Posts Tagged ‘DNR’

CPR Efforts May Have Violated Nursing Home Rights Law


Many of our clients have a visceral reaction to the idea that they might be “kept alive by machines” after they are no longer able to make health care decisions for themselves. That is why they sign “advance directives” like health care powers of attorney and living wills. The whole point of such documents is to convey the patient’s wishes about the type of treatment to be provided—or withheld.

Doris Lee had signed an advance directive before she was admitted to Riverview Care Center. The Louisiana woman had been very specific about what care she wanted. Her advance directive said, in part: “Do not use a respirator. Do not use dialysis. Do not use feeding tube. Do not use CPR.”

Late one night, aides at Riverview found Ms. Lee unresponsive and decided they needed help to revive her. They called 911, and emergency medical technicians responded. They did exactly what they are trained to do—they began CPR (cardiopulmonary resuscitation), administered chest compressions, placed a breathing tube and even a tube to deliver fluids. When Ms. Lee’s daughter arrived and demanded that the treatment be stopped, Ms. Lee was allowed to die without further intervention.

Ms. Lee’s daughters sued the nursing home for violating the instructions contained in Ms. Lee’s advance directives. The nursing home sought dismissal of the lawsuit, arguing that the question first had to be submitted to a medical review panel by state law.

The Louisiana Court of Appeals disagreed and ordered that the case proceed to trial. Ms. Lee’s daughters were not claiming medical malpractice, ruled the Court, but breach of contract and a violation of the Nursing Home Residents Bill of Rights. Terry v. Red River Center Corporation, December 10, 2003.

The significance of Ms. Lee’s case is subtle, but important. If her daughters’ claim was really a malpractice action, it would be judged by comparing the nursing home’s behavior to the prevailing standard of care among similar facilities. It would also be subject to special state procedural rules (similar to those adopted in Arizona) designed to make it harder for patients to successfully sue for malpractice.

If, however, the claim is based on contract principles or the rights contained in the Nursing Home Residents Bill of Rights, the questions become much simpler. Did the facility have a duty to follow Ms. Lee’s instructions? Did they know what those instructions were? And, finally, did they fail to honor her advance directives? Those are the questions to be posed at trial.

Arizona’s “Orange Form” Permits Withholding Of CPR

JUNE 5, 2000 VOLUME 7, NUMBER 49

Living wills and health care powers of attorney may take care of most of the end-of-life medical decisions you (or a loved one) will face. But for many patients the final medical decisions must be made outside of the hospital setting. Rather than doctors and nurses, the treatment team may consist entirely of paramedics (or emergency medical technicians—”EMTs”).

EMTs are well-trained, and save thousands of lives every year. The United States is lucky to have an extensive system for emergency care outside the hospital; in most medical emergencies in this country, the wait for an EMT will be a matter of minutes. But EMTs are not doctors, and do not have the luxury of time for thoughtful consideration of the medical history and wishes of the patient or family.

In practice that can translate into a very real dilemma. The terminally ill patient who wishes to avoid resuscitation efforts may have a difficult time ensuring that death can come peacefully. If an emergency call is made (to 911, for example), EMTs may be forced to attempt resuscitation and to transport the patient to the nearest hospital.

As a result of that dilemma, most states have adopted some formalized version of the physicians’ “Do Not Resuscitate” instruction (usually referred to as a “DNR” order). As of late 1999, all but seven of the states (Delaware, Iowa, Mississippi, Nebraska, North Dakota, Pennsylvania and Vermont) had state laws or administrative orders permitting non-hospital DNR orders in at least some specified circumstances.

Some states have developed forms for DNR orders, like the Physician’s Order on Life Sustaining Treatment (the “POLST” form) in Oregon, which are widely recognized and used. Massachusetts, as another example, has recently instructed EMTs to resuscitate patients unless they are presented with a “Comfort Care/DNR Order Verification Protocol Form.” In both of these examples, the form sanctioned by the government and utilized by EMTs is based on the physician’s instruction.

As usual, Arizona has taken a different approach. Rather than leaving the matter to the attending physician, Arizona law permits the individual to sign his or her own instruction to withhold resuscitation. The “Pre-hospital Medical Care Directive” must be in the precise form authorized by law, and must be on orange paper. Because of the color requirement it is commonly referred to as the “orange form.” Once a patient or health care agent has signed the form, EMTs are allowed to forego resuscitation. Arizona’s law on pre-hospital medical care directives can be found at Arizona Revised Statutes section 36-3251.

An important word of caution—most patients who are not terminally ill probably will not want to direct that resuscitation not be attempted. If you are in Arizona and wish to sign the “orange form” contact Fleming & Curti, P.L.C., and we will be happy to provide one at no charge.

“Wrongful Prolongation of Life” Suit Dismissed In Indiana

MAY 1, 2000 VOLUME 7, NUMBER 44

It has taken three decades to establish, but the notion of patient self-determination is now firmly entrenched in American law. A patient has the right to instruct that life-sustaining medical care be withheld or removed. To protect against future treatment, an individual can execute a living will and/or a health care power of attorney directing that care be withdrawn or withheld in future circumstances. But what happens when care providers treat the patient despite advance directives and against surrogates’ instructions?

Rebecca Jane Taylor was paralyzed on her left side and confined to a wheelchair after a stroke in 1992. She sought to prevent continued life support if she became terminally ill with no reasonable possibility of recovery. She gave her son Steven a health care power of attorney, and she even signed a form directing that a “do not resuscitate” order be placed on her chart at the Woodlands nursing home in Indiana.

In 1995, when Ms. Taylor suffered a second stroke and became comatose, her three sons met, discussed the situation and agreed. Steven Taylor signed the forms directing that his mother receive only intravenous fluids and that no tube feeding be instituted.

Two weeks later Ms. Taylor seemed to be responding to painful stimuli. Her attending physician directed that a nasogastric tube be inserted to provide both food and fluids, and the nursing home tried to contact Ms. Taylor’s sons.

Steven Taylor was at work that morning, and his wife promised he would get back to the nurse shortly. Rather than wait for Steven, the nurse called another one of Ms. Taylor’s sons, told him that his mother’s veins were collapsing and that she would die a terrible “dry death,” and got his consent. Shortly thereafter Steven Taylor contacted the nursing home and refused permission for the nasogastric tube. The attending physician decided he would break the apparent tie and instructed that the tube be inserted.

After Steven Taylor replaced the attending physician (and after the second physician increased Ms. Taylor’s tube feeding without informing family members), Ms. Taylor was moved to another facility. She died peacefully there ten days later, but five months after the Woodlands first violated Steven Taylor’s instructions as agent for his mother.

After her death Ms. Taylor’s estate brought a suit against the Woodlands for “wrongful prolongation of life.” The nursing home asked for dismissal of the suit, arguing that there is no such cause of action. The Indiana Court of Appeals agreed, insisting that Indiana law gave the Taylors their only remedy—they could have gone to court before their mother’s death to order the facility to comply with their instructions, but there was no claim for damages after her death. Estate of Taylor v. Muncie Medical Investors, April 20, 2000.

Generic Living Will May Not Prevent Life-Sustaining Care


In nearly every state, living wills and health care powers of attorney can effectively declare a patient’s wishes regarding medical treatment and authorize an agent to carry out those wishes. In some states, the two kinds of documents may be combined into a single form, and they may be known by different names (“health care proxy” or “statement of wishes regarding health care,” for example). The ability of patients to direct the kind of care they will receive or not receive is seldom at issue. What frequently leads to legal complications, however, is how the directives are to be interpreted, when they become effective, and who must abide by them.

A recent Maryland court case illustrates the kinds of problems encountered in the practical use of advance directives. Robert Lee Wright thought he had taken care of the whole advance directive issue. He had signed a living will in the form set out by Maryland law, and had named his mother as his health care agent. These steps were not taken lightly; Mr. Wright had recently been diagnosed as suffering from AIDS, and his health care was an important and pressing issue at the time.

In July, 1994, Mr. Wright was at Johns Hopkins Hospital for treatment of kidney problems. He expected to undergo a blood transfusion and then return home. Instead, immediately after the blood transfusion he suffered cardiac arrest; within ten minutes of his heart failure, hospital staff had performed CPR. Mr. Wright’s life was saved, but he remained comatose for two days. He had apparently suffered brain damage during the cardiac arrest, and after he awoke from the coma he could only moan and call for his mother. He died ten days after the administration of CPR.

Mr. Wright’s parents brought suit against Johns Hopkins Hospital, alleging that his living will had instructed that he not be treated aggressively, and that hospital staff should have sought her permission (pursuant to the health care power of attorney) before resuscitating him. The trial judge dismissed the complaint, and the parents appealed.

Maryland’s Court of Appeals agreed with the hospital and the lower court. Mrs. Wright testified that both she and her son understood the living will to mean that “in the event it came [his] time to go, [he] did not want any life-sustaining procedures performed on him,” but the Court noted that the forms he signed did not make such a broad statement.

Mr. Wright’s living will and health care power of attorney, provided by Maryland law as a form for easy use, required that two physicians certify that he was in a terminal condition and that his death was imminent. Since no doctors had yet certified Mr. Wright as terminally ill, his directives were not yet effective at the time he underwent the blood transfusion in the hospital.

Does an individual have a legal cause of action when the hospital (or physician) provides care in violation of the individual’s advance directive? Yes, the court ruled, there is such a cause of action. Because Mr. Wright relied on the formulaic directives provided by the statute, however, Mrs. Wright could not show that the hospital had acted incorrectly. Wright v. Johns Hopkins Hospital, April 20, 1999.

Arizona law also provides a form advance directive for the patient’s convenience. That form does not require physicians to certify that the patient is terminally ill, though a “terminal condition” is mentioned in more than one place. Nothing in Arizona law, however, limits the applicability of living wills or health care powers of attorney to terminal conditions. Just as in Maryland, a patient could make a broader statement of his or her wishes. As in all legal matters, it is important to carefully read the form and make sure it properly expresses your wishes.

Illinois Woman’s Death Does Not Give Rise To Family Claim

MARCH 17, 1997 VOLUME 4, NUMBER 37

Dorothy Ficke was admitted to an Evangelical Health Systems hospital in Illinois in March, 1993. Ms. Ficke was 81 years old and suffered from a recent stroke, and diabetes, arthritis, gout, hypertension, congestive heart failure, respiratory disease and depression.

Ms. Ficke had never signed a Living Will or Health Care Power of Attorney, but her hospital chart was marked Do Not Resuscitate by her physician, Dr. Jose Aruguete, a little more than a week after her admission. Ms. Ficke died soon after.

Claiming that they had not been told about Illinois’ law permitting surrogates to make health care decisions, and that they had been forced to stand by while Dr. Aruguete continued to aggressively treat their mother, Mrs. Ficke’s children Darlene, Thomas and Michael brought suit against Dr. Aruguete and the hospital. Their claim against the hospital asserted that hospital staffers knew that Ms. Ficke lacked capacity and that the hospital took no steps to determine whether family members could make health care decisions for her; they also argued that the hospital failed to tell them they had the power to make decisions regarding her care.

The Illinois trial court judge dismissed the Ficke children’s suit against the hospital, and they appealed. The Illinois Court of Appeals has now agreed that the children have no lawsuit against the hospital.

Illinois’ law is similar to Arizona’s surrogate decision-making law. It provides that, where a patient is terminally ill, permanently unconscious, or suffering from an incurable or irreversible illness, family members may make decisions regarding health care even if the patient has not signed an advance directive. [Ed. note: Arizona law permits the family member to make any decision except a decision to withhold or withdraw food or fluids]

The Court of Appeals decided that any fault in Ms. Ficke’s case could not be assigned to the hospital. Although the hospital has a duty to determine whether surrogates are available to act, it must do so only after the terminal condition, permanent unconsciousness or incurable or irreversible condition has been certified. “[I]t is for the attending physician, not the hospital or its staff,” said the Court, “to determine whether the Act applies to a particular patient.” In other words, any claim the family may have must be against Dr. Aruguete.

Furthermore, the Court found that family members do not have a cause of action for their own suffering from having to watch the treatment and, ultimately, the death of their mother. While their mother’s estate might have a claim against Dr. Aruguete, the law does not provide protection for family members; to do so, said the Court, would leave open the question of whether only close family members might make claims, or only those family members who truly “cared about” the decedent.

Although not a model of linguistic clarity, the Court acknowledged that “the death of a parent is indeed an event occasioned by the continued suffering or grieving of the decedent’s family.” Suffering and grieving, however, do not give rise to a legal claim. One member of the three-judge court disagreed with the majority, arguing that the family members should have a cause of action against the hospital because the facility knew (or should have known) that Ms. Ficke was in fact covered by the surrogate law, whether or not her physician filled out the requisite form certifying her condition. Ficke v. Evangelical Health Systems, Illinois Court of Appeals, December 13, 1996.

Although Arizona law is similar in some respects, it is not clear whether the same result would be reached in similar facts. Absent special circumstances, facilities are well-advised to consider the wishes of family members regarding cessation of life-sustaining treatment.

Lifetime Transfers By Elderly Patient Upheld After Death


Stories about relatives and friends taking advantage of the elderly are widespread. Several cases reported in Elder Law Issues involve courts setting aside transfers by vulnerable adults to caregivers, family members or others. But what about the capable adult who, though elderly, truly wishes to make a gift?

Ohioan Harold Hawkins was diagnosed as suffering from Parkinson’s disease ten years before his wife’s death in 1991. After her death, Minnie Nash and her husband Ples, friends of the Hawkins’, moved in with Mr. Hawkins to help take care of him.

Nearly from the beginning, Hawkins and the Nashes had an understanding about the assistance. Mr. Hawkins would provide a home for the three of them, Mr. and Mrs. Nash would provide care for Mr. Hawkins and necessary upkeep and repairs, and Mr. Hawkins would transfer his interest in the property to the Nashes. In March, 1992, Mr. Hawkins signed a power of attorney naming Mrs. Nash as his agent, and a month later he quit-claimed his home to the Nashes. At about the same time, he also changed the beneficiary on his VA life insurance to name the Nashes.

Mr. Hawkins died a little more than a year later. His sister, Clover Elliott, brought an action to set aside the transfers and to recover the property and VA insurance benefits.

Many cases establish the principle that such transfers are suspect, based on the “confidential relationship” between Mr. Hawkins and Mrs. Nash. In this case the trial judge acknowledged that the Nashes had the burden of proving the transfers valid. Still, the court noted that they could show Mr. Hawkins knew what he wanted to do and acted out of his own volition.

At trial, the Nashes introduced evidence that Mr. Hawkins was lucid and alert right up until his death. The trial judge ruled (and the Court of Appeals later agreed) that the Nashes had shown “competent and credible evidence showing the quit-claim deed and the VA Change of Beneficiary Form were executed pursuant to decedent’s declarations and wishes.” The Nashes prevailed, and Mr. Hawkins’ wishes were upheld. Elliott v. Hawkins, Ohio Court of Appeals, December 28, 1995.

Perspectives on Death and Dying

According to a recent article in the Journal of the American Medical Association, different ethnic groups may have distinctly different views of medical care issues at the end of life. The article reports on a University of Southern California of 800 elderly patients.

Study results indicate that immigrants from South Korea and Mexico are particularly likely to differ from the more common views of European-Americans and African-Americans. While the latter groups (and the legal system) focus on a patient self-determination model, the immigrant groups were much more likely to rely on family consensus and less inclined to permit patients to make their own decisions.

A second study reports on Do Not Resuscitate orders among terminally ill AIDS patients. Perhaps surprisingly, the study reveals that about 2/3 of such patients would want to be resuscitated. About half of even those who rated their own prognosis as poor wanted resuscitation.

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