Do Not Resuscitate: Form Over Substance? - Searcy Denney

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Do Not Resuscitate: Form Over Substance?

There are few areas in medicine today more fraught with contention and high emotion than the issuance of a DNR – do not resuscitate – order on a patient. The purpose of this article is to review the inauguration and history of DNRs, to state the current law in Florida regarding DNRs, and to offer some suggestions for a more medically reasonable approach to the issuance of DNRs. In Florida, a physician is the only person licensed by law to issue a DNR. While a patient may refuse cardiopulmonary resuscitation (CPR) treatment, the patient’s refusal is not a medical order, whereas a DNR is. Addressed to medical providers in the event a patient suffers either cardiac or respiratory arrest, the DNR is narrow and specific: no attempt is to be made to reestablish cardiac and/or respiratory function.

DNRs and CPR

dnrCPR is a procedure whose efficacy has assumed almost mythic proportions. Accompanied by lights and sirens, it is often portrayed to the public as a spectacular and usually successful effort to avoid death, returning the victim to as good, or perhaps better, health than before the arrest. Such a glamorous outcome is far from typical. This myth is perpetuated when physicians are loath to address the reality of resuscitation with their patients – their silence enables patients to buy into the Hollywood stereotype.

The ability to perform CPR began in the mid-1960s when patients, usually middle-aged men, were undergoing open chest surgery. In cases where the heart failed, direct palpable stimulation was applied to the exposed organ and rhythm could be restored. These patients, adequately oxygenated with a patent airway, usually responded well. In the ensuing decades, that operatic success created a niche health caregiver – the advanced life support team. Its purpose and specialized training is to provide ubiquitous CPR and to transport anyone to hospitals regardless of circumstance or location.

Historically, there have been two kinds of DNR orders (DNROs): in-hospital and out-of-hospital. In-hospital DNROs were placed on the appropriate patient’s chart for the withholding of CPR in the event of an arrest. Out-of-hospital DNROs were initially written as discharge instructions for the same patients. Although unable to recover and with a short-term prognosis, some patients were stable enough to be discharged to their home, perhaps even able to engage in social activities such as going out for dinner. The purpose of the out-of-hospital DNRO was to allow the patient a natural death should an arrest occur. Absent such a plan, he or she would undergo resuscitation when paramedics responded.

DNROs and the Law

Throughout the 1980s, out-of-hospital DNROs were written and signed by doctors for presentation to paramedics. Patients either carried them on their person or had them posted in their homes. In 1993, the Florida Administrative Code Rule 10D-66.325 standardized the DNRO to facilitate recognition by emergency personnel and to address issues of compliance. Initially, the rule enabled the patient to wear a special bracelet as a DNRO itself, or to proffer a Florida Department of Health and Rehabilitative Services’ HRS Form 1896. In 1995, the rule no longer recognized the bracelet as a stand-alone DNRO. Only the HRS Form 1896, printed on yellow paper, was recognized. When properly executed, it authorized EMS technicians to withhold CPR. Absent this written directive, the victim was to be resuscitated.

Since the creation of the rule governing Florida’s HRS Form 1896, policy has changed several times (only the color of the paper has remained unchanged). Initially, the state-sanctioned DNRO could be written only if a physician made a medical finding that the patient was in a terminal condition. In 2000, the requirement of a diagnosed terminal condition was deleted (although the older forms requiring that condition are still recognized), and the form was totally changed so that the physician merely needed to obtain the patient’s informed consent, or that of the patient’s designee, in order to validate it.

In a bizarre Alice-in-Wonderland turn of events, the out-of-hospital DNRO is now the preferred in-hospital document, often with disastrous results. In many hospitals, risk management departments have adopted the HRS Form 1896 and, fearing liability, are refusing to allow physicians to make a medical determination to withhold resuscitation based solely on the patient’s condition. Instead, the sole burden of decision has been transferred to the patient, or to the patient’s family (because the patient is too sick by the time the issue is addressed). Such a policy fails to take into account whether CPR is medically appropriate. Hospitals would do well to realize that any treatment modality (including CPR) ought to be medically appropriate before it is even placed for consideration of an informed consent. Medical appropriateness is the cornerstone in any considered or proffered therapy.

When there is no one to sign on behalf of an un-befriended, incapacitated patient, the patient must be resuscitated and maintained on a ventilator. This is true even when the “treatment” is contrary to the medical judgment of the patient’s physician. Why? Because there was no one to sign the HRS Form 1896 giving informed consent to withhold that treatment. It is absurd that the misapplication of an inappropriate form controls the situation. This would be the stuff of high comedy were it not so tragic. It is not just poor medical care, it is unethical and illegal.

In fact, the law does provide for the withholding or withdrawal of CPR in the absence of an executed DNR should the physician believe that such treatment would not provide any medical benefit. The Florida legislature, recognizing the necessity of allowing a physician to make that medical decision, specifically provided that “the absence of an order (pursuant to Form 1896) not to resuscitate does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law” in the following out-of-hospital settings: hospital emergency rooms (FS 395.1041(3)(l)); nursing homes (FS 400.142(3)); assisted living facilities (FS 400.4255(3)); and hospices (FS 400.6095(8)). Although Florida statutes have empowered the physician outside the hospital, many local hospital administrative policies have tied his/her hands inside.

Suggestions for a Medically Reasonable Approach

In determining end-of-life policy, the patient’s best interests, rather than administrative fear of liability, should be controlling.

  1. Recognize the difference between a patient-driven DNR based on informed consent in cases where a real medical choice exists, and a physician-driven DNR where no reasonable medical choice is to be made.
  2. Maintain or re-invigorate the two-physician DNR order when the patient is incapacitated and no designee is available. This is similar to the requirement for emergency surgery.
  3. Include a discussion of the realistic expectations for CPR during the preparation of the advance directive with the patient, and conduct such discussions when the patient is capable. Explain that there may come a time when CPR is no longer medically reasonable.

Marnie R. Poncy RN, Esquire
Bio-Ethics Law/ Health Law Advocacy

West Palm Beach

Searcy Denney 2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409-6601
Toll-free: (800) 780-8607
Phone: (561) 686-6300
En Espanol: (800) 220-7006

Tallahassee

Searcy Denney The Towle House, 517 N. Calhoun St.
Tallahassee, FL 32301-1231
Toll-free: (888) 549-7011
Phone: (850) 224-7600
En Espanol: (800) 220-7006


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