Living Will is Not a DNR
Late one evening, EMS was called to a Skilled Nursing Facility for Ms. B. She had been found unresponsive and without a pulse. The staff started CPR. The EMS crew arrived and they intubated her in order to establish an airway. She arrived at the Emergency Room and after several minutes of cardiopulmonary resuscitation (CPR), she was revived. After a brief stay in the hospital, she was able to be discharged back to the nursing home. Ms. B. had a living will on file at the nursing home.
When her daughter was informed of what transpired, she was very upset. Her mother ‘s living will stated her desire not to have her life prolonged using any artificial means of life prolonging procedures. However, her mother did not have a Do Not Resuscitate Order (DNR) signed by a physician declaring her condition to be terminal. In fact, she lived another 4 years and eventually died of natural causes. The living will was Ms. B.’s self determination of Advanced Directives, but was not a doctor’s order.
Why, her daughter asked, did the professional care givers ignore her mother’s advanced directives as set forth in the Living Will? There are many forms of advance directives, and the living will is just one of those directives. However, Florida law (765.304 Procedure for living will) requires a physician to make the determination of when a patient “has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.” The DNR order is an order by a licensed independent practicing physician once he/she has determined the patient has no hope of recovery. Ms. B was not terminal and obviously did recover. The simple answer: The living will is not a DNR order.
According to Florida Statute 765.101: “(17) “Terminal condition” means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.” At the time of the above incident, Ms. B was frail, suffering from diminished mental capacity, was on oxygen for chronic pulmonary disease, but was not considered by her treating physician to be “terminal”. She underwent cardiopulmonary resuscitation successfully and was revived.
In addition, according to Florida Statute 765.306: The attending physician “and at least one other consulting physician must separately examine the patient.” And, “the findings of each such examination must be documented in the patient’s medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.”
But the long answer is not so simple. The law makers explain the purpose of the Living Will in 765.102 Legislative findings and intent.— “(1) The Legislature finds that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. This right is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession.”
This is why it is so important to have your Living Will drawn up with very specific Advanced Directives. Florida law does not specify or require any particular format, but in order to avoid ambiguity and misunderstandings, it is advisable to have a healthcare attorney create your documentation with you, and that you make sure your physicians and care givers are included in the discussion. Don’t wait for that last minute call to EMS.