Practice Tips

Perioperative care presents unique ethical and legal challenges, particularly when handling patients with existing Do Not Resuscitate (DNR) orders. Ensuring that these patients’ rights are upheld while balancing the necessity of surgical and anesthetic interventions requires an understanding of medical ethics, informed consent, and legal statutes. This practice tip outlines the key bioethical principles, background information on perioperative DNR management, and recommendations for mitigating risks.

Bioethical Principles: Decisions involving DNR orders in the perioperative setting are rooted in the four primary principles of bioethics:

1. Autonomy: Patients maintain control over their medical treatment, including the decision to uphold or suspend a DNR order during surgery.
2. Beneficence: Actions should promote the patient’s best interest, which may or may not involve a DNR to allow for potentially life-saving interventions during surgery.
3. Non-maleficence: Healthcare providers must avoid causing harm, including respecting a patient’s DNR status to prevent unwanted interventions.
4. Justice: Ensuring fairness in treatment and non-discriminatory care by respecting the patient's rights and decisions.

Background on Perioperative DNR Orders: DNR orders are often rescinded when patients undergo surgical interventions. This practice is based on the understanding that anesthesia and the procedure itself can compromise vital signs, necessitating the need for lifesaving interventions that could be prevented if a patient retained an active DNR during surgery.

While some argue that perioperative resuscitation is more effective compared to other settings, it remains crucial to engage in active discussions with patients about suspending their DNR for surgery. Professional organizations recommend incorporating this topic during the informed consent process to ensure patient understanding and agreement. The decision to suspend a DNR during surgery should be discussed and documented as part of the anesthesia consent process.

Legal Ramifications: The legal implications of disregarding a DNR or compromising patient autonomy include potential litigation. While malpractice cases specifically citing improper resuscitation are rare, risks remain. The greatest legal vulnerabilities occur when a patient’s wishes are unclear, and the team’s actions could be seen as contributing to patient harm or covering up errors.

Key recommendations for risk mitigation include:

• Obtaining explicit, documented consent regarding DNR suspension.
• Ensuring clear communication among the patient, family, and entire perioperative team.
• Properly disclosing any medical errors and documenting those steps.

Informed Consent: Informed consent is a comprehensive communication process influenced by federal, state, and case law, as well as ethical standards. The legally required elements of informed consent include:

1. Disclosure of the nature and purpose of the treatment.
2. Description of probable risks and benefits.
3. Explanation of risks and benefits of alternatives.
4. Discussion of the consequences of declining the treatment.
5. Opportunity for questions and assessment of understanding.
6. Assurance of a voluntary, coercion-free decision.

In cases where a patient’s capacity is uncertain, a psychological evaluation should be conducted.

Surgical and Anesthesia Consent: The anesthesia consent form typically includes a checkbox for rescinding DNR orders, unlike the surgical consent form. If this box is not checked, the signed consent defaults to allowing resuscitation. It is essential to address DNR status transparently during the consent process to prevent misunderstandings.

Emergency Exceptions: Emergency treatment can override standard consent protocols if it is necessary to address an urgent condition. Such actions must be well-documented, demonstrating that an emergency existed and precluded the possibility of obtaining an informed consent from the patient or their delegate, such as an immediate family member.

Key Legal Frameworks and Documents

• Federal Self-Determination Act (1990): This law mandates that healthcare facilities inform patients of their rights to make medical decisions, document whether an advance directive exists, and educate staff and patients about these directives.
• Advance Directives: These are legal documents expressing patient wishes for medical care. They can be changed last-minute and vary by state but often include living wills and durable power of attorney for healthcare. Advance directives typically do not specify CPR but allow patients to decline life-prolonging measures.
• DNR Orders: Governed by state laws, DNR orders require documentation and patient/family education. Hospital DNR orders must be reassessed at each admission. Out-of-hospital DNRs require specific forms, such as POLST, to be recognized by emergency services.

Organizational Policy and Law: Organizational policies should align with state and federal laws, and professional practice guidelines. The hierarchy of regulations is as follows:

1. Federal law
2. State law
3. Organizational policy
4. Standard of care

Best Practices for Risk Mitigation

1. Ensure comprehensive, documented informed consent, explicitly discussing DNR status.
2. Communicate clearly with the entire perioperative team regarding patient-specific wishes.
3. Adhere to disclosure protocols in the event of a medical error.
4. Engage in active discussions with patients/families about DNR status pre-operatively.

Navigating the ethical and legal dimensions of perioperative DNR orders requires informed decision-making, clear communication, and adherence to established bioethical principles. By fostering transparency and prioritizing patient autonomy, healthcare professionals can better manage the risks and complexities associated with perioperative care.

References

Loeb, A. E., Jia, S. Y., & Humbyrd, C. J. (2020). What should an anesthesiologist and surgeon do when they disagree about terms of perioperative DNR suspension? AMA Journal of Ethics, 22(4), E283–E290. https://doi: 10.1001/amajethics.2020.283

American Society of Anesthesiologists. (2023). Statement on ethical guidelines for the anesthesia care of patients with do-not-resuscitate orders. American Society of Anesthesiologists. Retrieved from https://www.asahq.org/standards-and-practice-parameters/statement-on-ethical-guidelines-for-the-anesthesia-care-of-patients-with-do-not-resuscitate-orders

Shapiro, M. E., & Singer, E. A. (2019). Perioperative advance directives: Do not resuscitate in the operating room. Surgical Clinics of North America, 99(5), 859–865.

Truog, R. (1991). “Do not resuscitate” orders during anesthesia and surgery. Anesthesiology, 74(3), 606–608.

U.S. Congress. (1991). Patient Self-Determination Act of 1990, H.R. 4449, 101st Cong., 2nd Sess. https://www.congress.gov/bill/101st-congress/house-bill/4449

Varkey, B. (2020). Principles of clinical ethics and their application to practice. Medical Principles and Practice, 30(1), 17–28.