In my experience as a Houston , Texas medical malpractice lawyer, I believe that the most shocking Texas laws that I share with clients is that doctors can enter a do not resuscitate (DNR) without the patient or family’s consent—or even knowledge.
Thanks to recent legislation, though, it will not be long before this practice will end.
Before discussing the current Texas DNR law, and how it is about to change, we should really talk about what a DNR order is in the first place. A do not resuscitate order is placed in a patient’s medical chart by a physician and instructs doctors and nurses not to provide life-saving measures if the patient stops breathing or has a heart attack, for example.
Pre-April 1, 2018 DNR law in Texas
Under current Texas law, a doctor can enter a DNR order into the patient’s medical records without notifying the patient or family member, let alone obtaining their consent or permission. This, of course, means that if something went wrong with the patient’s medical condition, doctors and nurses would not respond, as the patient and family member might expect.
In my opinion, current Texas DNR law provides a financial incentive for abuse by doctors and hospital personnel who can temporarily suspend their ethics and consciences. When you consider the unchecked authority that the current law gives to physicians, in the context of tort reform provisions under Texas law, the monetary temptation becomes clear. If a patient dies from malpractice, noneconomic damages are capped at $250,000 for all doctors combined and $250,000 for the hospital. If the patient is seriously injured from malpractice, but lives, then the healthcare providers could be responsible for substantially more economic damages, in the form of costly health care to take care of the patient.
I cannot even begin to count the number of cases that I have handled where a patient was seriously injured by medical malpractice and a DNR order mysteriously appeared in the patient’s medical records. Family members—and sometimes the patients themselves—were shocked when I pointed this out to them.
Texas DNR law effective April 1, 2018
On August 16, 2017, Texas Gov. Greg Abbott signed into law Senate Bill 11, which is entitled “Relating to general procedures and requirements for certain do-not-resuscitate orders; creating a criminal offense.” Senate Bill 11 is codified as Subchapter D of Texas Health & Safety Code Chapter 166 (Section 166.201 and following), and becomes effective on April 1, 2018.
Section 166.201 of the new law defines a “DNR order” as an order instructing a health care professional not to attempt cardiopulmonary resuscitation on a patient whose circulatory or respiratory function ceases. Section 166.202 specifies that the new law applies only to a DNR order issued in a health care facility or hospital—not an out-of-hospital DNR order.
Under the new law, the old practice of some doctors of secretly slipping a DNR order into the chart is gone. Instead, Section 166.203 defines mandatory procedures and requirements for do not resuscitate orders.
First, a DNR order is valid only if the patients attending physician issues and dates the order. This, alone, creates a new and, I think, significant protection for patients. The attending physician is the fully-trained physician responsible for the overall care the patient. In my experience as a medical malpractice attorney, I have encountered numerous situations when doctors who are not the attending physician, including those still in the residency or fellowship training, wrote DNR orders. According to this new statute, that practice must end.
Second, in order for a DNR order entered by an attending physician to be valid, it must also be consistent with these additional factors: (1) the written and dated directions of a patient who is competent at the time the patient wrote the directions; (2) the oral directions of a competent patient delivered to or observed by two competent adult witnesses, at least one of whom is not an employee of the attending physician or hospital; (3) the patient’s advanced directive; (4) the directions of a patient’s legal guardian or agent under a medical power of attorney; or (5) the procedure described in Section 166.039 for patients who are incompetent or otherwise mentally or physically incapable of communication, when the patient does not have a medical power of attorney (the attending physician may make a treatment decision in consultation with the patient’s spouse, reasonably available adult children, parents, or nearest living relative).
Third, the DNR order cannot be contrary to the directions of a patient who was competent at the time the patient conveyed the directions and, in the attending physician’s reasonable medical judgment, the patient’s death is imminent, regardless of the provision of cardiopulmonary resuscitation, and the DNR order is medically appropriate. This provision seems intended to respect to a patient’s own wishes to have the physician enter a DNR order.
Fourth, the DNR order takes effect as soon as it is issued, so long as the order is placed in the patient’s medical record as soon as practicable.
Fifth, before the DNR order is placed in the patient’s record, the physician, physician assistant, nurse, or other hospital representative must inform the patient. If the patient is incompetent, there must be a reasonably diligent effort to contact and inform the patient’s agent under a medical power of attorney or, if none, a relative of the patient (defined by Section 166.039(b) as the patient’s spouse, reasonably available adult children, parents, or nearest living relative).
Under the new law, what happens when there is a DNR conflict?
Until the new law becomes effective, on April 1, 2018, if a doctor and the patient or family disagree on whether there should be a DNR order, then, legally, the physician wins.
Under the new law, though, Section 166.206 defines a procedure to be followed when an attending physician or hospital disagrees with the patient’s instructions regarding a DNR order or providing cardiopulmonary resuscitation. In such an instance, the physician or hospital must inform the patient or, if necessary, appropriate family members or medical power of attorney agent, of the benefits and burdens of cardiopulmonary resuscitation. If, after such notification, there is still a disagreement, then the attending physician or hospital must “make a reasonable effort to transfer the patient” to another physician or hospital that is willing to comply with a DNR order or the patient’s instructions concerning the provision of cardiopulmonary resuscitation.
Significantly, the new statute is specific that while there is a DNR/resuscitation conflict between the patient and healthcare provider, then the attending physician and hospital staff must follow the patient’s wishes. This is a significant departure from many other Texas laws, which favor healthcare providers over patients.
New criminal and licensure enforcement
If a physician, physician assistant, nurse or other person intentionally conceals, cancels, effectuates, or falsifies“ a DNR order, or “intentionally conceals or withholds” personal knowledge of another person’s revocation of a DNR order in violation of the new law, then it is a Class A misdemeanor criminal offense.
In addition, healthcare providers are subject to review and disciplinary action by the appropriate licensing authorities if they intentionally failed to effectuate a DNR order, or issued a DNR order in violation of the new law.
Again, this statute is opposite of the 14-year trend in Texas for laws to place physician and hospital desires ahead of those of patients and their families.
We are here to help
The attorneys at Painter Law Firm, in Houston, Texas, are experienced in dealing with bungled DNR orders and medical malpractice issues involving hospitals, doctors, surgeons, anesthesiologists, and other healthcare providers. If you or a loved one has been seriously injured as a result of medical negligence, call us, at 281-580-8800, for a free consultation about your potential case.
Robert Painter is an attorney at Painter Law Firm PLLC, where he files medical malpractice and wrongful death lawsuits on behalf of patients and their families, against doctors and hospitals.