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DNR Orders: To Suspend the Order; to Limit or to Guide Resuscitation During Surgery

on Thursday, 28 March 2024 in Health Law Alert: Erin E. Busch, Editor

In 1990, Congress enacted the Patient Self-Determination Act (“the Act”), requiring that patients be informed of their rights under state law to consent to and refuse medical therapies on an informed basis.  This federal law focuses on the patient’s right to refuse treatment, including life-sustaining services, recognizing that there is no true informed consent unless the patient has the right to informed refusal. 

“Do-not-resuscitate” (“DNR”) orders generally reflect the patient’s desire to reject life-sustaining resuscitative procedures and their possible benefits based on the patient’s rejection of the possible burdens that might be associated with those procedures.  These “burdens” might be perceived harm from the resuscitative act (e.g., fractured ribs) or a reduction in physical or cognitive function occurring despite the success of the resuscitation.

In 1991, Dr. Robert Truog took the position that the suspension of DNR orders during surgery, which was standard practice at that time, was in violation of the Act.  This standard practice was increasingly viewed as paternalistic disregard for patient autonomy.  This perceived paternalism was perhaps rooted in the challenge of explaining how integral resuscitation was as a fairly common component of anesthesia practice.  One can see why it was easier historically to suspend all DNRs during surgery and avoid the difficulty in patient informed consent processes of differentiating between resuscitation as standard anesthesia practice as opposed to resuscitation in the event of spontaneous myocardial infarction.  Dr. Truog has stated: “every arrest that occurs under anesthesia must be considered the result of an intervention, and thereby potentially reversible, until proven otherwise.”  Accordingly, a DNR prepared prior to the proposal of surgery raises more questions than it provides direction after the patient is anesthetized. 

In the early 1990s, both the American Society of Anesthesiologists (“ASA”) and the American College of Surgeons (“ACS”) pronounced that the automatic suspension of DNR orders did not responsibly and ethically address the patient’s right to self-determination.  Both organizations called for reconsideration of existing DNR orders prior to surgery.  At this time, however, no significant detail was provided as to how the reconsideration should occur with the patient. 

ASA Guidelines published in 1993, anticipated either of two reconsidered decisions on the DNR order, that:  1. it be suspended during surgery and for a defined period post-surgery; or 2. consent to resuscitation be limited, identifying resuscitative procedures that were refused.  Commonly, the rejected procedures would consist of chest compressions, defibrillation, tracheal intubation, mechanical ventilation, fluid resuscitation, or cardiovascular drugs.   Consistent with this two-option approach, many hospitals developed consent forms documenting either suspension of the DNR order or allowing resuscitation with the exception of a checklist of what were perceived as the more aggressive and potentially harmful resuscitative procedures. 

In 1999, Dr. Truog and colleagues published new analysis based on a concern that refusal of a checklist of resuscitative procedures might oversimplify the needed reconsideration of a DNR order, and proposed a third informed consent option, described as a “goal-directed” approach. 

  1. Suspension of DNR; “Full Attempt at Resuscitation”

The patient or surrogate requests full suspension of the DNR order during surgery and the immediate post-surgery period.  In this manner there is consent to use any resuscitative procedures that may be appropriate to treat adverse clinical events that occur during this time.   This option is easily documented as a suspension of the DNR. 

  1. Limited Resuscitation Excluding Particular Procedures

The patient or surrogate may refuse certain resuscitation procedures in a checklist form of an informed consent template designed for reconsideration of DNR orders.  The anesthesia practitioner educates the patient or surrogate about the procedures essential to success of the planned method of anesthesia and the surgical procedure (e.g., intravenous fluids, or, in some cases, endotracheal intubation) and which procedures would not be essential and could be refused.   As indicated above, the informed consent template for this patient option would be focused on a list of the procedures that could be refused. 

  1. Limited Resuscitation Based on the Patient’s Values and Goals

The patient or surrogate could choose to trust the anesthesia practitioner and surgeon to use clinical judgment to determine which resuscitation procedures are appropriate under the circumstances in light of the patient’s stated values and clinical goals. For example, some patients may want full resuscitation procedures to be used to manage adverse clinical events believed to be quickly and easily reversible but to refrain from treatment for conditions that are not likely to be successful or that are likely to lead to new and unacceptable burdens for the patient.   The goal-directed option would require a narrative summarizing discussions with the patient or surrogate, outlining the patient’s goals that should guide the health care professionals in their treatment decisions during anesthesia.  This option is optimal when the surgical team has first-hand knowledge of the patient’s values and goals.  The subjectivity of exercising this judgement might be easier for a primary care practitioner with a longer history with the patient.  But the supporters of this option emphasize the need for first-hand discussions with the patient.  This option also would reasonably require a time commitment for discussion and coordination between the anesthesia practitioner and the surgeon. 

The American Society of Anesthesiologists incorporated all three options into a Statement on Ethical Guidelines for the Anesthesia of Patients with Do-Not-Resuscitate Orders in 2001, and reaffirmed the same Statement in October, 2023.  This reaffirmation might have been prompted in part by published studies noting the infrequency of documented reconsideration of DNR orders prior to surgery. 

Under all three of these options, the consent form and/or medical record should include a statement as to when the original DNR order will be reinstituted (generally when the patient leaves the post-anesthesia care unit or is no longer under the care of the anesthesia practitioner). 

Logically, there could be a fourth option, by which the patient or surrogate would insist that the DNR order remain fully in place.  However, no anesthesia practitioner is required to administer anesthesia subject to limitations that would constitute substandard anesthesia care.  That being the case, it is generally anticipated that for the surgery to go forward, some limitation of the DNR would be necessary. 

Hospitals are encouraged to work with their Medical Staffs to institute policies and procedures for reconsideration of DNR orders prior to surgery in a manner that supports the patient or surrogate’s understanding of the complex issues related to end-of-life decision-making in the face of the common risks of anesthesia care.    

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