Medical Records and the Law

Special Documentation Concerns 289response to a relative’s request. 71 Although a nurse gave evidence thatthe patient was able to communicate coherently up to a few minutesbefore his death, the physician relied on the patient’s sister, who requestedthe DNR order. No efforts were made to resuscitate the patientwhen he stopped breathing. The court held that the patient shouldhave been consulted before the physician gave the DNR order. In addition,the court noted that a year prior to the incident, the patient hadsuffered from the same type of illness and recovered. Thus, there was agood possibility that the patient would have survived if there had beenconcerted resuscitation efforts.Moreover, a physician must explain the nature of the treatment to bewithheld from an incompetent patient before obtaining consent fromthe patient’s family or other representative.The representative of an incompetentpatient should be informed concerning the nature of thetreatment to be denied. It is worth noting, however, that a physiciantypically is not required to obtain court approval before entering aDNR order. 72 If a patient is a ward of the state, however, the physicianmay need to obtain court approval before entering a DNR order. 73Although some states have enacted statutes that prohibit the use ofDNR orders outside the hospital setting, at least 35 other states haveadvance directive legislation that either specifically permits emergencymedical personnel to honor certain out-of-hospital DNR orders orleaves open the opportunity for the state’s medical community to developstandards in this area. 74 In many of these states, statutes, regulations,or medical society standards provide that, if certain conditionsare met by physician and patient, DNRs in these situations will be recognizedand honored by emergency medical services (EMS) personnelresponding to calls for patients suffering cardiopulmonary arrest. InWisconsin, for example, a recently enacted statute allows certain indi-71Payne v. Marion General Hospital, 549 N.E. 2d 1043 (Ind. Ct. App. 1990).72See, e.g., In re Quinlan, cert. denied, Gavger v. New Jersey, 429 U.S. 922 (1976); In re Dinnerstein,380 N.E. 2d 134 (Mass. App. Ct. 1978). See also Severns v. Wilmington MedicalCenter, Inc., 421 A. 2d 1334 (Del. 1980) (authorizing DNR order, but failing to statewhether court authorization always is required); In re Jobes, 529 A. 2d 434, 449 (N.J.1988) (“judicial review of such decisions is not necessary or appropriate”).73See Custody of a Minor (No. 1), 434 N.E. 2d 601, 608 (Mass. 1982) (holding that“[a]bsent a loving family with whom physicians may consult regarding the entry of a ‘nocode’ order, this issue is best resolved by requiring a judicial determination”).74In some states, such standards are considered to be medical protocols appropriatelypromulgated by the medical community, rather than enacted by the state legislature.