Doris Lee lived at Riverview Care Center, a nursing home in suburban Shreveport, Louisiana. She had taken steps to prevent her resuscitation in the event of death, but when the staff found her unresponsive they called 911. Ms. Lee was whisked off to a local hospital, and the emergency medical technicians managed to resuscitate her while en route. Hospital staff then found her advance directives, discontinued resuscitative efforts, and allowed her to die naturally a few hours later.

Ms. Lee’s two daughters sued the nursing home, alleging that it had violated their mother’s express instructions not to administer resuscitation. They relied on three separate documents signed in 1996, 2001 and 2002. The Louisiana Court of Appeals found that all three were defective under state law.

The 1996 form was not signed by two physicians, as required by the state’s advance directive statute. The 2001 form simultaneously instructed that Ms. Lee should be transported to the Intensive Care Unit but that resuscitation should be withheld, and the trial court had ruled that its terms were internally contradictory. While the appellate court did not agree, it ruled that there was no evidence that the 2001 form had been in Ms. Lee’s medical chart at the nursing home anyway. The third form, signed in 2002 by one of Ms. Lee’s daughters, did not indicate any authority for her daughter to sign on her behalf.

Because the forms did not comply with state advance directive laws, ruled the court, Ms. Lee’s daughters could not make a case against the nursing home for failure to follow her directions. Furthermore, the mere act of calling 911 would not amount to "heroic measures," especially since Ms. Lee had experienced "several close calls with death, but had continued to survive." Terry v. Red River Center Corporation, November 15, 2006.

Both the court and the family both seem to have failed to understand the significance of a DNR ("Do Not Resuscitate") order, and the power of advance directives. DNR is not the same as "Do Not Hospitalize," and should not by itself prevent hospitalization, but a patient’s wishes about resuscitation should be followed regardless of the setting. A formal DNR order, however, is a medical order—and entered by a physician, not by the patient herself. Still, that is not to say that a patient’s wishes may be ignored—and state advance directive laws are only one way an individual can express (or withhold) her consent to treatment. The question in Ms. Lee’s case should have been whether she had articulated her wishes with sufficient clarity to put the facility on notice as to what she wanted done—or not done. Compliance with state statutes on advance directives would have been a good idea, but failure to do so should not have prevented Ms. Lee's wishes from being followed.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2009 Fleming & Curti, P.L.C.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 /  FAX: 520-203-0240