Law & Medicine

Consent and DNR orders


Question: Paramedics brought an unconscious 70-year-old man to a Florida hospital emergency department. The patient had the words “Do Not Resuscitate” tattooed onto his chest. No one accompanied him, and he had no identifications on his person. His blood alcohol level was elevated, and a few hours after his arrival, he lapsed into severe metabolic acidosis and hypotensive shock. The treating team decided to enter a DNR order, and the patient died shortly thereafter without benefit of cardiopulmonary resuscitation.

Which of the following is best?

A. An ethics consult may suggest honoring the patient’s DNR wishes, as it is reasonable to infer that the tattoo expressed an authentic preference.

B. It has been said, but remains debatable, that tattoos might represent “permanent reminders of regretted decisions made while the person was intoxicated.”

C. An earlier case report in the literature cautioned that the tattooed expression of a DNR request did not reflect that particular patient’s current wishes.

D. If this patient’s Florida Department of Health out-of-hospital DNR order confirms his DNR preference, then it is appropriate to withhold resuscitation.

E. All are correct.

ANSWER: E. The above hypothetical situation is modified from a recent case report in the correspondence section of the New England Journal of Medicine.1 It can be read as offering a sharp and dramatic focus on the issue of consent surrounding decisions to withhold CPR.

In 1983, the President’s Commission for the Study of Ethical Problems in Medicine supported DNR protocols (“no code”) based on three value considerations: self-determination, well-being, and equity.2

A DNR order Daisy-Daisy/Thinkstock
A competent patient’s decision to forgo CPR is an example of self-determination or autonomy, which means that patients with mental capacity have the legal right to decide on medical interventions that are consistent with their values, even if their choices disagree with the wishes of family members or their physicians. Where a patient lacks capacity, a duly designated surrogate can legally make the medical decision on the patient’s behalf.

The physician is obligated to discuss with the patient or surrogate the procedure, risks, and benefits of CPR so that an informed choice can be made. DNR means that, in the event of a cardiac or respiratory arrest, no CPR efforts would be undertaken. DNR orders are not exclusive to the in-hospital setting, as some states, for example, Florida and Texas, have also enacted statutes that allow such orders to be valid outside the hospital.

Critics lament that problems – many surrounding the consent issue – continue to plague DNR orders.3 Discussions are often vague, and they may not meet the threshold of informed consent requirements, because they frequently omit risks and complications. A resident, rather than the attending physician, typically performs this important task. This is compounded by ill-timed discussions and wrong assumptions about patients’ preferences, which may in fact be ignored.4

Physicians sometimes extrapolate DNR orders to limit other treatments. Or, they perform CPR in contraindicated situations such as terminal illnesses, where death is expected, which amounts to “a positive violation of an individual’s right to die with dignity.” In some situations, physicians are known to override a patient’s DNR request.

Take the operating-room conundrum. There, the immediate availability of drugs, heightened skills, and in-place procedures significantly improve survival following a cardiopulmonary arrest. Studies show a 50% survival rate, versus 8%-14% elsewhere in the hospital. A Swedish study showed that 65% of the patients who had a cardiac arrest perioperatively were successfully resuscitated. When anesthesia caused the arrest, for example, esophageal intubation, disconnection from mechanical ventilation, or prolonged exposure to high concentrations of anesthetics, the recovery rate jumped to 92%.

Terminally ill patients typically disavow CPR when choosing a palliative course of action. However, surgery can be a part of palliation. In 1991, approximately 15% of patients with DNR orders had a surgical procedure, with most interventions targeting comfort and/or nursing care. When a terminally ill patient with a DNR order undergoes surgery, how should physicians deal with the patient’s no-code status, especially if an iatrogenic cardiac arrest should occur?

Because overriding a patient’s DNR wish violates the right of self-determination, a reasonable rule is to require the surgeon and/or anesthesiologist to discuss preoperatively the increased risk of a cardiac arrest during surgery, as well as the markedly improved chance of a successful resuscitation. The patient will then decide whether to retain his/her original DNR intent, or to suspend its execution in the perioperative period.5

What about iatrogenesis?

In 1999, David Casarett, MD, and Lainie F. Ross, MD, PhD, assessed whether physicians were more likely to override a DNR order if a hypothetical cardiac arrest was caused iatrogenically.6 Their survey revealed that 69% of physicians were very likely to do so. The authors suggested three explanations: 1) concern for malpractice litigation, 2) feelings of guilt or responsibility, and 3) the belief that patients do not consider the possibility of an iatrogenic cardiac arrest when they consent to a DNR order. Physicians may also believe a “properly negotiated DNR order does not apply to all foreseeable circumstances.”

However, some ethicists believe that an iatrogenic mishap does not make it permissible to override a patient’s prior refusal of treatment, because errors should not alter ethical obligations to respect a patient’s wishes to forgo treatment, including CPR.

Can a DNR order exist if it is against a patient’s wishes?7 In Gilgunn v. Massachusetts General Hospital, a 71-year-old diabetic woman with heart disease, breast cancer, and a hip fracture suffered two grand mal seizures and lapsed into a coma.8 Her daughter was the surrogate decision maker, and she made it clear that her mother always said she wanted everything done. After several weeks, the physicians decided that further treatment would be futile.

The chair of the ethics committee felt that the daughter’s opinion was not relevant because CPR was not a genuine therapeutic option and would be “medically contraindicated, inhumane, and unethical.” Accordingly, the attending physician entered a DNR order despite strong protest from the daughter. The patient died shortly thereafter without receiving CPR, and the daughter filed a negligence lawsuit against the hospital.

Dr. S.Y. Tan, emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu

Dr. S.Y. Tan

The defendant’s expert relied upon the position paper of the American Thoracic Society, which states that life support “can be limited without the consent of patient or surrogate when the intervention is judged to be futile.” At trial, the jury found that if competent, the patient would have wanted CPR and would have wanted ventilation until death. But it also found such treatment would be futile, and accordingly entered a verdict for the defense.

Still, there are state and federal statutes touching on DNR orders that warrant careful attention. For example, New York Public Health Law Section 2962, paragraph 1, states: “Every person admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate ...” This raises the question as to whether it is ever legally permissible in New York to enter a unilateral DNR order against the wishes of the patient.

And the federal “anti-dumping” law governing emergency treatment, widely known as EMTALA (Emergency Medical Treatment and Labor Act), requires all emergency departments to provide treatment necessary to prevent the material deterioration of the individual’s condition. This would always include the use of CPR unless specifically rejected by the patient or surrogate, as the law does not contain a “standard of care” or “futility” exception.9

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].


1. N Engl J Med. 2017 Nov 30;377(22):2192-3.

2. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining Treatment. Washington, DC: Government Printing Office, 1983.

3. J Gen Intern Med. 2011 Jul;26(7):791-7.

4. JAMA. 1995 Nov 22-29;274(20):1591-8.

5. Hawaii Med J. 2001 Mar;60(3):64-7.

6. N Engl J Med. 1997 Jun 26;336(26):1908-10.

7. Tan SY. Futility and DNR Orders. Internal Medicine News, March 21, 2014.

8. Gilgunn v. Mass. General Hosp. No. 92-4820 (Mass. Super Ct. Apr. 21, 1995).

9. In re Baby K, 16 F.3d 590 (4th Cir. 1994).

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