The new Texas law on in-hospital do-not-resuscitate (DNR) orders is like a Rubik’s Cube, Austin attorney Missy Atwood told physicians Saturday during the Dawn Duster presentation at the Texas Medical Association’s 2019 Winter Conference.
“One, they can be pretty frustrating to get right,” she said. “But the other real reason for that is there are nine options for putting a valid DNR order in place.”
The in-hospital DNR law, codified as Senate Bill 11 in the 2017 Texas Legislature, went into effect on April 1, 2018. Ms. Atwood and Jason Morrow, MD, medical director of inpatient palliative medicine at University Health System in San Antonio, examined the legal requirements of the complicated law and associated ethical considerations.
To be valid under the law, Ms. Atwood explained, a DNR order must be issued by the attending physician, must be dated, and must fit within one of nine options. A full explanation can be found in a TMA white paper on SB 11 (TMA Members Only)
One of the new portions of the law, the ninth option, allows a DNR if a patient hasn’t conveyed directions against a DNR order while competent; the physician’s judgment is that death is imminent regardless of whether the patient receives CPR; and in the physician’s judgment, the DNR is medically appropriate. That option carries documentation and notice requirements, such as the attending physician must document that death is imminent and that a DNR is medically appropriate.
“On the other hand, if you have a patient and you know that during their last hospitalization, they said, ‘I want everything done for me,’ … this option is not available to you,” Ms. Atwood said. “But if you have no information — or, I would suggest to you, that if the patient did have an out-of-hospital DNR, that’s some indication that they’re not opposed to it. Then I think it’s appropriate to move forward.”
She noted that “imminent” isn’t defined in the law or in its accompanying regulations. Another potential complication: the state’s definition of “attending physician” is “clear as mud,” Ms. Atwood said; state law defines that person as a physician “selected by or assigned to a patient who has primary responsibility for a patient's treatment and care.”
Dr. Morrow presented a series of hypothetical situations involving end-of-life patients. He polled the physicians in the room on possible courses of action for each, noting “some tension” between the law and what physicians think is right. “When you’re in the trenches, it’s hard,” he said.
Referring to the state’s definition of “attending physician,” he said the concept of primary responsibility “doesn’t have to be a zero-sum game, [where] only one person can have it. … Because the state doesn’t split hairs for you, your health system can find a way to define ‘primary responsibility’ and to define ‘attending’ so that it can … be more than one in-house.”
When approaching whether to write a DNR order, Dr. Morrow advised physicians and their health systems to examine what is ethically required, what is forbidden, and what is permissible.