Reswcitation, 15 (1987) 289-297 Elsevier Scientific Publishers Ireland Ltd.

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LEGAL AND ETHICAL ASPECTS OF RESUSCITATION: AN ANNOTATED BIBLIOGRAPHY OF RECENT LITERATURE

MARSHALL B. KAPP

Department of Medicine in Society, Wright State University School of Medicine, P.O. Box 927, Dayton, OH 45401 KJ.S.A.I

(Received January 29th. 1987) (Accepted February llth, 1987)

INTRODUCTION

Whether or not resuscitation efforts should be initiated or continued for a person who suffers sudden cardiorespiratory arrest is, in the first instance, a medical decision. This decision depends on the physician’s professional appraisal of the likelihood, in a particular set of circumstances, of successfully restoring cardiorespiratory functioning to a particular patient, versus the probable futility of a resuscitative attempt.

Medical considerations, however, essential though they are, should be only the first step in the decision-making calculus. In addition, important legal and ethical (as well as financial) implications must be taken into account. The potential resuscitation situation raises fundamental ethical questions about patient autonomy (self-determination), beneficence (doing good for persons in need of help), non-maleficence (avoiding harm), and justice (the fair distribution of limited resources). Corresponding medicolegal issues present themselves concerning determination of mental competency, the decision- making rights of competent patients, and decisionmaking standards and processes for incompetent individuals. To complicate matters, these complex medical, legal, and ethical dilemmas generally must be resolved in an emergency context where the opportunity for thoughtful, thorough reflection is virtually non-existent and available resources are limited.

In the past decade, a burgeoning (in fact, almost overwhelming) professional literature has sought to address many of the legal and ethical aspects of resuscitation. In this annotated bibliography, thirty significant articles, editorials, and voluntary policy statements published in major medical or health policy journals in 1985 and 1986 that focus, either primarily or secondarily, on this subject are listed and summarized. Some of these sources are inconsistent with each other or even disagree with each other, both in terms of empirical findings and philosophical positions. Lack of unanimity is to be expected and indeed welcomed in an area as recent and controversial as this. It is hoped, however, that collecting and presenting

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these sources in one place will provide interested physicians with useful background references for beginning to grapple, ahead of time, in a thoughtful and reflective manner, with some of the difficult decisions that are confronted in resuscitation medicine every day.

CITATIONS AND SUMMARIES

Medical, moral, legal, and ethical aspects of resuscitation for the patient who will have minimal ability to function or ultimately survive American College of Emergency Physicians, Bioethics Committee ANNALS EMERG. MED., 14(9) (1985) 919-926.

This discussion paper is intended to be directly relevant to the emergency physician’s practice. It describes the sometimes competing social, ethical, legal, and financial influences that emergency physicians may feel when grappling with resuscitation situations. A decision-making strategy is suggested that emphasizes four factors: medical indications (especially prognosis), patient preferences, quality of life, and externalities (most importantly, family wishes). Good working relationships with other members of the emergency care team are stressed.

DO not resuscitate orders in nursing homes: the need for physicians to communicate and to document Beck, P. NORTH CAROLINA MED. J., 46f12) (1985) 633- 638.

The chairman of the North Carolina Medical Society Committee on Aging instructs physicians caring for nursing home patients to be involved in: (1) ascertaining the wishes of the patient and family with regard to treatment goals and outcomes, including their wishes about resuscitation in reaction to a life-threatening event; (2) documenting the patient’s or family’s wishes; (3) incorporating these wishes into a comprehensive care plan, including palliation and support, for the patient before, during, and between nursing home admissions. Even where resuscitation is rejected as part of the patient’s care plan, the physician must continue to be involved closely in the rest of that patient’s care.

Donot-resuscitate orders for critically ill patients in the hospital: how are they used and what is their impact? Bedell, S.E., Pelle, D., Maher, P.L. and Cleary, P.D. 256(2) (1986) 233- 23’7

This retrospective chart study evaluated four elements of compliance with an established Do Not Resuscitate (DNR) protocol in a large teaching hospital: (1) physician recordkeeping; (2) the involvement of patients, physicians, families, and nurses in the decisionmaking process; (3) the selection of patients designated DNR; (4) the effect of a DNR order on other aspects of patient care. One noteworthy finding was that, despite the hospital’s DNR policy that competent patients be involved maximally in decisionmaking, only a very small percentage of then- competent patients actually were consulted before a DNR order was entered for them (usually after they had become incompetent). Also, although the hospital policy specified that a DNR order carried no implications regarding other aspects of that patient’s care, many other types of support in fact were withheld or withdrawn from some patients following a DNR order. Letters concerning this article appear in J. AM. MED. ASSOC., 256(19) (1986) 2677.

Resuscitation: how do we decide. 7 A prospective study of physicians’ preferences and the clinical course of hospitalized patients Charlson, M.E., Sax, F.L., MacKenzie, C.R., Fields, S.D., Braham, R.L. and Douglas, R.G. J. AM. MED. ASSOC., 255(10) (1986) 1316-1322

This is a retrospective chart review of all patients admitted to a medical service in a university hospital during a one-month period. The patient’s age and the medical resident’s

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estimates of the patient’s long-term prognosis and ability to function were the three primary factors that correlated with medical residents’ intervention preferences for patients whose conditions deteriorated after admission. These authors reject as unrealistic the advice of many other writers on this subject that physicians should discuss resuscitation with all or most patients who may die, in favor of limiting discussion of the issue to patients whose hospital course is marked by a steady deterioration. Letters on this article appear in J. AM. MED. ASSOC. 256(8) (1986) 999- 1000.

Do not resuscitate: writing a no code policy Clayton, D. CAN. MED. ASSOC. J., 1330) (1985) 62-64.

This is a report of a DNR conference held in 1985 in Canada involving administrators, physicians, nurses, and attorneys. Canadian physicians have been reluctant to write DNR orders for perceived ethical and legal reasons. Conference participants tried to break down this reluctance, while emphasizing the safeguards of adequate communication and documentation.

Do not resuscitate: an issue for the elderly Ende, J. and Grodin, M.A. J. AM. GERIATR. SOC., 3401) (1986) 833-834.

This editorial accompanies the study by Schartz and Reilly cited below. Drawing a stark contrast between ethically ideal and actual clinical practice concerning resuscitation, these authors urge us to move beyond descriptive studies such as that by Schwartz and Reilly, and on to strategies for resolving some of the dilemmas of the DNR issue. Several modest suggestions are offered, including more and earlier attention to patient preferences, more objective gauges of quality of life (such as functional and health status measurements), disengagement of DNR orders and other aspects of care, flexibility in reviewing and modifying DNR orders, and the development of explicit hospital policies and procedures.

The do-not-resuscitate order in teaching hospitals Evans, A.L. and Brody, B.A. J. AM. MED. ASSOC., 25305) (1985) 2236-2239

A patient-specific questionnaire was distributed to senior level medical residents in three teaching hospitals that did not have formal DNR policies. The study found that the patient and/ or family were usually involved in decisions not to resuscitate, but rarely in decisions to resuscitate or in situations of no decision. In many cases, house staff would have entered DNR orders where attending physicians did not. Patients receiving DNR orders subsequently received a wide range of other types of care, from chemotherapy, surgery, and ICU admission to virtual neglect. The authors conclude that the DNR practice discovered in this study did not serve well the ethical ideals of patients autonomy and beneficence (good decision-making). Among the suggestions proposed are formal institutional DNR policies and protocols and greater participation by patient and family, as early in time as possible.

Cardiopulmonary resuscitation: values and decisions - a comparison of health care professionals Farber, N.J., Weiner, J.L., Boyer, E.G., Green, W.P., Diamond, M.P. and Copare, I.M. MED. CARE, 2302) (1985) 1391- 1398.

Using a questionnaire with theoretical clinical vignettes, the authors studied the effect of various biomedical, mental status, and psychosocial patient factors on the decision to initiate CPR by internal medicine house staff and registered nurses. Major differences in the likelihood to perform CPR were found where impaired mental status (dementia, mental retardation) and institutionalization in a nursing home caused medical residents to be significantly less likely to initiate CPR than nurses. The attitudes tested in this survey have substantial ethical implications.

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Cardiopulmonary resuscitation in the elderly: balancing technology with humanity Gordon, M. and Hurowitz, E. CAN. MED. ASSOC. J., 132(7) (1985) 743-744.

These geriatricians urge physicians to consider seriously, and to discuss with their older patients, the possibility of DNR orders in situations where the harm inflicted is likely to outweight any potential benefit. Recommendations of a recent report of the Law Reform Commission of Canada are mentioned.

Where are we going with “do not resuscitate” policies? Greenlaw, J. NY STATE J. MED., 86(12) (1986) 618-620.

In this editorial accompanying the article by Quill et al. cited below, the author (a nurse/ attorney) submits that, since resuscitation may or may not be an appropriate medical intervention for a particular patient depending on the circumstances, the same legal and ethical principles that guide other kinds of medical decision-making should apply to resuscitation choices, rather than some unique set of rules. Greenlaw rejects the idea of special DNR legislation proposed by the New York State Task Force on Life and the Law. She supports instead the development of institutional policies and procedures, as well as voluntary organizational statements, on the appropriate standards and mechanisms concerning DNR orders.

Letting go: DNR orders in prehospital care Haynes, B.E. and Niemann, J.T. J. AM. MED. ASSOC., 254(4) (1985) 532-533.

This editorial accompanies the article by Miles and Crimmins cited below. It endorses the policy described by Miles and Crimmins as one long needed in prehospital care, but also points out some potential problems in the application of this policy. These problems, all of which appear to be manageable with enough refinement, include differences among institutional written forms; ascertaining the authority of physician, family, or other proxies where the patient is not competent; timely ongoing review of DNR and Do Not Intubate (DNI) orders; avoidance of patient abandonment, in terms of comfort and other forms of care: and jurisdictional disputes in many prehospital systems.

Indications for DNR orders: a review Lipsky, M.S. RESIDENT AND STAFF PHYSICIAN, 32(10) (1986) 47-51.

This author reviews the medical literature on DNR orders from the perspective of a family practitioner. He identifies four possible indications for a physician’s decision against resuscitation: (1) futility of treatment, considered prearrest, during arrest, and postarrest; (2) poor future quality of life; (3) patient refusal; and (4) cost that exceeds the likely benefit.

Do-not-resuscitate decisions in a community hospital: incidence, implications, and outcomes Lipton, H.L. J. AM. MED. ASSOC., 256(g) (1986) 1164-1169.

This retrospecthw chart study of 333 patients receiving a DNR designation over a six-month period in a large non-teaching community hospital examined the relationship between a DNR designation and other types of care received by a patient during hospitalization. Although most

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institutional policies provide that a DNR order is fully compatible with other kinds of aggressive care, this study documents (as do numerous other studies) that a patient with a DNR designation is significantly less likely to receive expensive or invasive medical interventions than is another patient with the same morbidity or other characteristics. The author suggests that the DNR decision be one part of a comprehensive patient care plan individualizing treatment goals for patients.

‘Do not resuscitate’ decisions: a prospective study at three teaching hospitals Lo, B., Saika, G., Strull, W., Thomas, E. and Showstack, J. ARCH. INTERN. MED., 145(61(19851 1115-1117.

The authors prospectively studied over 3000 patient admissions to medical inservices, with 136 patients considered by their physicians as potential candidates for a DNR order. Futility of further medical treatment was by far the largest reason for physicians considering such an order, followed by patient refusal, poor quality of life, and cost. In a high proportion of cases, recommended guidelines on shared decision-making were followed, i.e., competent patients and families of incompetent patients willingly participated in the discussion and agreed with the medical judgment that CPR was inappropriate. Disagreements among participants in the decisionmaking process were quite rare but disturbing; the authors suggest the need for better ways to resolve such disagreements short of simply acquiescing to family demands.

Orders to limit emergency treatment for an ambulance service in a large metropolitan area Miles, S.H. and Crimmins, T.J. J. AM. MED. ASSOC., 254(4) (1985) 525-527.

This is a description of the history and substance of a written policy addressing the very important but overlooked problem of communicating DNR orders for nursing home residents who are being transported to an acute care hospital by ambulance. This policy was adopted by the regional (Minneapolis) body coordinating emergency medical care and endorsed by the county medical society. The policy contains provisions dealing with the writing and revision of DNR and DNI orders, nursing home policies, communication of orders, and respect for communicated DNR orders by paramedics and emergency physicians. The policy described here is a model that should be widely replicated, a process that has already begun in certain locations.

Limited treatment policies in long-term care facilities Miles, S.H. and Ryden, M.B. J. AM. GERIATR. SOC.. 33(10) (1985) 707-711.

The authors surveyed by mail a random sample of Minnesota long-term care facilities. They found that limited treatment plans and DNR orders are accepted by a substantial majority of these facilities, but administrative protocols for their use are much less common. Nursing home protocols emphasized enhancing a resident’s quality of life by providing for comfort, hygiene, and continued family relationships. However, nearly half of the comfort or supportive care protocols also said that this type of care was intended to allow death to occur or to curtail emergency treatment of acute life-threatening illness. Most protocols either prohibited resuscitation and hospitalization or required that these issues be specifically addressed in the medical orders. This study suggests that model policies could assist facilities in identifying proper decision-making principles as they develop procedural safeguards for limited care and DNR decisions, and that professional associations can play a central role in developing, disseminating, and encouraging the adoption of model policies.

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How do doctors discuss do-not-resuscitate orders? Miller, A. and Lo, B. WEST. J. MED., 143(21 (19851 256- 258.

To investigate how physicians explain the DNR option, the authors observed fifteen general internists simulate discussions about ‘do not resuscitate’ orders with a patient who has metastatic breast cancer. The authors observed a total lack of standardization in what the physicians revealed about the process and possible outcomes of CPR, the extent to which recommendations were put forward, and the extent to which patient preferences were solicited. Physician-participants gave different explanations for their own techniques. The authors do not offer specific recommendations for standardizing the process of communication, but do suggest simulated discussions as a valuable educational technique to improve the care of dying patients.

Do not resuscitate policies in midwestern hospitals: e five-state survey Mozdxierz, G.J. and Schlesinger, S.E. HEALTH SERV. RES., 20&l) (19861949-960.

A questionnaire was mailed in 1982 to 986 general acute care hospitals in Iowa, Illinois, Wisconsin, Indiana, and Michigan, with a 76% return rate. Institutional respondents reported that, at that time, over a third had formal DNR policies and another quarter were in the process of developing such policies. Larger hospitals with institutional ethics committees were most likely to have adopted DNR policies. The authors discuss the ethical underpinnings of DNR policies and the relevance of such policies for the national system of Veterans Administration hospitals.

Standards and guidelines for cardiopulmonary resuscitation (CPR) and emergency cardiac care (ECCl National Conference on Cardiopulmonary Resuscitation and Emergency Cardiac Care J. AM. MED. ASSOC., 255(211(198612905-2984

This is the product of a 1985 National Conference updating standards and guidelines on CPR and ECC first derived in 1974 and 1980. Part VIII is entitled Medicolegal Considerations and Recommendations (pp. 2979-29841, and addresses decisions to provide, withhold, or withdraw basic and advanced life support. DNR orders are discussed as a legitimate management option in appropriate circumstances. The concept of brain death as a reason to withhold resuscitation from a person is outlined. Professional and lay liability, particularly in light of Good Samaritan laws, is put into perspective. Also discussed are hospital responsibilities, the role of institutional ethics committees, and medicolegal considerations in the pediatric age group. The report concludes with recommendations for state legislation concerning the authority of allied health personnel, clarification of Good Samaritan protections, mandatory BLS training of front-line responders, and effective legal mechanisms for patient self-determination in life-and-death decision-making.

Statement on resuscitative intervention for patients who have suffered in-hospital cardiopulmonary arrest: the issue of do not resuscitate orders New York Academy of Medicine, Joint Committee on Care of the Terminally Ill BULL. NY ACAD. MED.. 61(61(19851599-603.

This policy statement recommends that state legislation and regulations be enacted specifically to clarify legal responsibilities and options concerning do-not-resuscitate orders, particularly regarding incompetent patients. The statement also urges individual hospitals to adopt clear, written DNR policies, and suggests the content of such policies. The statement also recommends public education about the availability and usefulness of legal devices for advance health care planning (e.g., living wills and durable powers of attorney).

Ethica at the end of life: practice1 principles for making resuscitation decisions Perkins, H.S. J. GEN. INTERN. MED., l(3) (19861170- 176.

Using a case example, the physician author elucidates ethical principles that should guide resuscitation decisions. Primary emphasis is placed on patient autonomy, that is, on the patient’s own assessment of benefit versus futility and the patient’s consequent wishes about resuscitation. Even for patients who are not currently competent, the “substituted judgment” principle frequently enables the physician and other proxy decisionmakers to arrive at resolutions consistent with the patient’s own values and preferences. In this respect, the usefulness of advance health care directives (e.g., living wills and durable powers of attorney) are promoted.

Resuscitation decisions Petty, T.L. CLIN. GERIATR. MED., 2(31(19861535- 545.

Ethical issues arise not just regarding basic CPR, but also regarding CPR’s likely clinical accompaniments and aftermath, including intubation, mechanical ventilation, artificial feeding and hydration, supplemental oxygen, electrolytes, and pharmacologic agents. Therefore, resuscitation involves not a single ethical decision, but a number of choices either bundled together or spread out over time. The author, based on more than twenty years experience in pulmonary medicine, presents four case examples illustrating how ethical principles can be reconciled with each other and applied to concrete resuscitation and non-resuscitation decisions.

The effect of a community hospital resuscitation policy on elderly patients Quill,T.E.,Stankaitis, J.A.andKrause, CR. NY STATE J. MED., 86(121(19861622-625.

This paper reports a retrospective chart review of the effects, in a 384-bed community teaching hospital, of a resuscitation policy with four choices for level of care. Study samples consisted of patients over 80 years old who were discharged with certain chronic diseases and patients over eighty who died in the hospital. The study found that the existence of the policy increased the number of attending physicians writing orders to limit resuscitation; since physicians were also now more likely to write limitations on the patient’s order sheet in addition to or instead of the progress notes, the limitations were more likely to be carried out. There still existed some confusion about physicians’ orders in some cases. Additionally, the authors found that the policy fostered the more appropriate use of the ICU for patients who wanted full critical care. The authors conclude that the existence of a resuscitation policy promotes physician/patient/family communication and patient self-determination, and advocate hospital development and implementation of DNR policies on ethical, legal, and clinical grounds.

The choice not to be resuscitated Schwartz, D.A. and Reilly, P. J. AM. GERIATR. SOC.. 34(111(19861 807-811.

This article reports on a combination prospective/retrospective chart review of the demographic characteristics of patients with DNR orders in a large, urban municipal hospital with an established DNR policy. The authors conclude that clinical prognostic indexes had the greatest influence on the resuscitative decision. They also found that entry of a DNR order had a discernible impact on other forms of care. For instance, despite a higher in-hospital mortality rate, DNR patients properly were not admitted to the ICU more frequently than the control group. Thus, entry of a DNR order arguably contributes to a more rational allocation of intensive care resources.

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Guidelines for discontinuing cardiopulmonary resuscitation in the emergency department after prehospital, nonparamedic-directed cardiac arrest Smith, J.P. and Bodai, B.I. WEST. J. MED., 143(31 (19851402-405.

This study analyzed 893 consecutive cases of prehospital resuscitation and concluded that the time from collapse to the initiation of CPR, the duration of active CPR, and the cardiac rhythm on arrival can all be valuable discriminatory variables for predicting successful resuscitation in the emergency department. Attention to these factors can distinguish patients who shouId have aggressive CPR continued in the emergency department from those who will not benefit from such action. Making decisions about the necessary allocation of scarce and expensive emergency medical resources using such factors should promote a more rational and just distribution of such resources.

‘Do not resuscitate’ orders: ensuring the patient’s participation Stephens, R.L. J. AM. MED. ASSOC., 255(21(19861240-241.

The author comments on the study by Youngner et al. cited below, and its troubling lack of clarity regarding the degree of patient participation in the resuscitation decision. As a strong proponent of patient autonomy, Dr. Stephens argues that all patients should have an opportunity to express their desire for or against resuscitation on routine admission to a hospital. Using the Kansas statute as the basis for discussion, he points out some of the shortcomings of present living will legislation for accomplishing that objective. A form devised for use in the University of Kansas oncology service to record patient preferences regarding resuscitation is presented.

Deciding against resuscitation: encouraging signs and potential dangers Veatch, R.M. J. AM. MED. ASSOC., 253(l) (1985177 - 78.

This editorial accompanies the article by Youngner et al. cited below. Veatch applauds that study for providing evidence that, in actual hospital practice; physicians recognize that, in certain circumstances, resuscitation may be an inappropriate intervention for some patients. He notes several potential concerns stimulated by the study. First, although resuscitative efforts are appropriately viewed as only one group of interventions available for patients, are there good reasons in particular cases for foregoing resuscitation while initiating or continuing other interventions? Second, while Veatch agrees that a patient need not. be imminently dying in order to be a proper candidate for withholding resuscitation, he believes that laws may need to be amended to recognize this view and the clinical practice reflecting it. Finally, the patient’s role in the resuscitation decision must be expanded significantly.

Doctor’s orders Veatch, R.M. J. AM. MED. ASSOC., 254(241(198513468.

This commentary does not deal with criteria for making resuscitation decisions, but rather with the language commonly employed to communicate a decision to forego resuscitative efforts. Philosopher Veatch argues that use of the term “orders” to communicate a DNR strategy is more appropriate to a previous, paternalistic model of the physician/patient relationship. In today’s climate of cooperative, participatory decision-making involving the physician and patient as partners, a new language for communicating the DNR choice (as well as other medical choices) must be developed.

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‘Do not resuscitate’ orders: incidence and implications in a medical intensive care unit Youngner, S.J., Lewandowski, W., McClish, D.K., Juknialis, B.W., Coulton, C. and Bartlett, E.T. J. AM. MED ASSOC., 253(l) (19851 54- 57.

The authors studied DNR decisions for 71 patients (out of 506 study patients) in the medical intensive care unit (MICUl of a lOOO-bed university hospital. Patient characteristics were examined, as was the impact of the DNR decision on subsequent resource consumption. Severity of illness (and therefore probability of survival) was the most important predictor of DNR designation, followed by age and prior health status. The DNR population consumed the greatest amount of resources before being designated DNR. Although levels of resource consumption dropped after DNR designation, they remained comparable with those of all non- DNR patients, including the seriously ill subgroup. The authors note that, while high levels of treatment following DNR designations are reassuring that patients were not medically abandoned, they raise the troubling ethical issues of overtreatment and waste of valuable resources. The authors suggest better documentation in the medical record concerning the intent and justification underlying a DNR order for a specific patient.

The use and implications of do not resuscitate orders in intensive care units Zimmerman, J.E., Knaus, W.A., Sharpe, SM., Anderson, A.S., Draper, E.A. and Wagner, D.P. J. AM. MED. ASSOC., 253(31 (19861 351-356.

This report describes the characteristics of 393 ICU patients with a written DNR order in 13 hospitals. It also examines the variations in order writing practices among different ICUs, and subsequent treatment decisions, hospital outcome, and ICU resource utilization following DNR orders. Patients with DNR orders were more severely ill, at a higher risk of death, and more likely to have severe chronic illnesses than other ICU admissions. For most of the patients studied, large amounts of medical resources were consumed ineffectively prior to entry of the DNR order, while resource consumption dropped markedly thereafter and death usually came shortly. This seems to imply that a DNR order is associated with the foregoing of other forms of aggressive therapeutic care. The authors conclude that DNR practice is occurring generally consistent with accepted ethical principles and guidelines, although more research and education needs to be conducted in this area. Letters in response to this article appear in J. AM. MED. ASSOC., 255(221 (1986) 3114-3115.