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Texas DNR orders: Mechanics, abuse, and medical malpractice

Do not resuscitate orders can be slipped into a medical record to cover up medical malpractice

Under a new law that went into effect in 2018, Texas law did a horrible job at protecting patients from renegade doctors and their “do not resuscitate” or DNR orders. Like any order in a hospital, a DNR order is signed by a physician and instructs healthcare providers not to start cardiopulmonary resuscitation (CPR) or other life-saving measures when a patient has a cardiac or respiratory arrest.

The stories of DNR abuse that we have heard first-hand from clients are horrific and heart-wrenching.

For instance, we represented the family of a teenager who developed a permanent brain injury because of poor hospital care. Her parents took her to a major children’s hospital in Houston’s Texas Medical Center because of a sinus infection that had caused an abscess (a wall pus or infected fluid that had accumulated) near the right frontal lobe of her brain.

As frightening as that sounds, a pediatric neurosurgeon explained to the patient and her family that she just needed a short procedure to drain the fluid. He said that after some antibiotic treatment she would be discharged home and back to school and her normal life.

The surgery went off without a hitch. It was in the following few days that things went terribly wrong. Her serum sodium levels—the amount of sodium in her blood—got dangerously low. That is a known complication of any surgery involving something abnormal, like an abscess, that occupies space inside the cranial cavity. In fact, the standard of care requires registered nurses and doctors caring for such patients to monitor serum sodium closely.

The nurses dropped the ball and didn’t inform the doctors of this young lady’s abnormal serum sodium levels, even though the hospital’s own laboratory reported flagged values as critically low. As a result, the physicians weren’t able to diagnose and treat her hyponatremia (critically low serum sodium). Eventually, her brain swelled to the point that it herniated, squeezing out the foramen magnum opening at the back of the skull, causing a permanent brain injury.

The attitude of the doctors and the nurses immediately changed. They pressured the parents to “let her go” and said that there’s no doubt that her daughter “wouldn’t want to live like that.” These are the tired old arguments that reek of a cover-up. When the parents wouldn’t give up on their daughter after a few weeks, the hospital threatened to convene an ethics committee—I call them death panels—to get the authority to pull the plug. Without food, water, and treatment, this young patient would die.

That’s when the parents called Painter Law Firm for help. I rushed to the hospital to meet with the parents and go over the medical records before the committee meeting. One of the first things I saw when thumbing through the records was a DNR order signed by a neurosurgery fellow—a doctor who still hadn’t completed his clinical training.

I asked the parents about it and they were shocked. They said that they had never authorized a DNR order in any way, shape, or form. I handwrote a document that my clients signed that detailed how they never authorized a DNR and insist on a full-code and CPR in the event that their daughter crashed. I handed it to the charge nurse and demanded that she put it in the medical records, which she did. With their scheme exposed, the hospital reversed course. We got the daughter transferred to another hospital and she was eventually discharged home to live the rest of her life with her family.

Current Texas DNR law

Texas Gov. Greg Abbott signed Senate Bill (SB) 11 into law on August 16, 2017. According to a statement from the Office of the Texas Governor, “This bill closes a loophole in state law that permitted doctors to place Do-Not Resuscitate Orders on patients without their consent.”

The legislation amended Texas Health & Safety Code Section 166.201, as follows:

• It applies to a DNR order issued in a hospital or health care facility.

• A DNR is only valid if it’s signed and dated by a patient’s attending physician, subject to other requirements. This alone is a significant change because it prohibits doctors who are still in their clinical training, including residents and fellows, from signing DNR orders.

• Generally, a DNR order must be issued in compliance with: (1) written and dated directions of a patient who was competent when writing and signing the advance directive; or (2) an oral directive of a competent patient delivered to or observed by two competent adult witnesses, at least one whom can’t be an employee of the hospital, health care facility, or attending physician; or (3) the directions of a patient’s legal guardian or agent acting under a proper medical power of attorney; or certain other situations defined by the statute.

• Alternatively, the attending physician may enter a DNR order if he or she reasonably believes that the patient’s death is imminent regardless of whether CPR is provided, provided that it wouldn’t conflict with the prior directions of a patient who was competent at the time the patient conveyed the directions.

• The statute also uncloaks the shroud of secrecy. It requires the physician or hospital representative to inform the patient of the DNR order’s issuance before placing it in the patient’s medical record. If the patient isn’t competent, the doctor or hospital must make a reasonable effort to contact the patient’s known medical power of attorney agent or legal guardian.

While the law still has room for improvement, including defining some key terms, we believe that this law is a welcomed change in favor of patient safety and rights. While clients still occasionally inform us of DNR abuse, this legislation has made many doctors gun shy about entering DNR orders against patient and family wishes.

If you or a loved one has been seriously injured because of poor, substandard health care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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