SOUTHEAST TENNESSEE LEGAL SERVICES

 

 

 

 

   

 

   

Ketner's Mill and Waterfall, Marion County

This memorandum discusses the following topics that pertain to the use of Do-Not-Resuscitate (DNR) Orders:

 

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Skepticism about the Medical Benefits of CPR

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DNR Orders in a Hospital

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Out-of-Hospital DNR Orders

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State Law Variances

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Medical Conditions to Which the Order Applies

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The Definition of CPR

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Signing the Order

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Revoking the Order

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Use of a Copy

 

It suggests that DNR Orders are different in scope and effect than many people suspect.  A copy of Tennessee's form may be obtained by clicking here.

       

Skepticism about the Medical Benefits of CPR

 

The failure of a heart to beat no longer means certain death. The dramatic procedure of cardiopulmonary resuscitation (CPR) has aroused public consciousness about the meaning of life. Trained amateurs, as well as nurses, physicians, and emergency technicians, now practice it. It has evolved from a rescue technique to an everyday and expected remedy. Its disadvantages are commonly thought by the public to be overwhelmed by its advantages for elderly and very ill people.

 

Yet, resuscitation may be a chest-thumping, bone-crushing, electrifying experience. (In a hospital setting, it may consist of a host of less aggressive measures like drug support and fluid resuscitation.)[1]

 

As a rule, modern medicine believes that CPR  is right in relatively few circumstances for a relatively small number of persons. The success of the technique depends upon the general health of the patient; the specific nature of the stoppage of the heartbeat; the elapsed time between the stoppage and the resuscitation; how long resuscitation is applied; the skill of the team administering CPR; the life support tools that are available; and other factors. [2]

 

DNR Orders are the legal result of the skepticism of physicians and their patients about the efficacy of CPR for very ill persons. 

 

DNR Orders in a Hospital

 

Orders to limit the applicability of CPR originally arose in hospitals. They are sometimes called “no code” orders. Doctors are expected to use their skill, training, and experience to recommend only those procedures and treatments that are useful in a given situation.

 

Usually, a DNR Order in the hospital requires the consent of the patient or the patient's authorized representative. Nonetheless, in situations that the physician deems futile, it is possible that neither the patient nor his or her family will know how, why, or even that, a physician has ordered resuscitation not to be administered. The rationale is that disclosure will only damage the morale of the patient or that there is no point in discussing that which cannot benefit a patient.

 

Without prior disclosure and an opportunity for the patient or representative to seek another medical opinion, a no-code order probably is not legally supportable. But orders of this type are regularly used.

 

Out-of-Hospital DNR Orders

 

Out-of-hospital DNR Orders are similar but rest on a different legal footing. They are an offshoot of the doctrine now known as the patient's right to choose the nature and amount of medical treatment he or she wants at the end of life. These orders are a form of living will that is acknowledged by a doctor and followed by the medical system. Doctors authenticate the patient's decision by issuing instructions to emergency, hospital, and other personnel not to resuscitate the patient.  With this introduction, let us then examine briefly the underlying doctrine.

 

Many persons have signed advance directives requiring that life-prolonging measures not be used when they are in a terminal condition, unconsciousness, or another condition described in the document. Contemporaneously, emergency services are now more accessible to persons living at home or in places other than nursing homes. The mission of emergency personnel is to stabilize patients and to transmit them as rapidly as possible to hospitals.

 

What this means is that emergency personnel need immediate access to a set of legally binding instructions that they can locate readily at a home to which they are summoned. Out-of-hospital DNR Orders meet this need because they are signed by doctors, usually in a standard format, and often placed by patients in a place where they can be easily located. Bracelets and necklaces speak to their existence.

 

Thirty-nine of 51 U.S. jurisdictions, including the District of Columbia, have legislation or regulation permitting the use of DNR Orders outside a hospital. Federal law does not address the issue specifically but, through Medicare law, does encourage the use of advance directives. The impetus behind DNR legislation is the avoidance of liability. Emergency services, like many doctors, have been unwilling to withhold medical treatments -- even those known to be futile and physically hurtful to a patient -- without specific authorization from a source that will shield them from lawsuits.    

 

State Law Variances

 

The effect of the order depends upon what state law says, and statutes vary considerably. Florida law is particularly specific and is helpful in deciding what the order says, omits, and should say. In this discussion, it will be contrasted with Michigan and Tennessee law. This is not to treat them unfavorably, but merely to show that statutes are not uniform.

 

Medical Conditions to Which the Order Applies

 

A Florida patient must be in a terminal condition, a status that is not further described in the order and is probably not of significance to emergency personnel. But it does mean something to the physician and the patient. Under Florida’s statute, a terminal condition refers to (1) a situation where there is no reasonable medical probability of recovery and that, without treatment, can be expected to result in death and (2) permanent unconsciousness.[3]

 

The first of these definitions is reasonably specific, contrasting with Tennessee’s reference to terminal illness without further elaboration.  Michigan takes the approach of not defining medical conditions at all. In other words, if the doctor and patient have signed the document, and if both breathing and heartbeat stop, so must treatment.

 

These definitions have great significance. Chronic heart disease, for example, might not meet the statutory definition in Florida because the course of the illness is so difficult to predict. In other states where a terminal condition means that death must be expected within a short period of time, a doctor has an even more difficult time in determining whether to sign a DNR Order for a patient with chronic heart disease. This means that person who has fragile bones and has suffered a loss of oxygen -- with consequent brain damage -- might undergo the bone-crushing remedy of CPR because state law does not permit a DNR Order to be in effect.

 

The Definition of CPR

 

Florida  defines with particularity what it means by CPR. It includes cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, defibrillation and related procedures. This is a good bit more helpful than Tennessee’s “medical treatment or artificial ventilatory support” and Michigan’s “resuscitation” without further elaboration. Moreover, the Florida document then instructs emergency personnel "to provide to the patient other medical interventions, such as intravenous fluids, oxygen, or other therapies deemed necessary to provide comfort care or to alleviate pain."

 

As mentioned above, Florida and Michigan require that both heartbeat and breathing stop. Tennessee says that either may occur.

 

Signing the Order

 

Not only must the patient sign the request for the Florida order, but two persons must also witness his or her signature. (No qualifications for the witnesses are listed, unlike the situation that pertains to other forms of advance directive.) The patient must also acknowledge that the order can be revoked orally or in writing or by destruction of it or the accompanying bracelet.

 

Curiously, the Florida patient must also recite: "I also understand that if EMS personnel have any doubt about the applicability or validity of this order, they will begin cardiopulmonary resuscitation." This is an invitation for emergency personnel to ignore it. Tennessee also has gaping holes in its statute because both the attending physician and the health care representative may overrule the directions contained in the order. Michigan has no exceptions of this type.

 

In case the patient is not competent, a legal representative may sign a DNR Order for him or her in Florida. Helpfully, the document lists the order of priority among decision-makers: a representative named in a health care power of attorney, a court-appointed guardian, a spouse, etc. He or she must also state a reasonable belief that the patient would make the same decision under the same circumstances were he or she competent.

 

Florida insists that the patient's physician consult with another physician about the patient's physical condition and, if he or she believes the patient to be incompetent, about the patient’s mental condition also. If the patient is incompetent but has signed an advance directive, it must be attached to the order. Michigan  and Tennessee  have no similar requirements.

 

Revoking the Order

 

Florida permits revocation of the order by all of the following means: an oral statement of the patient to the emergency personnel (but not to others), by physical cancellation or mutilation of the order, or by signing an advance directive inconsistent with the order. Presumably, the physician may not revoke the order unilaterally but must do so upon request of the patient.

 

Use of a Copy

 

It is not always possible for emergency personnel to locate the original of the order. It may not be clear whether the original has been lost or destroyed. Should they insist upon the original? Can they rely upon a photocopy? Because statutes often permit revocation of a DNR by destruction of it, as is the case in Florida, emergency personnel usually rely only upon the original document.

 

They may be able to overlook the absence of an original order. Florida regulations permit the development of protocols so that emergency personnel may decline to resuscitate even without a DNR Order .[4] Such protocols would presumably permit reliance upon copies and summaries, including those in registries. Tennessee and Michigan have not addressed the use of copies or summaries.

 

[1] Scofield, Giles R. Is Consent Useful when Resuscitation Isn't? Howell, Joseph H. and Sale, William F., eds., Life Choices: A Hastings Center Introduction to Bioethics. Washington, D.C.: Georgetown University Press, 1995.

[2]Taffett, George E., Teasdale, Thomas A., and Luchi, Robert. In-Hospital Cardiopulmonary Resuscitation. Journal of the American Medicine Association  262: 2069, 1988; Safar, Peter. Resuscitation from Clinical Death: Pathophysiologic Limits and Therapeutic Potentials. Critical Care Medicine 16: 923, 1988; and Cummins, Richard O., Chesemore, Kaye, White, Roger C. and others.   Defibrillator Failures.  Journal of the American Medicine Association  264: 1019, 1990.

[3] Fla. Stat. Sec. 765.101(17).

[4]  Fla. Adm. Code Sec. 10D-64E-2.031(4).

 

Copyright 2003 by Whitney Durand. Used with permission.