Law brings new requirements for in-hospital do-no-resuscitate orders
Last June, during his mother’s final days, Mark Casanova, MD, (Below) found himself on the other side of a conversation he had initiated thousands of times: the side of a family member whose loved one is facing end-of-life considerations.
After his mother suffered a stroke, from which she eventually died while in hospice care, Dr. Casanova — director of clinical ethics and palliative care at Baylor University Medical Center — rushed to his mother’s bedside at a New Braunfels hospital. Members of her care team came in to confirm his mother’s code status, which Dr. Casanova’s father had indicated when she was admitted: Do not resuscitate (DNR).
“And I remember from an almost reflexive place on the inside of myself,” Dr. Casanova recalled, “predominantly as a son … I uttered the words as I was looking at the physician and I was standing next to my dad: ‘You’re not going to make my dad sign anything, are you?’”
Signing consent for a DNR order, he says, “simply feels different” than any of the other consent forms patients or their families are compelled to sign.
“You have no qualms signing a consent for mom to go to the operating room, or the patient themselves to go to the operating room, or signing hospice consent,” says Dr. Casanova, who’s also chair of the Texas Medical Association Council on Constitution and Bylaws.
“But it fundamentally feels different to have this intimate conversation to end with, ‘Now, can you sign this paper?’”
For years — like most medical orders — in-hospital DNR orders have not specifically been subject to state-mandated requirements. The emotions involved make it a tough conversation to have, and it likely never will get any easier. But the logistics of entering a valid in-hospital DNR order are about to become considerably more complex. A law taking effect in April — the product of Senate Bill 11 from last year’s special session of the Texas Legislature — lays out new requirements affecting physicians in hospitals or health care facilities.
SB 11 does preserve a physician’s ability to use reasonable medical judgment to unilaterally enter a DNR order if the patient’s death is imminent and the patient, when in a competent state, hasn’t previously conveyed directions against a DNR order. But doctors who could treat end-of-life patients in a hospital — including emergency physicians — must take note of the law’s host of criteria for what else can constitute a valid DNR. They also should note that SB 11 introduces the legal risk of a criminal misdemeanor charge for unlawfully canceling, concealing, falsifying, or effectuating someone else’s DNR order.
The bill’s language leaves some issues murky, such as required notice, TMA notes in a white paper on how SB 11 affects lawful DNR practice. That makes appropriate consultation of a facility’s policy and/or legal counsel especially important.
“In terms of the actual operational nuts and bolts, there’s a lot of ambiguity” in SB 11, Dr. Casanova said. In January, Baylor Scott & White’s legal counsel still was assessing what the law would look like in practice, he says.
“But the reality is, I think we’re all watchfully waiting to see how the legislators and the powers that be ... interpret their own state bill and how they anticipate the applicability of some of this,” Dr. Casanova said. “Because what many of us have felt is that there are some nuances in this that are in fact going to be problematic to implement. And I think that’s where we have concerns.”
What the law says
Robert Fine, MD, (Left) clinical director of Baylor Scott & White’s Office of Clinical Ethics and Palliative Care, says a DNR discussion normally is handled with sensitivity.
“You have this serious conversation where people nod their heads, and you say, ‘OK, I’m going to be there for you. We’re going to do everything we can to help you. But [with a DNR order], if God calls you, we won’t beat on your chest. We won’t put that hard tube in your throat. We won’t crack your ribs. We won’t give you painful electrical shocks,’” Dr. Fine said. “Everybody nods their head, and that’s that. It’s a sensitive, private conversation.”
Before SB 11 took effect, as TMA’s white paper notes, no specific Texas laws or regulations governed in-hospital DNRs. Only out-of-hospital DNR orders were explicitly regulated, and they applied to any life-sustaining treatment.
SB 11’s requirements on in-hospital DNR orders apply only to cardiopulmonary resuscitation (CPR), which Texas law defines as “any medical intervention used to restore circulatory or respiratory function that has ceased.”
Under the law, a DNR order instructs a health care professional not to attempt CPR “on a patient whose circulatory or respiratory function ceases.”
For a DNR order to be valid, it must be dated, issued by a patient’s attending physician, and in compliance with one of a number of criteria, which include:
- The written and dated directions of a patient who was competent at the time the patient wrote the directions;
- The oral directions of a competent patient, if those directions are delivered to or observed by two competent adult witnesses;
- A properly executed written directive, meaning qualified witnesses or a notary public witnessed the directive;
- A nonwritten directive of a competent patient with a diagnosed terminal or irreversible condition, witnessed by the attending physician and two other qualifying witnesses;
- A directive issued on behalf of a person younger than 18 by the person’s adult spouse, parents, or legal guardian; and
- A physician’s reasonable medical judgment that the patient’s death is imminent and a DNR is medically appropriate, if the patient hasn’t conveyed directions against a DNR order at a time when the patient was competent.
According to TMA’s white paper, the “oral directions” and “nonwritten directive” criteria have slightly different witness requirements.
For the oral-directions option, at least one witness must not be an employee of the attending physician; an employee of the facility providing direct care; or an officer, director, partner, or business office employee of the facility or any parent organization of the facility.
Those same requirements also apply to the nonattending-physician witnesses in the “nonwritten directive” option, but so do several more. Among the other exclusions, those witnesses cannot be someone related by blood to the patient and cannot be someone designated to make the patient’s health care decisions.
While the requirements for this option are more stringent, TMA’s white paper notes, it “allows for types of nonwritten communication other than oral communication.”
That would include, for example, acknowledgment by a head nod.
The bill lacks clarity on a physician’s “reasonable medical judgment” and also doesn’t define “imminent.”
If a physician issues a DNR order based on “reasonable medical judgment,” two notice requirements could come into play. Under the first notice, the patient or someone making the patient’s medical decisions must be notified of the DNR before it’s placed in the patient’s medical record.
Under the second, a medical decisionmaker for the patient who arrives at the hospital — such as a spouse, legal guardian, or someone who has a medical power of attorney — must receive notification of the DNR. The physician, physician assistant, or nurse should record that notice in the patient’s medical record.
TMA’s white paper says the law “does not clarify how these two notice requirements work together. In some cases, it may be that notice to one individual may satisfy both requirements. On the other hand, there may be other circumstances in which physicians must provide two distinct notices. Because of the lack of clarity surrounding the notice provisions, being aware of the requirements and making a good faith effort to comply and recording that effort is crucial.”
The law also allows for an override of a DNR by a patient, legal guardian, or agent under power of attorney, requiring a physician to comply with that person’s wishes if he or she revokes the advance directive on which the DNR order was based or expresses to any direct caregiver a revocation of consent or an intent to revoke the order.
SB 11 provides limited liability protection for physicians who act in good faith either to issue a DNR or to follow one by causing CPR to be withheld or withdrawn. However, the bill makes it a criminal misdemeanor for someone to intentionally cancel, conceal, effectuate, or falsify another person’s DNR order, or to intentionally conceal or withhold knowledge of another person’s revocation of a DNR. And if a physician intentionally fails to effectuate a DNR in violation of the law, or issues an unlawful DNR order, disciplinary action from the Texas Medical Board also is possible.
Houston emergency physician Arlo Weltge, MD, believes that for the most part, the new law won’t disrupt physicians’ routine practice.
“But I think like so many things, there’s the routine, and then physicians recognize when there’s an exception to the rule,” he said. “This law really speaks to that exception to the rule: when the family’s not aware, and particularly in the setting of an in-hospital patient, particularly where there’s one that the family or the patient are very strongly in favor of taking advantage of every treatment or every option. This law could potentially affect the end-of-life care by requiring that, in fact, everybody’s involved with the decision to place the DNR order in the record.”
Assessing the impact
Authored by Sen. Charles Perry (R-Lubbock), SB 11 emerged as an attempt to enhance patient protections in DNR order procedures and requirements. It was one of the items Gov. Greg Abbott asked the legislature to address during the special session. Through his office, Senator Perry declined an interview request for this story.
Rep. Greg Bonnen, MD (R-Friendswood), sponsored the legislation in the House. TMA was ultimately neutral on the bill after the final version helped address some of medicine’s previous concerns.
The original version of SB 11 applied to all life-sustaining measures, but TMA felt that was too broad and expressed concern that overregulation on life-sustaining treatment could disrupt a physician’s ability to carry out a patient’s wishes.
As a result, the final version of SB 11 applied only to CPR. It also addressed TMA’s concerns about witness requirements that were too restrictive and clarified liability protections for physicians who act in good faith. TMA still couldn’t ultimately support the bill because of concerns that included its notice requirements and the insertion of criminal penalties.
Dr. Casanova says a proper end-of-life talk with a patient — one that aligns the medical facts with the patient and family’s spiritual considerations — can bring them considerable relief. When physicians initiate end-of-life talks, he said, “We’re looking at the patient and saying, ‘Here’s a set of physiologic body-function issues that are going awry here, and I foresee death as a very potential outcome based on the scientific facts.’”
Meanwhile, patients and families are focused on their fear and grieving and on questions such as whether an afterlife exists.
Merging those two aspects of what’s occurring is important, Dr. Casanova says.
“My concern, and what you feel when you’re on the receiving end of this conversation is, it’s hard enough emotionally and spiritually; what are you going to ask me to do now logistically?” he said. “There’s that added component that I think changes the dynamic. It adds, in my opinion, an unnecessary level of stress. And then, furthermore, to have somebody sitting across from you [whom] you may not know — it’s going to be interesting. It’s going to be a challenge. We’ll do what we have to do. We’re troopers, generally speaking, as physicians. But it’s going to be something that I think is going to change the intimacy of these conversations. We’ll see what happens.”
After Governor Abbott signed the measure in August, a statement from his office said SB 11 “closes a loophole in state law” that allowed doctors to place DNRs without patient consent.
Joe Pojman, executive director of Texas Alliance for Life, which supported the legislation, says the group’s main concern was that SB 11 include that requirement of notification and consent in advance.
“We think that in the vast majority of cases, this is already happening,” Mr. Pojman said. “But there was some testimony both in 2013 and in 2017 that in rare circumstances, that basic process has not been followed in every case.”
The Texas Catholic Conference of Bishops supported SB 11’s application specifically to CPR, Executive Director Jennifer Carr Allmon says, noting that other life-sustaining interventions are covered through the Texas Advance Directives Act and its option for a physician to take a DNR dispute to a hospital’s ethics committee. (See “Difficult Situations,” December 2017 Texas Medicine, pages 37–42, or visit www.texmed.org/difficultsituations)
“And we believe that provides an appropriate balance of provider and patient autonomy, so that the provider’s right of conscience is protected and patients have an avenue to pursue when they disagree with a provider’s decision,” Ms. Allmon said. “In the case of CPR, it’s an immediate, you-must-do-it-or-the-person-will-perish kind of situation, and we recognize that in many cases, CPR is not effective, that statistically it … most often is not going to work. But if a patient wants to try it one more time … we take the perspective that it is respecting the patient’s final wishes in that instance.”
Multiple studies have indicated survival-to-discharge rates for adults who receive in-hospital CPR are very low, with some data indicating less than a fifth of adult patients leave the hospital alive. (See “How Effective Is CPR?” below.)
It’s hoped that when the Texas Health and Human Services Commission (HHSC) proposes its formal rules to implement SB 11, those rules will provide some clarity on the gaps in the law. An HHSC spokesperson told Texas Medicine in January the agency was meeting with stakeholders to gather input as it drafted the rules.
Dr. Casanova says many institutions are preparing for different scenarios where the DNR law could apply.
“It would certainly serve clinicians and [people in] leadership positions within their institutions, institutions themselves to begin to [say], ‘Hey, let’s prep for a worst case scenario,’” Dr. Casanova said.
“’There’s going to be a lot of logistical needs here. We’re going to have to have printed documents. We’re going to have to have signature pages. Do we need duplicates? Let’s begin to speak to … our volunteer corps, our social work departments, our chaplaincy department. And let’s have them prepped for the need for witnessing these conversations.’
“In large hospitals, that may not be as big of a struggle. I don’t think it’s going to be easy for anybody. But for our smaller community hospitals, this might [bring] challenges to figure out.”
SIDEBAR
How effective is CPR?
- A 2003 REPORT pulling data from the American Heart Association’s National Registry of Cardiopulmonary Resuscitation looked at more than 14,000 cardiac arrest events in adults involving an in-hospital resuscitation attempt over a period of two-and-a-half years. While 44 percent of those victims had a return of spontaneous circulation, just 17 percent survived to hospital discharge.
- A 2014 report in Age and Ageing, the journal of the British Geriatrics Society, examined the effectiveness of in-hospital cardiopulmonary resuscitation (CPR) on older patients by reviewing 29 studies from a number of countries, including the United States, the United Kingdom, Australia, Canada, India, Sweden, and Italy. In the studies, 38.6 percent of patients who were 70 or older had a return of spontaneous circulation following CPR. However, the review found the chances of the patients surviving until discharge dropped the older they were:
- Patients aged 70–79 years, 18.7%
- Patients aged 80–89 years, 15.4%
- Patients aged 90 years and older, 11.6%
Overall, the review found that more than half of patients who initially survived CPR died in the hospital before discharge.
SIDEBAR
Advance care planning education from TMA
ADVANCE CARE PLANNING: Guide to Legal Forms, a TMA publication, helps physicians become familiar with the documentation needed to protect a patient and make sure his or her living wishes are carried out. Advance Care Planning includes these forms with additional information on each:
- Directive to Physicians and Family or Surrogates,
- Out-of-Hospital Do-Not-Resuscitate Order,
- Medical Power of Attorney Designation of Health Care Agent,
- Authorization Agreement for Nonparent Relative,
- HIPAA Release of Information Authorization,
- Statutory Durable Power of Attorney,
- Declaration of Guardian in the Event of Later Incapacity or Need of Guardian, and
- Declaration of Appointment of Guardian for My Child(ren) in the Event of My Death or Incapacity.
Physicians will receive 1 AMA PRA Category 1™ Credit and 1 ethics credit upon reading the publication and completing a post-test and course evaluation.
In addition, TMA is offering two on-demand webinars related to advance care planning. Planning for Death or Incapacity: The Physician’s Dual Role counts for 1.5 AMA PRA Category 1™ credits. Helping Patients With Advance Care Planning counts for 0.75 AMA PRA Category 1™ credit.
SIDEBAR
SB 11 at a glance
Senate Bill 11 governing in-hospital do-not-resuscitate (DNR) orders takes effect April 1. Under the new law, for a DNR to be valid, it must be issued by the patient’s attending physician and must:
- Comply with a legally valid directive or treatment decision regarding the patient’s care, such as the patient’s own written or oral directions or the directions of a patient’s legal guardian under medical power of attorney, or
- Not go against the directions of a patient who was competent when he or she conveyed those directions, and must be in accordance with the physician’s belief that the patient’s death is imminent and the DNR order is medically appropriate.
The bill provides limited liability protection for physicians and other health care professionals who act in good faith to issue a lawful DNR order or who cause cardiopulmonary resuscitation to be withheld or withdrawn from a patient in lawful accordance with a DNR order. However, physicians or others who intentionally conceal, cancel, effectuate, or falsify someone else’s DNR order are subject to being charged with a criminal misdemeanor, as are people who intentionally conceal or withhold knowledge of someone else’s revocation of a DNR in violation of the law.
Joey Berlin is associate editor for Texas Medicine. You can reach him by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; or by email.
Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.
All articles in Texas Medicine that mention Texas Medical Association’s stance on state legislation are defined as “legislative advertising,” according to Texas Govt. Code Ann. §305.027. That law requires disclosure of the name and address of the person who contracts with the printer to publish the legislative advertising in Texas Medicine: Louis J. Goodman, PhD, Executive Vice President, TMA, 401 W. 15th St., Austin, TX 78701.
Tex Med. 2018;114(3):24-29