What happens when an elderly man tells his clinician that he wants no “heroic measures” taken to prolong his life, but his family has other ideas? In this month’s case, a physician, a nurse, and the hospital that employs them all end up in court because of mixed messages. Whose instructions do you follow?

Ms. C was a nurse working in a mid-sized hospital in a suburban area. She’d been at the facility for more than two decades and was well respected at her job, particularly by the physicians with whom she worked. 

One morning, Dr. L, a pulmonologist and trusted colleague, had been summoned to the emergency department (ED).

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“Ms. C,” the physician said, pulling her over in the hallway. “I’d appreciate it if you would come with me to speak to this particular patient. The prognosis is poor and I want to make sure he understands his choices.”

Dr. L went on to explain patient’s medical history. Mr. B, aged 78 years, was a resident of a nursing home and had been brought to the ED due to shortness of breath. Mr. B had a long list of serious medical conditions, including a recent intracranial hemorrhage. 

“We ran a CT that showed massive and extensive blood clotting in Mr. B’s lungs, subsequently affecting the flow of blood to his left leg,” recounted Dr. L. “The scan also shows congestive heart failure. We can’t use blood thinners because of his history of intracranial bleeding, so the only option is surgical. The problem is that Mr. B’s is not a great candidate because of his poor general health. So, I’ve got to explain the options to him and his family.”

The two clinicians went to the patient’s room where Mr. B was breathing with some difficulty, but Ms. C noted that he was alert, able to talk, was oriented to place and time, and understood what was happening.

Dr. L gently explained the situation to the patient and his adult children, pointing out that blood thinners were not an option for Mr. B. The only option, said Dr. L, would be to surgically insert a filter in Mr. B’s groin.

“That’s really all we can do,” Dr. L told Mr. B and his family. “These blood clots are very large and can stop your heart. But there is also a good chance you won’t survive the operation. 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 straight, shook his head, and said, “No, I don’t want that. I’ll have the operation, but if something happens, just let me go.”

Ms. C looked at the stunned family.

“Do you know what’s happening?” she asked the family.

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

Dr. L wrote the following in the patient’s chart, and had Ms. C sign that she had witnessed this as well: “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.”

The procedure itself went well, and Mr. B was instructed to stay in bed for four hours as part of the recovery. At the end of that time, he wanted to use the restroom. A nurse’s aide was helping him walk there when he suddenly stopped breathing and collapsed. The aide began CPR and called code while the horrified family looked on.

Ms. C was in the hallway when she heard the code. She rushed to Mr. B’s room to find the aide performing CPR.

She instructed the aide to stop. “He has a DNR order.”

The aide stopped performing CPR, and Ms. C tried to get the family out of the room. Mr. B’s daughters were crying hysterically, and his son was shouting.

“Do the CPR!” yelled the son, frantically. “Give him CPR! I’m his health-care proxy! I’m telling you to do it!”

Ms. C had to call several nurses to pull the son out of the room. In the hallway, she saw Dr. L speaking to the son. The patient died, and Ms. C went home from her shift with an uneasy feeling that they had not seen the last of Mr. B’s son.

The family of Mr. B hired an attorney and ultimately sued Dr. L, Ms. C, and the hospital for the wrongful death of 
Mr. B. The case eventually proceeded to trial.

At trial, Mr. B’s children testified about the shock of witnessing their father’s death, and how they had begged the nurses to continue CPR. The son testified that he was the health-care proxy for his father, that his father had a living will created two years prior that stated Mr. B did want CPR in the event he needed it. 

Dr. L and Ms. C testified about their conversation with 
Mr. B, and how he’d clearly, and in front of his children, told them that he did not want to be resuscitated. The defense introduced medical experts who testified that Mr. B’s prognosis was grim, and that it was very unlikely that he would have left the hospital alive, even in the best of circumstances.

The jury deliberated only briefly before finding Dr. L, 
Ms. C, and the hospital not liable for the death of Mr. B.

Legal background

A living will, also called an advance health-care directive, is a set of written instructions in which a person specifies which actions should or should not be taken if he or she can no longer make his or her own health-care decisions.

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. 

Protecting yourself

Mr. B’s living will allowed for CPR and other measures when necessary. The document also appointed his son as his health-care proxy in the event he could no longer make decisions. However, this document was created two years prior to this event, and when presented with new information about the severity of his condition, Mr. B opted to decline heroic measures. 

While Dr. L and Ms. C could not protect themselves from this lawsuit, they did protect themselves from being found liable by carefully documenting the conversation with both the patient and his family, and by both signing off on it. In addition, it was clear to both practitioners (and they noted this in the file) that Mr. B was competent, and that his decision, to have a DNR order superseded the living will from two years earlier.

While Mr. B may have wanted heroic measures several years earlier, by the time he arrived at the hospital, he was already recovering from a stroke, suffering from congestive heart failure, and experiencing blood clots. It is understandable that with this new information, his wishes might have changed. 

As so many cases do, this one hinged on proper documentation. Without it, although the outcome might have been the same for Mr. B, it would certainly have been different for Dr. L, 
Ms. C, and the hospital. 

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.