPR). At its simplest, a DNR order tells medical professionals not to perform CPR in the event of a heart failure. Unfortunately, that is where “simple” ends. Clinically speaking, the term “CPR” includes a number of interventions, from mouth-to-mouth resuscitation to insertion of a breathing tube into the airway to the use of electric shock. Some patients may want every available intervention, while others may not. How far should providers intervene in reviving the patient? This is a key question that should be answered in the DNR order and corresponding procedures.

In addition, because CPR is the common term used in the medical community to refer to resuscitation, CPR may not literally mean “CPR.” The options available to treat very sick patients are broader than CPR as literally defined, including intensive care, antibiotic therapy, hydration, and nutritional support. Do DNR orders encompass these treatments? As a result, DNR protocols vary from provider to provider. Some facilities, for example, require separate orders for different elements of CPR (such as mouth-to-mouth resuscitation versus insertion of a tube to open the patient’s airway). Clinicians sometimes interpret a DNR order as permission to withhold or withdraw other treatments; a study published in the Archives of Internal Medicine reveals that patients with DNR orders are less likely to receive other types of life-sustaining care.

From the patient/family perspective, some worry that DNR implies abandonment of the patient or acceptance of death, when in fact nearly half of all hospitalized patients with DNR orders survive to discharge, according to a study published in the American Journal of Medicine.

Clear Cut Direction?

So where should providers and patients turn for guidance? First, most institutional providers have established specific, written DNR protocols that should be carefully reviewed by providers. Indeed, since Jan. 1, 1988, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has mandated that all hospitals develop formal policies regarding the writing of DNR orders. In addition, although the federal Patient Self-Determination Act of 1990 does not mandate a specific protocol for the implementation of DNR orders, it calls for acute care facilities to formulate a written policy on advance directives, present this information to the patient at admission, and record the patient’s response in the medical record. A natural component of an advance directive involves when to administer CPR or similar life-saving treatments.

Beyond a review of current provider protocols, a step-wise approach is helpful in discussing DNR orders with patients:

1. Establish an appropriate setting for the discussion – find a comfortable and private location to have a discussion with the patient on DNR orders, and include family, if desired by the patient.

2. Ask the patient and family what they understand, such as the patient’s current health condition, future prognosis, what they expect will happen, etc. If it becomes clear that the patient does not have the same understanding as the provider about his or her overall health, this is the time to determine whether the patient wants to discuss the “real picture.”

3. Discuss a DNR order, including context in which resuscitation would be considered (for example, under what circumstances should CPR be used, and to what extent). Naturally, this is a sensitive topic for most patients and should be approached with that context in mind.

4. Establish and implement the plan – obtaining written consent may not be required by law but is highly recommended, as well as document the entire discussion with the patient. Perhaps tape recording the conversation would be helpful as well.

Final Thoughts

Ultimately, the decision lies with the patient, and it is the patient’s goals and desires that should be met as much as practical (such as within the limits of modern medical care). However, as both Madeline Neumann and Terri Schiavo have shown, if the patient’s wishes are not clearly known, providers may find themselves in a complex (and expensive) legal and ethical battle that could have been avoided.

DNR and Medical Futility

CPR is unique among medical interventions in that it is routinely administered without patient consent. Yet there are situations in which providers believe CPR would not succeed in reviving the patient. In these circumstances, physicians may elect to implement a DNR order based on medical futility.

This, of course, raises a number of ethical and legal concerns – for starters, what is “medical futility” and who determines if a patient’s condition has worsened to the point of justifying a DNR order? For guidance, most states have enacted DNR statutes that, at a minimum:

  • Clarify the circumstances under which a DNR order is appropriate
  • Provide a listing of surrogate decision makers legally authorized to consent to the issuance of a DNR order on behalf of an incompetent patient
  • Offer a procedure for issuing a DNR order when the patient has not given prior consent and none of the authorized surrogate decision makers are available
  • Grant immunity from civil liability, criminal prosecution, or professional disciplinary action to health care facilities and physicians who, in good faith, carry out a decision regarding a DNR order

In addition, most medical institutions incorporate DNR procedures based on medical futility into their general advance directive/DNR protocols, and providers should review those protocols carefully to ensure compliance.

Where To Look For DNR Guidance

The American Heart Association has published guidelines on the use of CPR and Emergency Cardiovascular Care (ECC), most recently updated in 2005.

To view the guidelines, visit: http://www.americanheart.org/presenter.jhtml?identifier=3035517.

The American Medical Association

addresses DNR orders in its Code of Ethics, which can be viewed at: http://www.ama-assn.org/ama/pub/category/8461.html.

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