Legal Implications of DNR Order

(Editor's note: In his May 1996 "EMS" column, contributing editor Rich Adams outlined "do not resuscitate" (DNR) protocols for EMS crews. The following column looks at DNR orders from a legal standpoint.) Whether riding as a first responder on an...


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(Editor's note: In his May 1996 "EMS" column, contributing editor Rich Adams outlined "do not resuscitate" (DNR) protocols for EMS crews. The following column looks at DNR orders from a legal standpoint.)

Whether riding as a first responder on an engine company, as an emergency medical technician (EMT), as a paramedic or in another capacity, it can be one of the most frustrating and difficult situations that you confront.

You arrive on the scene to find the patient in cardiac arrest. But a family member (or someone else on the scene) insists that the patient does not want to be resuscitated, and shows a piece of paper that seems to document the patient's wishes.

Our training, instincts and understanding of the law make us want to begin cardiopulmonary resuscitation (CPR) and take whatever other measures are appropriate. Indeed, this is reinforced by the legal concept of implied consent. By this doctrine, the law presumes that when a person is unconscious and it appears that a life-threatening illness or injury exists, the patient would want to receive treatment. Further, there is a "duty to act" and provide care to our level of certification that arises because of our involvement in the fire and EMS services. A "failure to act" could create liability if treatment is not provided.

Through a variety of laws, many states have recognized that persons have a right to refuse treatment in almost every circumstance. In a life-threatening situation, however, it is crucial that care not be mistakenly withheld. So, it is crucial to make sure that the patient indeed does not want to be resuscitated.

Many states have recognized "living wills" or do not resuscitate (DNR) orders as the basis for not undertaking CPR. Initially, only persons with terminal conditions were permitted to execute these documents. Thus, they generally were found only in nursing homes, hospices or other medical facilities. However, now there are many cases in which individuals who were not necessarily previously suffering from serious medical problems have executed such documents. Therefore, living wills are being found more commonly in private residences and other settings.

Simply stated, a living will is a document that states how a person wishes to be treated when incapacitated. Generally, it must be witnessed and signed by at least one other person. Indeed, given the importance of the potential effect of the document, some states require that it be signed by a physician. Such requirements generally are imposed to assure that the person understands the document's consequences and has seriously considered the matter.

Utah is one state that provides clear legal guidance to EMS providers regarding living wills. It has a law and regulations that specifically provide for emergency medical services and a program for implementing the law. The Utah Bureau of Emergency Medical Services has developed an implementation protocol. There even is a DNR coordinator, who provides training to EMS personnel and other health care providers.

The Utah law recognizes that individuals have the right to make decisions about their own health care. This includes the right to instruct medical care providers in advance to withhold life-sustaining procedures. The law describes how the living will must be executed and even provides a model form. It also provides procedures to be followed when the decision to withhold treatment is made.

Unfortunately, according to Andy Ostler, the Utah DNR coordinator, the original law required two physicians to approve the decision to cease treatment. This made the law virtually useless for EMS personnel. In 1993, however, the Utah law was amended to provide specifically for emergency personnel. The result is a law and a program that could serve as a model for other states.

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