Clearing up confusion on advance directives
■ Misinterpreting end-of-life documents can lead to unnecessary care for patients and create liability risks for physicians.
By Alicia Gallegos — Posted Oct. 29, 2012
The patient was near death when emergency physician Ferdinando Mirarchi, DO, was called into a hospital room by frantic medical staff. The man was in cardiac arrest and needed to be shocked with a defibrillator. But because he had a living will, the health professionals at his side were uncertain how to proceed.
“Everyone was standing around frozen, saying, ‘We’re not supposed to treat the patient,’ ” Dr. Mirarchi said. They “assumed they shouldn’t treat him. I came in and shocked the patient.”
The man survived. However, such misinterpretations of end-of-life documents too often result in lost lives or unwanted care, said Dr. Mirarchi, medical director of the Dept. of Emergency Medicine at UPMC Hamot Medical Center in Erie, Pa.
“There are times where we have seconds to minutes to act,” he said. “In those instances, when a document gets misinterpreted, someone lives or someone dies.”
Misunderstandings among physicians about living wills, advance directives and do-not-resuscitate orders are common, according to research and medical experts. A series of surveys by QuantiaMD, an online physician learning collaborative, found that nearly half of health professionals misunderstood the components of living wills. Ninety percent of those surveyed were physicians.
The survey findings provided characteristics of a patient who had a living will and asked respondents to identify the patient’s code status. Of about 10,000 respondents, 44% incorrectly identified the patient as having a DNR, and 16% did not know the code status. About 41% correctly identified the patient’s status as a full code.
The majority of survey respondents wrongly said patients with DNRs should receive significantly less medical care and interventions than designated by a such an order. A DNR means that a patient should not be resuscitated if found with no pulse. About 20% said they would defibrillate a patient who had a clear DNR order.
The data correlate with a May study in The Journal of Emergency Medicine, which found that 78% of physicians misinterpreted living wills as DNRs. The nationwide TRIAD III study, co-written by Dr. Mirarchi, analyzed 768 responses from medical residents and faculty at training institutions in 34 states. Among respondents, 74% of family physicians, 77% of internists and 80% of emergency physicians misinterpreted living wills as DNRs.
A study released in 2008 by the Pennsylvania Patient Safety Advisory found that nearly half of patient safety reports related to DNRs and living wills involved potential misunderstandings. The advisory, a state agency that examines and works to reduce medical errors, analyzed more than 200 patient safety reports from 2004 to 2008. About 20% of the reports involved patients receiving potentially unwanted interventions.
The research illustrates the confusion about advance directives and the need for solutions, said Nathan A. Kottkamp, a Virginia-based health care attorney and partner at McGuireWoods, LLP. Complicating matters are state laws that vary on what constitutes an advance directive and the differing legal requirements to create one, he said.
“Federal law says every patient is entitled to an advance directive, yet we have  states and D.C. that have different laws on how to do it, when it applies and what content is required,” Kottkamp said. “Patients get confused. Physicians get confused. We have this jumble of complexity, and that’s part of why we have this problem.”
Incorrect assumptions on advance directives
Advance directives are documents or legally recognized oral statements addressing health care choices when a patient is terminally ill or in a persistent vegetative state. A DNR is one form of an advance directive.
In some cases, however, physicians incorrectly assume that DNR means not to treat a patient who is critically ill, said Gina Mohr, MD, assistant professor of family medicine at Loma Linda University School of Medicine in California. In those instances, doctors may not send a patient to an intensive care unit, or they may limit care.
“There’s a lot of confusion over the term DNR,” she said. “Most people think they know what DNR means, but when you push them, you get a wide variety of answers.”
The living will, another directive, requires doctors to withdraw or withhold life-sustaining treatment if the patient is terminally ill or in a persistent vegetative state and no longer can communicate. Some directives name a power of attorney to speak for the patient.
The American Medical Association’s Code of Medical Ethics says life-sustaining treatments should provide medical benefits and respect a patient’s preferences, as communicated by the patient or a legally recognized surrogate. Treatments should be provided only with appropriate authorization from a patient, surrogate or court, the code states.
In most states, advance directives can’t be triggered unless two physicians determine that a patient is incapable of making medical decisions, Kottkamp said. States differ on what makes an advance directive legal. For instance, in Virginia, two adult witnesses are necessary to develop the order. North Carolina requires two witnesses, but they can’t be relatives. Whether doctors can act as witnesses varies, as does whether directives must be notarized.
What matters most about end-of-life documents is the language in the orders, Dr. Mirarchi said. The documents are triggered based on specific circumstances in the orders. For example, a patient may say he or she wants no mechanical respiration if terminally ill but ask that a feeding tube still be provided.
Confusing legal language can complicate interpretations of some orders, Dr. Mirarchi added.
A “core problem with living wills [is they are] created by attorneys but then interpreted by health care providers who have received little or no training on how to follow them,” he said.
How directives lead to lawsuits
Recent court cases demonstrate how misunderstanding a patient’s final wishes poses liability risks for physicians.
In June 2011, an Illinois appeals court ruled in favor of a family who claimed that a physician provided medical treatment against a patient’s wishes. Zarko Sekerez, who had a terminal form of leukemia, was admitted to Chicago-based Rush University Medical Center, complaining of dehydration and shingles.
Doctors learned he had bacterial pneumonia and later gave Sekerez a blood thinner to protect against a vein condition, according to court documents. After the first dose, Sekerez told staff he did not want blood thinners, and his refusal was entered in his chart. Yet subsequent doses were provided after the patient’s oxygen levels decreased, court records show. Sekerez later died at the hospital.
His family sued, claiming that medical staff provided the medication against the patient’s stated wishes. The hospital’s policy prohibits treatment unless authorized by patients, the plaintiffs said. Court records do not indicate whether Sekerez had an advance directive.
At trial, the defendants argued that a medical emergency existed, which overruled required consent. A jury found in favor of the hospital staff, but the Appellate Court of Illinois, 1st District, 4th Division overturned the verdict.
The evidence showed no reason for medical staff to have given medical treatment to the patient against his wishes, the court said. Judges ordered a retrial. The parties settled in 2012.
In a Florida case, 92-year-old Madeline Neumann was found unresponsive in her bed by nursing home staff. She was breathing, but staff could not obtain her vitals, according to court documents. The patient had a living will that indicated she wanted no life-prolonging treatments or resuscitative measures if she was in the process of dying.
Nursing home staff called paramedics, who revived the woman. Neumann died a few days later at the hospital. Her family sued the nursing home and its physician medical director for violating the patient’s wishes. A jury returned a verdict against the nursing home, but found the physician not liable.
Doctors also can be sued for not providing enough treatment. However, misinterpretations of advance directives often go unreported or are settled out of court, Kottkamp said.
Most states provide doctors with liability immunity if they attempt to follow an advance directive in good faith, he said. But this protection applies only if the documents are read accurately.
“There’s always the risk of medical malpractice,” he said. These are not cases “doctors want to hit a jury. There are plenty of cases that get settled that we don’t know about.”
Patients’ wishes for care
In recent years, a national initiative aimed at better translating a patient’s end-of-life goals has gained traction. Physician Orders for Life-Sustaining Treatment (POLST) is a process that transfers patients’ wishes for care into medical orders. The documents, which outline desired care, follow patients across care settings.
Frequently, wills are locked in drawers or safe deposit boxes and offer no help to patients when paramedics are called or hospital stays become necessary, Dr. Mohr said. With POLST, doctors and patients both sign the form, which goes into a patient’s chart, said Patricia Bomba, MD, New York state’s representative on the National POLST Paradigm Task Force, a multistate collaborative that works to facilitate POLST programs nationwide. She also is vice president and medical director of geriatrics at Excellus BlueCross BlueShield in Rochester, N.Y.
POLST copies accompany the patient if transferred or discharged, and the form is brightly colored so it’s easy to locate in medical charts or patients’ homes, Dr. Bomba said.
“It’s not just saying what the patient wants, but putting into place a process that ensures they get what they want,” she said.
POLST, called by different names in some areas, is approved in 15 states, and other states are working to implement the process, Dr. Bomba said.
Better education for residents and other doctors is key to improving understanding of advance directives, said Virginia Hood, MD, immediate past president of the American College of Physicians and former chair of the ACP’s Ethics Committee.
“It’s an issue you can’t just deal with once in medical school,” she said. “It’s something that needs to be reintroduced at various points of [doctors’] training.”
Primary care and other physicians also should encourage patients to discuss their end-of-life wishes before an emergency, Dr. Hood said.
To close the confusion gap on end-of-life documents, physicians must be proactive in learning what the orders mean and advocate for better protocols when they arise, Dr. Mirarchi said.
“There is such a hole here, and there has got to be some effort to plug this hole,” he said. “This is not just one area, it’s nationwide. Something needs to be done to get the word out to physicians.”