Do-Not-Resuscitate Orders Vary Depending on Patient’s Location

Dear Mr. Premack: If a patient has an out-of-hospital DNR and is admitted to the hospital, does that out of hospital DNR stand as legal or does the hospital need to establish a new order? – J.S.

The initials DNR stand for “do not resuscitate”. When a person’s respiration and/or heartbeat has ceased, that person has a final right to refuse medical intervention. If that person has made prior legal arrangements, the arrangements prevent medical resuscitation. If that person has not made prior legal arrangements, then any medical provider has the legal right to presume the patient desires emergency life-saving intervention.

The Texas Health and Safety Code instructed the Texas Department of State Health Services to create a standard DNR form to be used by a person who is outside of a hospital (called an out-of-hospital DNR, or OOH DNR).

When a person has already been admitted to a hospital, a DNR can be ordered by the attending physician. There is no state-mandated form which the physician must use to issue the in-hospital DNR order. To enter such an order, the doctor must have informed consent from the patient or from the patient’s surrogate (an agent under a Medical Power of Attorney or Guardian of the Person).

While the patient is in the hospital, the doctor’s order takes priority over all previous orders, including the OOH DNR. This can be a bit deceptive, because the phrase “in the hospital” applies only after the patient is admitted to the hospital and placed into a hospital bed. The hospital emergency room and any hospital outpatient facility is still considered to be “out of hospital” so the OOH DNR still applies in the ambulance, in the emergency room and in any outpatient setting.

However, an OOH DNR is suspended after admission to inpatient hospital treatment. The doctor must then issue a new DNR order that applies to the inpatient, if the doctor has proper legal consent to issue the new DNR.

What if all goes well in the hospital so the patient recovers and is discharged? The patient’s prior OOH DNR continues to be legally valid after discharge. The patient is not required to execute a new OOH DNR form after every inpatient hospitalization.

Whether a person is ready for a DNR is a very personal choice, which should be made by the person him- or herself. However, not everyone gets around to making that decision, or to signing the legal paperwork. If the patient has not signed an OOH DNR, there are three circumstances under which it can still be issued for an incompetent patient:

  1. If the patient previously signed a Directive to Physicians, the doctor may rely on that Directive and issue an OOH DNR for the outpatient.
  2. If that Directive to Physicians appoints a proxy to make the choice for the patient, then that proxy may issue an OOH DRN for the outpatient.
  3. If the patient previously signed a Medical Power of Attorney, then the Agent may issue an OOH DNR for the outpatient. Having an Agent under a Medical Power of Attorney is the preferred method, because the Agent can make decisions for the patient whether the patient is an inpatient or is an outpatient.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, May 7, 2010

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