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

The Lawsuit

Several months later, the physician was notified that he was being sued for the wrongful death of this patient. The physician met with the defense attorney provided by his insurance company and explained what had happened. The attorney felt the case was strong and no settlement offer was made to the plaintiffs.

The case eventually went to trial. At the trial, the patient’s children testified about the horror of witnessing their father’s death, and how they had unsuccessfully begged the nurses to continue CPR. His son testified that he was his father’s healthcare proxy, that his father had a living will that had been created 2 years prior, and that the living will stated that he wanted CPR and other measures should he need them.

The physician testified about his conversation with the patient, and how the patient had clearly, in front of his children, stated that he did not want to be resuscitated. The defense also introduced medical experts who testified that his prognosis was poor, and that it was very unlikely he would have left the hospital alive even in the best of circumstances.

After a very brief deliberation, the jury found no liability on the part of the physician.

The Takeaway

A living will, also called an advance health care directive, is a set of written instructions by a person specifying what actions should or should not be taken if that person can no longer make health care decisions for themselves. Some of these documents set out specifically what treatments the patient wants or doesn’t want, and what measures health care practitioners should take if there is an emergency. Some of these documents appoint a third person as the health care proxy, and that person is authorized to make decisions on behalf of the patient, in the event that the patient becomes incapacitated.

In this case, the patient had a living will which allowed for CPR and other life-saving measures when necessary. The document appointed the son as his health care proxy in the event he could no longer make decisions. However, this document was 2 years old at the time when he came to the emergency department. When presented with new information about the severity of his health, he opted to change his mind from his original living will and to decline heroic measures.

People change their minds, especially given new information. While the patient may have wanted heroic measures a few years earlier, by the time he arrived in the emergency department he was already recovering from a stroke and had congestive heart failure and blood clots. It is understandable that under the new circumstances he would have had a change of heart.

Bottom Line — The physician was able to protect himself from liability by carefully documenting the conversation he’d had with the patient and his family. It was clear to the physician, and was noted in the file, that the patient was competent to understand his situation and to make a decision. That decision, to create a DNR order, superseded the two-year old living will.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.