Human Exceptionalism

Forced DNR Coming to Texas?

Good grief! The state with the worst futile care law in the nation now has legislation pending that would enable doctors to place DNR (do not resuscitate) orders on a patients chart without notice or permissioneven if the patient is competent! From the text of S.B. 303:

Sec.A166.012. STATEMENT RELATING TO DO-NOT-RESUSCITATE ORDERS.

(c) Before placing a do-not-resuscitate (DNR) order in a patient ’s medical record, the physician or the facility ’s personnel shall make a reasonably diligent effort to contact or cause to be contacted the surrogate. The facility shall establish a policy regarding the notification required under this section. The policy may authorize the notification to be given verbally by a physician or facility personnel. (d)The DNR order takes effect at the time it is written in the patient ’s chart or otherwise placed in the patient ’s medical record. (e) If the patient or surrogate disagrees with the DNR order being placed in or removed from the medical record, the patient or surrogate may request a second opinion at the patient ’s or surrogate ’s expense

The notification requirement only applies to patients not expected to die within weeks or days. If the patient is expected to die imminently, the obligation to attempt notification and the right to a self-paid second opinion does not exist:

(f) Subsection (c) [the notification section quoted above] does not apply to a DNR order placed in the medical record of a patient:(1) whose death, based on reasonable medical judgment,is imminent despite attempted resuscitation; (2) for whom, based on reasonable medical judgment, resuscitation would be medically ineffective and there is insufficient time to contact the surrogate;…

Subsection (e) [right to obtain second opinion] does not apply to a DNR order placed in the medical record of a patient with respect to whom, based on reasonable medical judgment, death is expected in days to weeks and resuscitation would be medically ineffective.

What does “medically ineffective” mean? It isn’t defined. Moreover, it couldn’t be the same as “imminent despite attempted resuscitation,” or that language would have been repeated. Given the justifications for futile care arguments, this could reflect a judgment based on “quality of life” rather than the resuscitation being physiologically useless. 

Doctors who impose DNRs on charts without permission would be accorded extraordinary legal protection for their mistakes or unilateral inactions:

(i) A physician, health professional acting under the direction of a physician, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the appropriate licensing authority if the actor has complied with the procedures under this section

So, even if the physicians are negligent in their diagnoses, so long as they follow the procedure, they are home free?  This would mean that there would be no checks and balances in an issue of life and death!

SB 303 is part of a larger bill to reform Texas’s futile care law. I haven’t had a chance to review those parts yet. But we should not shift the burden of proof onto patients and surrogates when a doctor wants to place a DNR on the chart, and appeal–which would not always be available–on the patient’s or surrogates dime, money they may not have. 

There is an important principle at stake here. Such decisions should not be doctor’s to make unilaterally based on his or her own medical opinion or value judgment. If a doctor believe resuscitation would violate ethics or be harmful to the patient, the hospital should have the burden of proof and expense of obtaining court permission. And certainly, the patient or surrogate should be consulted first, or a guardian named to represent the patient if none can be found.  

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