WORDS MATTER

*Firehouse Legal blog posts provide information only, and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

The decision to terminate resuscitative efforts in the field is never an easy one.  When you couple the emotionally charged atmosphere of a patient being beyond your assistance with the (sometimes) unpredictable reactions from bystanders and family, tensions may run high.  If uncertainty exists as to the legal standing for terminating efforts, the situation may become more precarious, and impact solid decision making.  How can the EMS professional avoid mistakes in these circumstances?  The first step is to understand the different documents that may or may not apply, and what actions those documents might empower you to undertake. As you might expect in the world where law and medicine intersect, words matter a great deal.  On scene, providers may encounter the Do Not Resuscitate (DNR), Durable Power of Attorney (DPOA), Living Will, Medical Orders for Life-Sustaining Treatment (MOLST), or other documents that may be intended, or are being interpreted to, act as some form of advanced directive for termination of resuscitative efforts. While the specific title of a document may not be the end and beginning of its actual impact and application, there are instances where the document type, and the words utilized, matters a great deal to EMS providers.

The Missouri DNR:

A Missouri Out of Hospital Do-Not-Resuscitate Order (OHDNR) is exactly what the title implies—a DNR. These orders are designed specifically for the out of hospital provider1, (generally) come on a one-page specific state-approved form, and are titled “Out of Hospital Do Not Resuscitate Order.”  A properly executed Missouri OHDNR may be honored by personnel in the field2 (in accordance with local protocol), and it should be relatively obvious when you are holding one in your hand. 

While a DNR is a legal document, it is important to note that it is document executed between a patient and a physician, and rarely involves legal consultation or counsel. This means the document will not undergo legal review before or after execution.  To protect yourself (to the extent possible) in the field it will be important to review the document for completion when it is provided to you. Are the signatures of the patient (or patient representative) present and dated? Has the physician filled out and signed the “order” section? Has the DNR been expressly revoked, either on the form, or in another document?  Don’t forget that an alert and oriented patient in possession of decision-making capacity may also verbally revoke a DNR at any time3. If you have a complete, properly executed, non-revoked MO OHDNR in your hand then EMS should honor the document. Also keep in mind—a “Do Not Resuscitate” order is not a “Do Not Treat” order.  Honoring a valid DNR only extends to withholding CPR and other heroic methods in the event of cardiac arrest; it does not prevent any other supportive care or intervention appropriate for the patient’s condition4

The Living Will/Medical Directive:

EMS personnel are often handed a document in the field titled “Durable Power of Attorney” or “Living Will” by a family member or care facility employee, with an expectation that these documents will solve some problem or provide us guidance. Many times, they only muddy the waters, and if you do not know what you are looking at then the confusion is only compounded.

A DPOA is not a directive nor direction per se, but a document appointing another person to make decisions for the patient—or “principal”—in the document5. The key elements of a DPOA are an entire article unto themselves, but for our basic practice we will want to verify the decision making authority for medical purposes.  Absent specific directions in the DPOA, no decision making authority exists for the appointed decision maker to withhold or withdraw medical treatment for the patient, even if the document is titled as a DPOA for All Purposes6.

Many DPOA’s will contain a medical directive or Living Will provision within that provide the necessary specific authority for the appointed decision maker. These documents may also include direction for the withholding or withdrawing of specific treatments. While compliance with the directions of an appointed decision maker may be appropriate in these situations, for the purposes of EMS providers there is only one other instance where EMS may (with appropriate protocol) automatically withdraw or withhold treatment based solely on a living will/medical DPOA. This occurs when a directive is executed in compliance with the Missouri Death Prolonging Procedures Act (MDPPA)7.  The MDPPA compliant provisions are generally inserted into a medical power of attorney or other document, so you may have to search for them.

The MDPPA provides a mechanism for persons to state in writing the authority for medical providers to withhold or withdraw any or all life-prolonging measures, beyond just CPR. At a minimum, the document must be signed and dated, and may need to be witnessed, depending on circumstances8. As EMS reviews the provided documents in the field you should look for the following language, or something similar: 

By this declaration I express to my physician, family and friends my intent. If I should have a terminal condition it is my desire that my dying not be prolonged by administration of death-prolonging procedures. If my condition is terminal and I am unable to participate in decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw medical procedures that merely prolong the dying process and are not necessary to my comfort or to alleviate pain.”9

If language such as this is noted in a DPOA for Medical Care, Living Will, or other document, it will be important for EMS to revert to protocol, or in the absence of specific procedures, speak with medical control to plan appropriately to treat, or not, based on the circumstances and specific direction of the  patient’s written declaration. As with a DNR, a patient with decision making authority retains autonomy and may provide direction superseding the declaration, or revoke it entirely10.   

Takeaways

As in all things legal, words matter a great deal. While there are multiple documents that EMS may encounter in the field that impact our ability to withhold, withdraw, or modify treatment for patients, in Missouri the two most common methods that may empower medical providers to automatically terminate or withhold resuscitative efforts are a valid OHDNR, or executed advanced directive language compliant with the MDPPA.   Your authority to honor these documents should be included in your protocols, so work within your local protocol at all times, and utilize medical control when in doubt. Familiarize yourself with the documents, and the language within them, before you need to apply it on scene-you will be glad you did.

This article originally appeared in the Summer 2023 issue of Missouri EMS Connection.

References:
  1. RSMo 190.609.1.
  2. RSMo 190.612.1.
  3. Ibid.
  4. RSMo 190.606.2.
  5. RSMo 404.710.1; Miller v. Miller, 872 S.W.2d 654 (659) (Mo. App. 1994).
  6. RSMo 404.710.6 (10).
  7. RSMo 459.010.1-6; 459.025.
  8. RSMo 459.015.1(1)-(4).
  9. RSMo 459.015.3; Cruzan by Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988).
  10. RSMo 459.020.1.