This column first appeared in the San Antonio Express News on July 31, 2017.
Senate Bill 11 was introduced on July 12, 2017 and passed by the Texas Senate on July 26. It has been sent to the Texas House for consideration. There is no existing statutory law relating specifically to DNR orders for inpatients at hospitals; rather, the current law deals only with Out-of-Hospital DNR orders for individuals who are not receiving inpatient care (that is, they are at home, at a doctor’s office, or even in an emergency room).
Historically, inpatient DNRs have always been handled as a private matter between the patient and the doctor. If requested by a patient (or the patient’s legal representative) the doctor can issue an inpatient DNR for the patient. If the patient later experiences cardiac and/or respiratory failure, the caregivers know to forgo resuscitation, since it was the patient’s desire to be allowed to die under those circumstances.
SB 11 would impose new rules on inpatient DNRs by adding new provisions to the Texas Health & Safety Code. It would regulate DNR orders in hospitals, in nursing homes, and in hospice.
If SB 11 becomes law, an inpatient DNR would be valid only if A) The inpatient DNR complies with the patient’s instructions, the patient is competent at that moment, and the instructions are in writing (or, if verbal, the instructions are witnessed by two qualified adult witnesses), or B) the patient has already issued a Directive to Physicians or one is authorized for the patient under existing law, or C) the patient’s Agent under a Medical Power of Attorney, or the patient’s court-appointed Guardian, consents to the inpatient DNR. Additionally, the doctor must determine that 1) the patient’s death is imminent, and 2) that the DNR order is medically appropriate.
The doctor would have a new duty to inform. After the doctor issues an inpatient DNR, if the patient’s spouse, adult child or parents arrive at the facility, they must be informed that the inpatient DNR was issued.
In the case of Methodist Hospital v. Frausto, an inpatient DNR was issued for a Mrs. Rimert. Her agent under Medical Power of Attorney consented to the DNR, and Rimert died in the hospital. Rimert’s sons sued, alleging Rimert was not competent back when she signed the Medical POA. The hospital said it was valid and legal on its face, and that the inpatient DNR was validly issued. The sons wanted mom to be kept alive, but the hospital followed its patient’s instructions. Ultimately, the jury decided unanimously that the hospital acted correctly, and the case was dismissed after various appeals failed.
This is reassuring to anyone who has executed similar legal documents in the hope of controlling their own final destiny. If SB 11 had been the law when Mrs. Rimert’s case occurred the sons may have had a weaker case to sue the hospital.
If SB 11 becomes law, people who already have signed Medical Powers of Attorneys and Directives to Physicians should double check the legal validity of those documents with their attorney. The doctor must honor written instructions that are already issued, but those instructions must be valid and legal. If your medical Advance Directives are old or outdated, now is a good time to see your attorney to reissue updated documents. If you do not already have Advance Directives, SB 11 reinforces that you should get Advance Directives as soon as you can meet with your attorney.
UPDATE: SB 11 did pass, was signed by the Governor, and became law on 8/16/2017 as part of the Texas Health and Safety Code.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.