On April 1, 2018, a new Texas law, S.B. 11, became effective governing in-facility Do-Not-Resuscitate (“DNR”) orders.  As defined, a DNR order instructs a health care professional not to attempt cardiopulmonary resuscitation on a patient whose circulatory or respiratory function ceases.  This article provides a brief overview of the new law, which, in short, makes it more onerous for physicians to issue valid DNR orders specifically in a health care facility or hospital.  

Valid DNR Orders

To be valid, the patient’s attending physician must date and issue the DNR order in compliance with one of the following:

1. An advance directive.  An attending physician may issue a DNR order in compliance with any written and dated directive or oral directive of a competent patient.  The oral directive must be witnessed by two competent adults, at least one of whom cannot be an employee of the attending physician or the facility.

2. The directions of a patient’s legal guardian or medical power of attorney (“POA”) agent.

3. A qualified treatment decision, if the patient does not have a directive and is incompetent.  In this situation, the attending physician may issue a DNR order in compliance with a treatment decision made by the attending physician and one other person as follows, in order of priority: the patient’s (1) legal guardian or medical POA agent; (2) spouse; (3) reasonably available adult children; (4) parents; (5) nearest living relative; or, if none of the above, (6) another physician not involved in the patient’s treatment or who is a representative of an ethics or medical committee.

4. The decision of the attending physician, subject to certain requirements.  The new law still permits the attending physician to issue a DNR order in the physician’s reasonable medical judgment.  However, for such an order under the new law, validity requires (1) the patient, when still competent, has not objected to a DNR order, and (2) the attending physician must decide that death is imminent regardless of CPR and the DNR order is medically appropriate.  The terms “imminent” and “medically appropriate” have not yet been further defined.

Notice Requirements

If the DNR order is issued solely by the attending physician’s decision, and before the order is placed in the patient’s medical record, the physician must give notice of the order’s issuance to the appropriate party.  Also, notice must be given to certain individuals if such individual arrives at the hospital or facility and notifies the patient’s medical team.  The latter notice requirement applies any time an in-facility DNR order is issued, but failure to provide such notice does not invalidate the order.

Any good faith effort to provide notice should be contemporaneously recorded in the patient’s medical record.

Revocation of DNR Order

A physician must revoke a DNR order if the underlying directive is effectively revoked by the patient or, if the patient is incompetent, by the patient’s legal guardian or medical POA agent.

Criminal Liability

Under the new law, a Class A Misdemeanor is committed if a person intentionally conceals, cancels, effectuates, or falsifies another person’s DNR order, or if the person intentionally conceals or withholds personal knowledge of another person’s revocation of a DNR in violation of the law.  Also, a physician is subject to professional discipline for issuing or failing to effectuate a DNR order in violation of the law.

If the attending physician does not wish to issue or comply with a DNR order, certain procedures must be followed that might ultimately lead to transferring the patient, but such procedures do not permit the physician to issue a DNR order that would otherwise be invalid.

Texas Health and Human Services Commission has been tasked with implementing rules to accompany this new law as soon as possible, so providers should be alert for regulatory updates in the near future.

Published in Houston Medical Times - May 2018.