Code Blue, Not: The New In-hospital DNR Order

Let’s chat about a relatively new law that hospitals, doctors, and patients are struggling with:  an in-hospital DNR order.

Simply stated, it means no Code Blue on a dying patient.

Being a bit more precise, an in-hospital DNR order is a doctor’s order instructing a health care professional not to undertake cardiopulmonary resuscitation on a hospital or healthcare facility patient.  That essentially means that a doctor can order, in advance, that a patient in the hospital whose circulatory or respiratory function ceases should be allowed to die without any attempt to resuscitate.

The law, which went into effect April 1, 2018, is tricky for doctors because they could be subject to civil, criminal and administrative liability if they don’t comply with its requirements.  It is tricky for patients because they might not fully realize that a DNR order is essentially a death warrant.  It is especially tricky for patients’ families who might not even know that such a DNR order has been issued for their loved ones.

So what is necessary for a valid DNR order?  It must be issued by the patient’s attending physician and be dated. It must comply with instructions given by the patient if competent, or the patient’s medical agent, relative or guardian if the patient is not competent.

If no instructions are given, then the doctor can issue a DNR order if, in his reasonable medical judgment, the patient is going to die shortly and the DRN order is medically appropriate.

That last part, where the doctor issues a DNR order without any instructions, sounds suspiciously like a secret “kill” order.  To counteract that impression, the law contains some notice requirements.   Someone acting on behalf of the healthcare facility is supposed to tell the patient about the DNR order.  If the patient is incompetent, then the facility personnel must make a “reasonable effort” to contact one of the following, in sequence:  the medical power of attorney agent, the guardian, the spouse, the adult children, the parents or the nearest living relative.

A DNR order takes effect immediately upon being issued.  A copy is supposed to be placed in the patient’s medical record as soon as practicable.

Once given, the DNR order can only be revoked by a physician providing direct care to the patient.   The physician is required to revoke the DNR order if the patient revokes his advance directive or revokes his consent to the order.

If the patient is not competent, then his agent or guardian can revoke consent.

So how do you, as a patient, handle this new law?  Give the hospital your written advance directive and medical power of attorney, and a list, with contact numbers, of your medical power of attorney agent and your family members.  Have your agent or family regularly talk to the physician, physician assistant or nurse providing you direct care.  Read the required disclosures given to you by the hospital.

You can also read Subchapter E of Chapter 166, Texas Health & Safety Code.

Virginia Hammerle, with Hammerle Finley Law Firm, is board certified in Civil Trial Law by the Texas Board of Legal Specialization.  See hammerle.com for her blog and newsletter sign-up.