Legal Pearls: Does a DNR Order Supersede a Living Will?

End of life issues are increasingly problematic as modern medicine finds ways to keep people alive longer. Therefore, it is essential for patients to think in advance about what life-saving measures they might want. However, as this month’s case demonstrates, even when a patient has expressed himself, there are sometimes still issues due to mixed messages.

Clinical Scenario

The patient was an 81-year-old nursing home resident who had been brought to the emergency department of the local hospital due to shortness of breath. He had a long list of serious conditions, including a recent intracranial hemorrhage.

The physician was a pulmonologist who had been summoned to the emergency department due to the severity of this case. A CT scan showed massive blood clotting in the patient’s lungs, affecting the flow of blood to his left leg. The scan also revealed congestive heart failure. The patient’s recent hemorrhage precluded the use of blood thinners. The only option was surgical, but the patient’s odds of survival were not good.

The physician gently explained the situation to the patient and his family, including his three adult children.  He was alert, communicative, oriented to place and time, and understood what was happening.

“The only real option we have is to surgically insert a filter in your groin,” said the doctor. “Blood clots are very dangerous. But realistically, there is also a good chance that you will not survive the operation.” The physician looked directly at the patient. “Have you thought about whether you would want “heroic measures” taken – CPR, a breathing machine, or electric shocks to try to start your heart – if you went into cardiac arrest?”

The patient sat up straighter in his bed and looked back at the doctor as he shook his head. “No, I don’t want those things,” he said. “I’ll have the operation, but if something happens, just let me go…”

“You are sure?” asked the physician.

“Yes,” said the patient.

“Do you understand what he is saying?” The physician asked the family.

“Yes,” one of the daughters answered. The other children nodded.

The physician wrote the following in the patient’s chart: “Do Not Resuscitate. I discussed with the patient whether he would want CPR, heart defibrillation, or mechanical ventilation. He was quite clear that he did not wish this. I then addressed with the family members in attendance why I did this and whether they understood, and all expressed their agreement.” He also noted the patient’s mentally cogent status.

The operation itself went well, but a few hours later the patient suddenly stopped breathing while his family was in the room. A nurse’s aide began CPR and called code while the distraught family looked on.

The physician heard the code and rushed to the patient’s room to find the aide performing CPR.

“Stop!” he told the aide, “he has a DNR order.”

The aide stopped, and the physician tried to herd the family out of the room. His daughters were crying, but his son was shouting.

“Do the CPR!” yelled the son. “Give him CPR! I’m his health care proxy! I’m telling you to do it!” Several nurses had to be called to help pull the son from the room. The physician tried to speak to him about the DNR order, but the son kept insisting that his father should be resuscitated. During this time, the patient died.

NEXT: The Lawsuit and The Takeaway