Three years ago, an unconscious, 70-year-old man in deteriorating condition was brought into Jackson Memorial Hospital in Miami. Doctors found he had a tattoo reading “Do Not Resuscitate” across his chest with the patient’s signature on his collarbone. The word “Not” was underlined.
The medical team wasn’t sure what to do. They first decided not to honor the DNR tattoo because of the principle of “not choosing an irreversible path when faced with uncertainty.”
The man was found to have an infection that had led to septic shock and organ failure. He was given intravenous fluids, antibiotics and blood pressure medicine to buy time while doctors considered the dilemma. A mask was used to help the patient breathe, but he was not put on a machine.
Florida law requires DNR orders to be printed on yellow paper and signed by a doctor. But when an ethics consultant weighed in, the hospital was advised not to intervene more. The patient died the next day.
A social worker was later able to track down the man’s legitimate DNR documentation.
Seema Mohapatra, Associate Professor at Indiana University Robert H. McKinney School of Law teaches about this very legal and ethical dilemma in her bioethics class.
“People have tattoos of their ex-girlfriend or ex-wife that they may have put on a long time ago and not have gotten it removed even though it’s not a current reflection of what they believe,’’she said. “So, it’s really difficult to gauge in emergency situations. It would really be hard for paramedics to just rely on a tattoo.”
While in the Miami incident, the patient did have a valid DNR, that was not the case with a 59-year-old man with “D.N.R.” tattooed across his chest. When he was admitted to a California hospital for planned surgery in 2012, doctors were able to ask the conscious patient if he had a valid DNR document beyond the tattoo. The patient said he did not, and most certainly would want attempts to resuscitate him. The tattoo was the result of a lost bet during a poker game years earlier.
The potential that the letters could simply be the initials of a loved one is another reason not to honor a DNR tattoo, said David Mittleman, an attorney at Grewal Law in Michigan and a Legal Examiner affiliate. His firm specializes in medical, dental, and pharmacy negligence cases.
He cited Michigan’s Do-Not-Resuscitate Procedure Act, which says a tattoo is not sufficient communication to withhold resuscitation
Not all states are so clear, however, and there’s always the need for more clarity, he added. What if a resident of another state with a DNR tattoo ends up unconscious and dying in a Michigan emergency room?
In the absence of additional DNR directives, doctors would still be bound to follow Michigan law, but to the disservice of the patient if those were his true wishes.
These scenarios, real and hypothetical, perhaps point to the need for some type of national database, Mittleman added.
For example, the Organ Procurement and Transplantation Network is a national database for the more than 200,000 people waiting for a transplant of various organs. Hospitals use the database to manage time-sensitive and life-critical cases on an hourly basis.
Without that, however, there are basic DNR notifications in place in most states.
Page, Wolfberg & Wirth, a Pennsylvania law firm focusing on representation of ambulance services, fire departments, hospitals and other EMS industry organizations, addresses DNR tattoos in a blog post on the firm’s website.
“The presence of a DNR tattoo is an indication that EMS needs to gather additional information. Might the patient have a terminal condition?
Does the patient have a valid DNR? Are there family or friends on scene that may know what the patient’s wishes are?” attorney Matthew Konya wrote. “If a patient does have a DNR tattoo, it should be an indication that EMS practitioners need to ask additional questions.”
The most universally accepted vehicles of DNR notification include cards, forms, necklaces and bracelets as well as a conversation with the patient or a healthcare surrogate, he said.
On the side of life
There are instances of legally binding DNR notifications not being sought or followed, Mohapatra said.
“In a lot of cases when DNRs are not respected there’s not a stick or penalty as much as you would think,” she said. “Often judges and juries will say: ‘Well, you sided on the side of life.’’’
Painful or debilitating conditions can occur as a result of being without oxygen and then resuscitated. Patients have sued hospitals, paramedics and physicians for not honoring their DNR.
“It’s based on a battery theory and malpractice. … There can be expensive care that needs to be taken and it’s possible the hospital or other providers have to pay for that,” Mohapatra said. “But in terms of policy, it’s hard for courts in many situations to say that a person would be better off dead even if that was their wish.”
Contact Katherine Snow Smith at Katherine@legalexaminer.com. Follow her on Twitter at @snowsmith.