WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOW ABOUT
“DO NOT RESUSCITATE” ORDERS
By Nina Jung
December 1, 2003
I. INTRODUCTION
During the course of helping your clients plan for the future, you may discuss saving for
retirement, the division of their estate upon death and other financial matters. Perhaps just as
important to your client, though more personal and more difficult to discuss, are the various endof-life decisions they will encounter. Among these decisions is whether or not to allow
cardiopulmonary resuscitation (CPR) in the event of cardiac or respiratory arrest. At first blush,
the answer seems to be simple—resuscitate. However, for those in the end stages of a terminal
illness, death may be so near and the suffering so great that resuscitation would only prolong the
inevitable. In 1997, the Oklahoma legislature set forth the statutory provisions for this particular
end-of-life decision known as Do-Not-Resuscitate. The Oklahoma Do-Not-Resuscitate Act1
allows an individual to execute a form indicating his preference not to receive cardiopulmonary
resuscitation in the event of cardiac or respiratory arrest. Specifically, the Act defines the DoNot-Resuscitate order as "an order issued by a licensed physician that cardiopulmonary
resuscitation should not be administered to a certain person."2
1
2
Oklahoma Do-Not-Resuscitate Act, OKLA. STAT. tit. 63 §§ 3131.1-3131.14 (1997).
OKLA. STAT. tit. 63 § 3131.3 (1997).
1
II. HOW THE DO-NOT-RESUSCITATE ORDER COMPARES TO OTHER ADVANCE DIRECTIVES
The Do-Not-Resuscitate (DNR) order has a very narrow application, unlike similar
instruments like the living will and the durable power of attorney for health care. In general, the
living will protects the individual's treatment decisions only in the event of terminal illness or
persistent unconsciousness. The DNR order differs because it only allows the individual to deny
a specific type of care – CPR in the event of cardiac or respiratory arrest – whereas, the living
will applies to any life-sustaining treatment. The durable power of attorney for health care can be
even broader than the living will. The Uniform Durable Power of Attorney Act3 states that the
power of attorney may grant complete or limited decision-making authority over the principal's
health and medical care including life-sustaining treatment decisions if the power meets the
requirements for a health care proxy under Oklahoma Rights of the Terminally Ill or Persistently
Unconscious Act4 or the Oklahoma Do-Not-Resuscitate Act. It is important to note that although
the provisions of the Oklahoma Do-Not-Resuscitate Act apply regardless of whether a person has
completed an advance directive for health care, a DNR order cannot issue if it is in violation of a
valid advance directive for health care.5 For instance if a patient has a valid advance directive
that consents to CPR in the event of respiratory or cardiac arrest, a DNR cannot issue because it
would be contrary. For a valid DNR order to issue, the patient must first modify the advance
directive to eliminate the conflict.
3
The Uniform Durable Power of Attorney Act, OKLA. STAT. tit. 58 § 1072.1 et seq. (1992).
Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act, OKLA. STAT. tit. 63 § 3101.1 et seq.
(1997).
5
OKLA. STAT. tit. 63 § 3131.14 (1997).
4
2
III. CRITICISM
Although the DNR order has narrow and specific application, it is still a valuable tool for
insuring that an individual's wishes are honored. It may, for instance, be useful to a terminally ill
individual who wants to receive the treatment that will prolong life, but does not want to be
revived once cardiac or respiratory arrest occurs. However, there is concern that some elderly
patients are influenced by their physicians and execute a DNR form when they would actually
prefer to receive CPR.6 The vulnerability of aging patients to outside influence makes the
importance of having these discussions with your clients even clearer. Perhaps the easiest way an
attorney can eliminate this problem is by initiating the conversation with your client prior to
hospitalization. The client's wishes are reflected more accurately when they are free from the
influence of doctors and family members who may have adverse interests.
Another concern is making sure that the DNR order is not executed prematurely. A
young, healthy person may not want to forego CPR if they are likely to recover and enjoy a good
quality of life. Some suggest that only patients at the end of a terminal illness should sign a DNR
order. This would eliminate the chance that CPR could be withheld from an individual who is
young and strong enough to recover and enjoy a good quality of life.7 A living will may be more
appropriate for the young because its application is limited to terminal or persistently vegetative
patients.
6
E.P. Cherniack, Increasing the Use of DNR Orders in the Elderly Worldwide: Whose Choice is it?, 18 ISSUES L. &
MED. 295 (2002).
7
An Oklahoma perspective: end of life decision-making and termination of treatment. Teresa Meinders Burkett &
Samantha Weyrauch, 35 TULSA L. REV. 565 (Spring and Summer 2000).
3
IV. THE LANGUAGE OF THE OKLAHOMA DO-NOT-RESUSCITATE ACT
The remainder of this paper will track the language of the statute in order to provide a
detailed look at the procedures and protections in the Oklahoma Do-Not-Resuscitate Act.8
The Act begins by stating an intention that the DNR order or identification, when
executed in accordance with the Oklahoma Do-Not-Resuscitate Act, be given full faith and credit
in foreign courts. Given the mobility of modern life, this is a practical provision which extents
the utility of the Act.
The third section of the Act also provides definitions for various terms as they are used
within the Act. 9 Among these perhaps the most useful are:
"Incapacity" means the inability, because of physical or mental impairment, to appreciate
the nature and implications of a health care decision, to make an informed choice
regarding the alternatives presented, and to communicate that choice in an unambiguous
manner
"Representative" means an attorney-in-fact for health care decisions acting pursuant to the
Uniform Durable Power of Attorney Act10, a health care proxy acting pursuant to the
Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act11, or a guardian of
the person appointed under the Oklahoma Guardianship and Conservatorship Act.12
"Attending physician" means a licensed physician who has primary responsibility for
treatment or care of the person. If more than one physician shares that responsibility, any
of those physicians may act as the attending physician under the provisions of the
Oklahoma Do-Not-Resuscitate Act.
8
Oklahoma Do-Not-Resuscitate Act, OKLA. STAT. tit. 63 §§ 3131.1-3131.14 (1997).
OKLA. STAT. tit. 63 § 3131.3 (1997).
10
OKLA. STAT. tit. 58 § 1072.1 (1992).
11
OKLA. STAT. tit. 63 § 3101.1 (1992).
12
OKLA. STAT. tit. 30 § 3-119 (1997).
9
4
The presumption is that all individuals consent to CPR; the exceptions to this presumption are
articulated in Section 4 of the Act. In order for an exception to apply the health care provider
must have actual knowledge that one of the following conditions exists:

The person has notified his attending physician that he does not consent to CPR and such
notification has been entered in the patient's medical chart;

The parent or guardian of a minor child does not consent to CPR in the event of cardiac
or respiratory arrest, and the minor child, if capable of understanding the consequences of
this treatment decision does not object to the parent or guardian's decision, and the parent
or guardian has consulted with the attending physician, and notification has been placed
in the child's medical chart;

The representative of an incapacitated person has notified the attending physician that
based upon the incapacitated person's known wishes the representative does not consent
to the administration of CPR in the event of cardiac or respiratory arrest, and such
notification has been entered in the patient's medical chart;

For an incapacitated person for whom there is no representative, the attending physician
knows by clear and convincing evidence that the incapacitated person decided, when
competent, that he would not consent to CPR in the event of cardiac or respiratory arrest.

A do-not-resuscitate consent form has been executed for the patient in accordance with
the Oklahoma Do-Not-Resuscitate Act;

An executed advance directive or other recognized document states that life-sustaining
treatment should not be performed in the event of cardiac or respiratory arrest.
5
Documentation of these conditions is critical to compliance with the Act, especially in the case of
an incapacitated person. Also, the duty of the attending physician is greater with respect to an
incapacitated patient; he must encourage consultation regarding the DNR decision among the
available representative, family members and other persons close to the incapacitated patient as
well as explaining the consequences of the decision and documenting his efforts in the patient's
medical records.13
The Act charges health care agencies14 with the task of providing ongoing education
about the DNR form to patients, health care providers and the community. However, the Act
does not provide any guidelines for the way in which such education should be provided or
whether these efforts will be funded or subsidized by the state. Though it seems that health care
agencies will be left with the financial responsibility of educating patients and the community,
they are not required by the Act to change the scope of equipment or care they offer. If the health
care agency does not offer CPR, they are not required to start offering such treatment so long as
their patients are notified in writing of the agency's policy on CPR prior to coming under that
agency's care.15 Further, no physician, health care provider or health care agency must undertake
the administration of CPR when doing so would not, in reasonable medical judgment, prevent
the patient's imminent death.
13
OKLA. STAT. tit. 63 § 3131.4(B) (1999).
Defined in §3131.3 as "an agency established to administer or provide health care services and which is commonly
known by a wide variety of titles including, but not limited to, hospitals, medical centers, ambulatory health care
facilities, physicians' offices and clinics, extended care facilities operated in connection with hospitals, nursing
homes, extended care facilities operated in connection with rehabilitation centers, home care agencies and hospices."
15
OKLA. STAT. tit. 63 § 3131.4(C) (1999).
14
6
V. THE CONSENT FORM
The Oklahoma Do-Not-Resuscitate Act sets forth a sample consent form in Section 5 of
the Act and that form is reproduced in Appendix A of this paper.16 The consent form for patients
currently being treated by a health care agency must comply with the policies and procedures of
that health care agency, and cannot conflict with the provisions of the Act itself. The form set
forth in the statute is a suggested and preferred form but the statute recognizes the validity of
other forms so long as they conform substantially to the suggested language.
The suggested consent form has two parts, the patient consent form and the physician
certification. The patient consent form is brief and describes in clear language both the DNR
decision and the ways to revoke consent. If the patient executes the consent form, the form is to
be signed by two witnesses over the age of 18 who are not legatees, devisees or heirs of the
patient.17 The completed form would then be placed and remain in the patient’s medical records
until revocation.
The physician certification is only for use when the patient is incapacitated and has no
representative. By signing this form, the attending physician18 certifies that based on clear and
convincing evidence the patient would not have consented to CPR in the event of cardiac or
respiratory arrest. Although the standard of clear and convincing evidence is high, the form states
that oral evidence and other acts of communication of the patient will suffice in addition to
written statements. Statements made by the patient to family members, health care providers and
16
OKLA. STAT. tit. 63 § 3131.5(B) (1997).
OKLA. STAT. tit. 63 § 3131.5(C) (1997).
18
Defined in OKLA. STAT. tit. 63 § 3131.3 as “a licensed physician who has primary responsibility for treatment or
17
7
others with whom the patient had a close relationship regarding his or her wishes all appear to be
admissible. There are no provisions for revocation on the physician certification. The physician
certification does not require signing by witnesses, only the date, the attending physician’s
signature, address and phone number. The completed physician certification would then be
placed in the patient’s medical records.
Consent, once executed, is transferable as the patient moves to different health care
facilities or from home to a health care facility.19 The statute is unclear as to who is responsible
for notifying the transferee facility of DNR status. The common sense approach seems to be that
the attending physician at the transferor facility would notify the new attending physician at the
transferee facility, and that a patient (if competent) coming from home to a health care facility
would notify the attending physician. For incapacitated patients, the responsibility would lie with
the representative to notify the facility of DNR status. In any situation, it would be prudent for
the patient or representative to make sure the new facility has a copy of the consent form and is
aware of any DNR identification worn by the patient.
VI. IDENTIFICATION
The Oklahoma Do-Not-Resuscitate Act charged the Department of Human Services with
the task of implementing the distribution of DNR forms and identification necklaces, bracelets
and cards. 20 DNR identification, whether necklace, bracelet or card, must have the patient’s
name, date of birth (in numerical form) and “Oklahoma Do-Not-Resuscitate” on it to be deemed
care of the person.”
19
OKLA. STAT. tit. 63 § 3131.10 (1997).
8
valid for the purposes of the Oklahoma Do-Not-Resuscitate Act. Such identification may only be
issued upon presentation of a valid do-not-resuscitate consent form in compliance with the Act.21
VII. REVOCATION OF CONSENT
A patient may revoke DNR consent at any time. If the patient is not currently under the
care of a health care agency, the patient may revoke by destroying the consent form and any DNR
identification and notifying the patient’s attending physician.22 Because most of us don't have a
family doctor like generations before may have had, this tends to make "attending physician" a
rather illusory term. However, for those who are terminally ill or who have a serious health
condition but are not currently in the hospital, the cardiologist or oncologist (for example) that
has been involved in treatment and diagnosis would most likely be the attending physician
because they likely were given the DNR order when it was executed. If the patient is currently
under the care of a health care agency, the patient may revoke a DNR consent decision by
communicating with the attending physician or other health care provider either orally or in
writing.
A minor child capable of understanding and appreciating the nature and consequences of
his decision may revoke a DNR order by communicating the desire to revoke to a physician or
health care provider; however, it is the parent or guardian’s responsibility to notify the child’s
attending physician of the revocation.
20
OKLA. STAT. tit. 63 § 3131.12 (1997).
OKLA. STAT. tit. 63 § 3131.5(B) (1997).
22
OKLA. STAT. tit. 63 § 3131.7 (1998).
21
9
A representative for an incapacitated person not in the care of a health care agency may
revoke a DNR by destroying the form and identification and notifying the incapacitated person’s
attending physician of the change. If the incapacitated person is under the care of a health care
agency, the representative must communicate the revocation to the attending physician either in
writing or orally. As mentioned before, there seems to be no mechanism for revocation by an
incapacitated person without a representative.
VIII. COMPLIANCE
Compliance with the DNR consent form as provided in the Oklahoma-Do-NotResuscitate Act is mandatory for health care providers.23 The Act states that health care providers
“shall” take appropriate actions to comply with a DNR request. In another section of the statute it
states that a patient’s attending physician or other health care provider “must comply” with the
patient’s DNR request.24 Because of the mandatory compliance, the Act protects complying
health care providers and health care agencies from criminal, civil and professional liability.25
The standard of good faith conduct is imposed upon the health care providers conduct in
compliance with a DNR order. There is also a good faith exception from liability for health care
providers who resuscitate in spite of a DNR order. In that instance the health care provider must
be reasonably and in good faith unaware of the DNR order, or must reasonably and in good faith
believe that the DNR order had been revoked or cancelled.
23
OKLA. STAT. tit. 63 § 3131.6 (1997).
OKLA. STAT. tit. 63 § 3131.11 (1998).
25
OKLA. STAT. tit. 63 § 3131.8 (1997).
24
10
Physicians who know that their moral, ethical or religious beliefs will prevent them from
complying with a DNR order may choose to advise patients or representatives that they are
unwilling to comply with the DNR order. Such a physician must then take reasonable steps to
arrange another health care provider for the person.
Despite the language of the Oklahoma statute, there is some evidence that health care
professionals often disregard DNR orders. In the case of emergency medical providers, the
exigent circumstances may stretch the presumption that the patient wants to be resuscitated.
Patients who feel strongly about their decision not to be resuscitated will undoubtedly feel
incensed by the oversight. One former nurse in England even had the words “Do Not
Resuscitate” tattooed across her chest in hopes that her request, unlike so many she had seen in
her work, would be respected.26 Here in Oklahoma, where tattooing is illegal, the advent of DNR
identification bracelets and necklaces should make compliance by health care professionals
easier and save patients a trip across state lines.
Compliance with the Oklahoma Do-Not-Resuscitate Act extends to insurance providers.27
The existence of a DNR order shall not impair or otherwise affect a life insurance policy. Equally
important, no health insurance provider may prohibit or require the issuance of a DNR order as a
condition of insurance or receiving health care services. Were it not for this provision, the
ghoulish possibility of insurance companies making end-of-life decisions by conditioning
treatment or coverage on DNR status could be a reality.
26
27
Pensioner's 'Do Not Resuscitate' tattoo, available at <http://news.bbc.co.uk/1/hi/health/2819149.stm>.
OKLA. STAT. tit. 63 § 3131.9 (1997).
11
One crucial construction of the Oklahoma Do-Not-Resuscitate Act is that the withholding
of CPR in accordance with the Act shall not constitute suicide or homicide for any purpose.28
Notwithstanding the prior discussion on protection from liability, this provision is important, at
least for the purposes of life insurance policies that may not pay in the event of suicide. The Act,
however, does not release from liability those who caused the condition leading to cardiac or
respiratory arrest.
Another important distinction the statute makes is that between DNR and assisted suicide.
The Act is unequivocal in stating that it does not legalize, condone, authorize or approve assisted
suicide.29 The distinction is clear, DNR allows a person to die after cardiac or respiratory arrest
has occurred as a natural result of injury or illness. Assisted suicide prematurely and artificially
causes cardiac or respiratory arrest through the administration of medication.
IX. CONCLUSION
The decision whether or not to resuscitate and other end-of-life decisions face all of us
eventually. The recent story of Terry Schiavo30, the Florida woman whose fate became national
news and fodder for the Florida legislature, is a poignant reminder of how important end-of-life
decisions are. At the heart of the matter is the patient’s privacy and autonomy interests. Each
person should exercise his right to decide. It is the only way to be certain that your wishes are
respected at a time when you have no voice. This is especially true for DNR orders; during
28
OKLA. STAT. tit. 63 § 3131.13 (1997).
Id.
30
Connie Prater, Schiavo Case Increases Interest in Living Wills, THE MIAMI HERALD, Oct. 27, 2003.
29
12
cardiac or respiratory arrest, the mental capacity or ability to communicate that is necessary to
alert health care providers of your wishes are not available. As an attorney, your foresight in
educating your clients about end-of-life decision-making can both give your client peace of mind
and save your client’s family from the daunting and painful task of making these inherently
difficult personal decisions.
For a guide to DNR and a link to the DNR form see the Oklahoma DHS website at:
<http://www.okdhs.org/aging/Importantdocuments.htm>
For a discussion of end-of-life issues in other states see: Kathryn E. Mazzeo, Comment: The
Right to Die Versus the Right to Live – Who Decides? The Long and Wandering Road to a
Legislative Solution, 66 ALB. L. REV. 263 (2002).
13
APPENDIX
FRONT PAGE
OKLAHOMA DO-NOT-RESUSCITATE (DNR) CONSENT FORM
I, _________________________, request limited health care as described in this document. If my heart stops beating or
if I stop breathing, no medical procedure to restore breathing or heart function will be instituted by any health care
provider including, but not limited to, emergency medical services (EMS) personnel.
I understand that this decision will not prevent me from receiving other health care such as the Heimlich maneuver or
oxygen and other comfort care measures.
I understand that I may revoke this consent at any time in one of the following ways:
1. If I am under the care of a health care agency, by making an oral, written, or other act of communication to a
physician or other health care provider of a health care agency;
2. If I am not under the care of a health care agency, by destroying my do-not-resuscitate form, removing all do-notresuscitate identification from my person, and notifying my attending physician of the revocation;
3. If I am incapacitated and under the care of a health care agency, my representative may revoke the do-not-resuscitate
consent by written notification of a physician or other health care provider of the health care agency or by oral
notification of my attending physician; or
4. If I am incapacitated and not under the care of a health care agency, my representative may revoke the do-notresuscitate consent by destroying the do-not-resuscitate form, removing all do-not-resuscitate identification from my
person, and notifying my attending physician of the revocation.
I give permission fort this information to be given to EMS personnel, doctors, nurses, and other health care providers. I
hereby state that I am making an informed decision and agree to a do-not-resuscitate order.
_______________________________________ OR _______________________________________
Signature of person
Signature of Representative
(Limited to an attorney-in-fact for health care decisions
acting under the Durable Power of Attorney Act, a health
care proxy acting under the Oklahoma Rights of the
Terminally Ill or Persistently Unconscious Act or a guardian
Of the person appointed under the Oklahoma Guardianship
And Conservatorship Act)
This DNR form was signed in my presence
_______________________________________
Date
______________________________ ___________________
Signature of Witness
Address
______________________________ ___________________
Signature of Witness
Address
14
BACK PAGE
CERTIFICATION OF PHYSICIAN
(This form is to be used by an attending physician only to certify than an incapacitated person without a representative
would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory
arrest. An attending physician of an incapacitated person without a representative must know by clear and convincing
evidence that the incapacitated person, when competent, decided on the basis of information sufficient to constitute
informed consent that such person would not have consented to the administration of cardiopulmonary resuscitation in the
event of cardiac or respiratory arrest. Clear and convincing evidence for this purpose shall includes oral, written, or other
acts of communication between the patient, when competent, and family members, health care providers, or others close
to the patient with knowledge of the patient's desires.)
I hereby certify, based on clear and convincing evidence presented to me, that I believe that
____________________________________________________________________________________________
Name of Incapacitated Person
would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory
arrest. Therefore, in the event of cardiac or respiratory arrest, no chest compressions, artificial ventilation, intubations,
defibrillation, or emergency cardiac medications are to be initiated.
_________________________________________
Physician's Signature / Date
______________________________________
Physician's Name (PRINT)
____________________________________________________________________________________________
Physician's Address / Phone
15