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In Perspective

April 1, 2004
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Liability Landscape Knowing When to Resuscitate by Linda Williams, RN
LIABILITYlandscape BY LINDA WILLIAMS, RN

Knowing when to resuscitate In 1997 the Health Care Financing Administration (HCFA) issued a statement to long-term care facilities that receive Medicare or Medicaid funds regarding "do not resuscitate" (DNR) policies. In the statement, HCFA warned facilities not to establish and implement a facility-wide DNR policy for its residents, as the right to formulate an advance directive applies to each individual resident, without condition. All certified facilities are required to inform residents of their right to formulate an advance directive. Either the resident or a designated surrogate decision-maker can choose a DNR status, if desired. According to standard-of-care laws in most states, a person is presumed to have consented to resuscitation in the absence of a DNR order.

Nursing staff members have a duty to honor a resident's advance directive. Failure to do so-such as resuscitating a resident who has a DNR order-could lead to a battery suit by the resident's family. A lawsuit also can emerge from the opposite scenario-not initiating resuscitation measures on a full-code resident-as the nursing home mentioned in the following case study found out. Please take the time to review the circumstances surrounding the following case, and make changes as appropriate at your facility.

The Situation
An elderly man was admitted to a nursing home because he could no longer care for himself at home. The man did not have an advance directive, so the social service coordinator asked him if he wanted to be resuscitated in the event that his heart stopped beating. The man responded that if that happened, he wanted everything medically necessary to be done to save his life. The coordinator helped him prepare an advance directive, and his chart was flagged so the nursing staff would know that his status was a "full code."

The following year, as a CNA entered the man's room to assist him with his daily care, she found him unresponsive with blood seeping from his mouth. She quickly called for a nurse, who summoned other staff members to retrieve the facility's crash cart and call an ambulance. As the nurse was preparing to administer oxygen to the resident, she could not find the correct tubing to fit the oxygen concentrator. As the staff frantically tried to find an alternative system to deliver oxygen, the resident remained motionless, with no spontaneous respirations or signs of life. When the paramedics arrived, they were surprised to find that cardiopulmonary resuscitation (CPR) had not been initiated. The resident was pronounced dead upon arrival at the hospital minutes later.

The Lawsuit
Several months after the incident, the man's son filed a lawsuit against the nursing home alleging the wrongful death of his father caused by a lack of emergency care and a suspected gastrointestinal (GI) bleed that the nursing staff had neglected. The basis for the lack of emergency care allegation was because of the nursing staff not initiating CPR, despite his father's directive, and an improperly equipped crash cart. The basis for the negligence involving a GI bleed allegation stemmed from a nurse's note, written nine days prior to the incident, that stated the man's "abdomen was firm, but no impaction." There were no other nurse's notes, except on the day of the incident. The son's demand to settle the case was $5 million.

The nursing home's defense attorney asked a physician to serve as an expert witness in the case and provide his opinion regarding the alleged GI bleed. The physician testified that the entry "firm abdomen," without any other evidence, was not proof of a GI bleed. He further stated there was no evidence the resident had actually died of a GI bleed. Upon record examination, the defense team was able to find an ADL sheet that stated the resident had normal bowel movements one and three days before the incident, implying no sign of obstruction or internal bleeding. A mediation was called for, and the parties agreed to settle the case for $1.65 million.

Protective Measures
The circumstances surrounding this situation are unfortunate. If CPR had been attempted, and the oxygen properly delivered, would it have changed the resident's outcome? Statistically speaking, the answer is probably not. But that doesn't negate a facility's responsibility to honor a resident's advance directive. To protect your facility from a similar crisis, review the following precautions:
  • Always ensure that crash carts (or similar storage units) are organized and equipped with all the resources needed to handle an emergency situation in your facility. Develop a checklist, perform audits, and test equipment routinely. Keep logs of these activities. Store the cart in a safe but easily accessible place. Store CPR masks/shields in accessible places as well, possibly in or near residents' rooms.
  • Provide an annual review and in-service staff meeting on the proper use of emergency equipment. Stage mock-emergency drills periodically.
  • Have administrative personnel familiarize themselves with their state's laws on advance directives, resuscitation decisions, and the determination of death. Some questions to explore are: Can a nurse pronounce a resident's death and, if so, under what circumstances? Can an advance directive to withhold resuscitation be honored if there is no physician order?
  • Develop nursing policies and procedures that outline which levels of staff members will initiate CPR (e.g. nurses, CNAs, etc.). Make sure the appropriate staff members are trained in CPR by a certified agency/trainer. Keep a record of the certification/expiration dates.

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