End of Life Considerations

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Baltimore, MD

Practice Areas: Medical Malpractice, Nursing Home

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Continued from Part One

Complications with Estate Plan Documents

Unfortunately, even with such documents completed by the patient, these documents and the patient's wishes do not always end up in the patient's medical record, and therefore, there is no guarantee that the patient's wishes will be carried out. Such a case was illustrated in a lawsuit filed against a hospital and several individual health care providers, including the nurse practitioner who was employed by the patient’s primary care physician. The patient’s daughter took the position that the patient was never a "Do Not Resuscitate" (DNR), however, prior paperwork filled out by the patient herself suggested otherwise. The hospital medical records were inconsistent with regard to an order for DNR, and after the patient’s death, the daughter brought suit, alleging that the various health care providers failed to do everything they could to save her mother’s life. With regard to the NP, the daughter alleged that she had a host of conversations with the NP, advising her that the mother suffered from early Alzheimer’s (this was not supported by the medical records) and therefore, she was not capable of making competent decisions about her own health care.

To make matters more complex, although the mother had at one time completed advance directives setting forth that she did want to be DNR, there was no copy of any such forms in the office chart or the hospital records. In fact, the patient’s daughter emphatically denied that her mother had ever completed such forms, and was convinced that her mother would not want to be a DNR. However, while hospitalized, the patient expressed her desire to be DNR. This was then entered into her chart in some places, however, there were other entries indicating that she did not wish to be DNR.

As the lawsuit was not filed until nearly three years after the patient’s death, the NP had only vague recollections of any discussions with the daughter, and the NP had not documented any of the alleged conversations either in the patient’s office chart or in the hospital chart. Therefore, at the time of her deposition, the NP was not able to affirmatively deny that any such conversations took place. Rather, she testified that she had vague recollection of the daughter expressing concern about her mother’s mental competency, however, there was no evidence in the medical record that the mother had any issues with mental competency. Rather, the mother suffered from ALS (i.e. amyotrophic lateral sclerosis), which is a form of motor neuron disease, and is a progressive, fatal, neurodegenerative disease caused by the degeneration of motor neurons, the nerve cells in the central nervous system that control voluntary muscle movement. One of the lessons learned by the NP in this case, as she saw the patient daily, as an employee of the primary care physician, was that if there is any question about a patient’s end of life preferences, the health care provider must clarify with the patient, if the patient is competent, to ensure that the appropriate forms are filled out and placed in the patient’s chart.

Following the lawsuit in this case, the hospital instituted an institution-wide policy making it mandatory for a “DNR form” to be placed under a plastic cover on the front of the patient’s chart. The form specifically set forth whether or not the patient was DNR, and was to be signed and dated by the patient or his or her health care surrogate. Additionally, the DNR form was copied in a very bright pink color, this making it obvious and clearly identifiable on the front of the patient’s chart.

If there is any question about the patient’s mental competency, a psychiatric assessment is essential. From a legal perspective, even when the patient has an advanced directive or has clearly said he or she does not wish to receive CPR (i.e. cardio-pulmonary resuscitation) in a life-threatening situation, CPR is mandatory for respiratory or cardiac arrest – unless the chart contains an attending physician’s DNR order.1 It is vital for nurse practitioners to help patients and families understand this, to provide information about the odds that the resuscitation efforts will succeed, to find out whether the patient or the designated surrogate wants a DNR order and, if so, to request the order from the primary care physician. Although noting a patient’s wishes in his or her medical chart is one way to document the patient’s wishes, the forms discussed herein may prove more useful or more desirable for the patient. Nurse Practitioners should familiarize themselves with relevant statutes in their own states with regard to documentation. This can be accomplished by consulting with legal counsel, the sate attorney general’s office, or the state medical society.

Advance Care Planning

The nurse practitioners who provided care to my father brought to my attention a more comprehensive solution, Advance Care Planning (ACP), which has been adopted by many hospices. ACP is a type of anticipatory guidance introduced early in the patient’s illness, involves both the family members and the patient.2 The idea is to improve communication and life care planning earlier in the lifespan of the patient. The hope is that health care providers would then become more experienced with balancing important health-related decisions, including those near the end of life. The communications are referred to as “life care conversations” during which the patient and family members working with the disciplinary team, discuss the likely course of the illness, and the benefits and drawbacks of available interventions. They work together to define the patient’s goals and choose the best means to attain them. An Advance Care Plan will take away the guess work from the patient’s future caregivers.3

The idea behind Advance Care Planning is the importance for patients to completely describe under what circumstances their goals for medical care should be changed from attempting to prolong life to being allowed to die. In some situations, certain treatments may not make sense because they will not help the patient, however, other treatments will be of important benefit. Patients should be encouraged to consider the following. First, when would it make sense to continue certain treatments in an effort to prolong life and seek recovery, second, when would it make sense to stop or withhold certain treatments and accept death when it comes, and third, under any circumstance, what kind of comfort care would the patient want, including medication, spiritual, and environmental options.3

The essence of Advance Care Planning is the process of coming to understand, reflect on, discuss and plan for a time when one cannot make his or her own decisions and he or she is unlikely to recover from the injury or illness. Effective planning is the best way to ensure that the patient’s view and wishes are respected by his or her loved ones and health care providers. The process will also provide comfort to those who ultimately make end-of-life decisions for the patient.3 In many instances, advance care planning is supported by a formal document, such as an advance directive, living will, or a durable power of attorney for health care. The process of advance care planning provides the patient with the opportunity to explore personal values, attitudes, and beliefs regarding health care, illness, and death. In addition, planning discussions may include the exploration of any cultural or ethnic variables that may impact the delivery of health care.4

The Nurse Practitioner should encourage patients to include advance care planning as an ongoing component of health care. Health care providers should return to the discussion routinely to explore any changes a patient may have in his or her wishes. There are many events, such as sudden illness, the illness or death of a loved one, and aging, that may lead to a change in a patient’s values, attitudes, and beliefs regarding health care.4

Although many believe that advance care planning is most beneficial in cases of unexpected illness or accident, it is equally valuable for the care of individuals who have a protracted terminal condition. A discussion of health care values and beliefs prior to the diagnosis of a terminal condition promotes further discussion and preparation after the diagnosis.4 In addition to a patient’s right to participate in the planning of his or her health care, advance care planning makes sound clinical sense. Advance care planning enables the patient to communicate his or her wishes to the physician, proxy, and other health care providers, thus, reducing patient uncertainty about “what the patient would want.” These discussions often alleviate fears that patients have about their future health care, particularly the fear of losing control of that care.

From the perspective of the nurse practitioner, an open, honest discussion with patients about their health care wishes will also lead to a sense of mutual respect. These vitally important discussions will likely lead to a better relationship with the patient. The appropriate and thorough communication with regard to the forms available to patients will enable all involved to have common expectations and understanding of the patient’s health care wishes.

End of live decisions are complicated for all involved. Nurse practitioners who provide care in these types of settings must be aware of the potential for medical malpractice claims arising from communication issues between the patient, the patient’s family, and the care giver. One cannot stress enough the importance of thorough documentation in the patient’s chart with regard to the patient’s decisions as to end of life decisions. In order to proceed cautiously and hope to avoid any such litigation, practitioners must address differing value judgments, expectations of the parties involved, and must at all times utilize resources of their work experience and educational resources to address all ethical and legal issues that may arise.


1. Walker, Robert M., Ethical Issues in End of Life Care, 1996. Available at: http://moffittcancercenter.com/moffittapps/ccj/v6n2/article4.htm. Accessed May 12, 2009.

2. NSO Risk Advisor for Nurse Practitioners, Volume 14, page 4, 2006. Available at: www.nso.com. Accessed May 19, 2009.

3. Gunderson Lutheran Medical Foundation, 2001. Available at: https://www.advancecareplan.com/acp/WhatIs.aspx. Accessed May 12, 2009.

Advance Care Planning, A Practical Guide for Physicians, American Medical Association, 2001. Available at: http://www.medem.com/medlib/article/ZZZB027EZLC