Wisconsin's Do Not Resuscitate Bracelet Law Raises Legal and Medical Issues

By Jane Barclay Mandel

Growing public support for patient autonomy in medical care has taken a new legal form in Wisconsin. A bill to provide terminally ill patients with the option of wearing a permanent do not resuscitate (DNR) bracelet became law in April 1996.¹ A new subchapter III of Wisconsin Statutes Chapter 154 allows physicians to provide a DNR order in the form of a bracelet for adults with terminal illnesses who choose not to receive cardiopulmonary resuscitation (CPR), including cardiac compression, endotracheal intubation, artificial ventilation and defibrillation should they have a medical emergency while not hospitalized. Emergency treatment other than CPR may be given; that is, treatment for a blocked airway (Heimlich maneuver), oxygen for an asthmatic attack and comfort care. A person retains the right to revoke the order at any time by removing or defacing the bracelet, or by giving oral instructions to a medical care provider that he or she wants resuscitation.

Physicians now can provide a do not resuscitate (DNR) order in the form of a bracelet for their terminally ill adult patients who request it. But questions remain, such as: Who is bound to honor the patient's DNR bracelet and if they don't, does liability attach? Do courts recognize a "wrongful living" cause of action in tort? And what about damages? Debate rages on this highly sensitive patient rights issue.

This article reviews the legal and medical issues raised by the new law, and considers how and to what extent the law will be used.

Legislative history

Rep. Greg Huber, Wausau, sponsored the bill in response to constituents' needs: Elderly Wisconsinites who had decided to forgo emergency CPR wanted a way to ensure that their decisions would be honored in all settings, not just while in a hospital; Wisconsin Emergency Medical Technicians (EMTs) were concerned about the lack of uniformity among protocols for emergency 911 calls from county to county. According to Choice in Dying, a citizen's group, 29 states already have statutes authorizing nonhospital DNR orders. At least 12 other states have DNR bracelet laws. Elderly constituents' concerns about not being able to refuse CPR in a medical emergency have increased with the advent of medical treatments that allow many seriously ill patients to be cared for at home.

In late 1994 Rep. Huber and Bill Bazan, who consults to Catholic hospital ethics committees, built a coalition consisting of the Catholic Hospital Association of Wisconsin, the Wisconsin Coalition on Aging Groups and professional associations for nursing homes, emergency medical technicians and hospices, to support the passage of a Wisconsin law.

The bracelet bill was designed to fill a gap in patients' control over their medical treatment not addressed in the existing state laws providing a Health Care Power of Attorney and Living Will. ² The Living Will allows a person to specify that their death should not be prolonged by certain medical treatments, such as feeding tubes. It becomes effective when two physicians (or a physician and a psychologist) certify that a patient no longer is competent to make his or her own decisions about medical treatment. The Power of Attorney for Health Care (HCPA) is a written directive in which a person designates a health-care agent who has authority to make decisions on the person's behalf when he or she no longer is able to do so. Two physicians (or a physician and a psychologist) must certify the patient's incompetence before the health-care agency becomes effective. Many law firms combine these two documents into one that appoints a health-care agent and includes directives about what kinds of treatment the person wishes to forgo.

Federal law now requires that hospitals, nursing homes and home health-care agencies ask all patients about advanced directives when they are admitted and document their choices about life-prolonging treatment. A patient may request a DNR order or "no code" status and this request is documented in the patient's chart. The directives are effective only during the patient's inpatient stay.

By contrast, the DNR bracelet addresses the necessity for quick decision-making in an out-of-hospital emergency. An EMT or other first responder does not have time to investigate whether a patient has a living will or HCPA, nor upon learning that such a directive exists, has time to contact two physicians to have them certify that a patient is incompetent and to authorize treatment according to the directive. Most importantly, written advanced directives are not binding upon givers of emergency medical care, such as EMTs, paramedics responding to a 911 call, first responders in the workplace and emergency room staff, all of whom are legally required to render emergency assistance, including CPR. The DNR bracelet gives first responders immediate notice of the patient's previously made decision to forgo CPR and gives a clear signal that they should not resuscitate the patient. They may, however, administer non-CPR emergency care.

The bracelet gives effective notice that a person does not wish to be resuscitated even when he or she is outside a hospital, nursing home or hospice. The bracelet thus provides portability of a person's no code decision into public places and at home. The law allows for patient autonomy in medical decision-making regardless of where they may be. The increase in terminally ill patients who are ambulatory and able to avoid institutional care has made the need for this autonomy and consistency in patient decision-making a necessity.

Qualifying for a DNR bracelet

The law is very narrow in its definition of who can qualify for a bracelet. To qualify for a bracelet, a person must be over 18, and have:

1. a terminal condition; or
   
   
2. a medical condition for which CPR would be unsuccessful in restoring cardiopulmonary functioning or a medical condition in which the person would experience repeated cardiopulmonary failure within a short time prior to death; or
   
   
3. a medical condition such that resuscitation would cause significant pain or harm that outweighs the possibility that resuscitation would be successful for a significant time. ³

These criteria provide for patient autonomy in out-of-hospital situations, but limit who may qualify to patients with serious life-threatening or terminal illnesses.

Interpretation and use of the new law

As the qualifications for a bracelet are very narrowly tailored, the law may "do no harm, but do very little good," as Betsy Abrahamson of the Wisconsin Coalition of Aging Groups commented. Further, a bracelet's availability is limited to the final months of life. This time frame also is when patients are most likely to be cared for in an institution where inpatient DNR orders rather than the bracelet control. Indeed, the vast majority of deaths still occur in hospitals or nursing homes rather than at home. ⁴

Further, terminally ill patients are among those most likely to already have made advance directives in the form of a living will or health-care power of attorney. Because of the seriousness of their illnesses, these patients may be more ready to confront the end of life and make an appropriate plan. Also, noninstitutionalized patients already may be aware of informal methods to ensure that they are not resuscitated unwillingly. According to Dr. Glenn Ragalie, chief of staff at St. Mary's Hospital, Milwaukee, and a specialist in pulmonary medicine, patients with chronic end stage pulmonary or cardiac disease usually are well-educated about how to avoid unwanted emergency resuscitation. For instance, if they experience distress, they are advised to call their home health agency or attending physician rather than 911. As a result, use of the bracelet law may be minimal.

The new law, however, may provide assurance that a patient's wishes will be respected. The bracelet also sends a clear message to family members who otherwise might demand aggressive emergency treatment. Family members know the patient's decision and can honor it without uncertainty or guilt.

Use of the bracelet may increase if the health-care system continues to shift patients out of institutional settings for care at home. The bracelet may be especially useful for home care situations that involve multiple caregivers, to ensure that all are informed about the patient's decision. Further, seriously ill people who have no family to represent their wishes may find the use of the bracelet reassuring if they are living independently. They or their caregiver can call 911 for emergency oxygen, comfort care, pain relief or emergency transport to the hospital, and yet have their decision to refuse resuscitation honored. As patients with chronic debilitating illnesses live longer, and continue to be ambulatory in spite of their life-threatening conditions, the utility of a bracelet in the scenario of "shopping mall collapse" may increase.

Finally, the continued growth of managed-care organizations may result in fewer patients having a personal relationship with a primary care physician whom they know and trust to honor the patients' wishes without a written advanced directive. This trend toward depersonalization may also mean that physicians who have honored patients' wishes in the past without a written directive to guide them, may be less willing to withhold CPR without a written document. Both sides of a system that worked well informally may in future require written documentation. The written advanced directive may be the only way a physician or other medical caregiver will support patient's wishes when the physician does not know the patient well. The advanced directive also protects the caregiver who may be unwilling to follow a patient's orally expressed wishes in the face of disagreement from family members.

The new law will reduce confusion when a patient is transferred between home, hospital, hospice, nursing home and emergency room. Each institution has its own responsibility to determine a patient's wishes as to resuscitation, but during transport records may be unavailable or special orders may be required. The bracelet communicates the patient's wishes during transport by ambulance from one location to another.

Will the bracelet's visibility discourage some patients from using it? The bracelet may be interpreted as a badge that one has given up on life; its visibility and recognizability may expose patients to imprecations from persons who disagree with their decision. The bracelet makes public a private, personal choice. It may be seen as a stigma. The bracelet may not be accepted aesthetically by some patients; others may experience an allergic reaction to the plastic band. The statute authorizes no alternate material. The plastic band, while not as sturdy as metal medic-alert bracelets, can easily be replaced by the patient's physician if damaged by bathing or other activities. A damaged bracelet should be replaced so damage is not interpreted as revocation.

Unresolved issues

If a competent patient has requested a bracelet and then becomes incompetent, when, if ever, may a health-care agent decide to revoke the bracelet? According to Wisconsin Statutes section 155.20(5), "the agent's decisions must in good faith conform with any valid declaration executed by the principal." The law provides that "in the absence of a specific directive by the principal or if the principal's desires are unknown, the health care agent shall, in good faith, act in the best interests of the principal." This language would seem to permit an agent to order a DNR bracelet if it was in the patient's best interest, but would not permit an agent to contravene the stated wishes of a now incompetent patient by ordering revocation of a bracelet that had been validly executed while competent. Although the bracelet law is silent on the issue, the Wisconsin Hospital Association and Catholic Hospital Association of Wisconsin have interpreted the provision of the HCPA statute and the new bracelet law to allow a health-care agent to request a bracelet if the patient is incompetent to make his or her own decisions.

If a patient wearing a bracelet is admitted to a hospital or nursing home, will the bracelet be honored? The DNR bracelet law does not address all do-not-resuscitate orders. Hospitals and other institutions may still set their own policies and procedures for inpatient DNR orders; however, institutions may need to review their policies and procedures to integrate their current practices with the new DNR bracelet law. Outpatient treatment facilities and physician's offices also should consider their treatment response to a patient wearing a valid bracelet.

Questions remain about whether a Wisconsin DNR bracelet will be honored by medical personnel in other states, and whether an out-of-state bracelet will be honored in Wisconsin. A physician or attorney may advise a person leaving Wisconsin to have his or her physician transfer medical records to a physician in the new location and inquire about the availability of a DNR bracelet or similar provision of applicable local law.

Liability issues

Fines and imprisonment of $500 and 30 days maximum are imposed upon any person who conceals, defaces or damages a DNR bracelet without the patient's consent, and upon any person who forces a person to sign a DNR bracelet order by using threats, intimidation or coercion. A person who falsifies or transfers a DNR bracelet to a patient who has not requested one, or who conceals the revocation of a DNR bracelet, may be punished by a fine of up to $10,000 and up to 10 years imprisonment. ⁵

Failure to honor a DNR bracelet

The statute specifies that no caregiver or facility will be held liable for providing resuscitation unless they have actual knowledge of the DNR order. Additionally, no liability attaches if a provider fails to act when there is no actual knowledge of revocation of a DNR order. Ambiguity may arise when a patient is wearing a bracelet that appears to be defaced or damaged, and the patient cannot clarify his or her wishes. In this situation, CPR should be provided because the only valid bracelet is one that is clearly not "tampered with." Further, an emergency caregiver cannot judge the competence of a patient so CPR should always be provided when requested, even by a confused patient. The statute provides no penalty for resuscitating a person wearing a valid bracelet.

Some legal scholars have proposed creating a tort of "wrongful living" to allow damages to a patient whose right to refuse medical treatment has been violated by unconsented treatment. In this scenario, a medical caregiver who knowingly or negligently provided resuscitation would be liable. ⁶ Further, if the treatment itself was negligently performed, damages would be available for medical malpractice (that is, battery for nonconsensual touching).

The Wisconsin Supreme Court has reiterated the broad social purposes of tort law:

"1) as a matter of justice, tort law shifts the losses caused by a personal injury to the one at fault;

"2) by placing the cost with the one in the position to prevent the injury, tort law seeks to deter unsafe behavior; and

"3) to compensate the victim, tort law creates a mechanism to distribute losses widely." ⁷

According to its advocates, the wrongful living cause of action would send a message to medical caregivers that they must respect patients' value decisions and their right to refuse medical treatment.

Physicians have a duty to provide medical care to their patients, thus asserting this cause of action may place physicians in a legal and ethical dilemma. By withholding treatment, physicians may face medical malpractice; by providing treatment, they may risk civil liability. In some situations, a physician may decide that a DNR order or bracelet is appropriate because resuscitation can be of no medical benefit to a patient. In this situation, it is the physician's medical expertise that is determinative, not the patient's values. In other situations, while sustaining the patient's life, resuscitation may so seriously compromise quality of life that the decision must be based on the patient's values. Decision-making is further complicated by studies showing that patients who desire an early death often are suffering from a treatable depression. ⁸

Proponents of a wrongful living cause of action also debate the issue of damages. A patient with a short life expectancy could claim little if any pecuniary losses. An elderly person receiving social security, retirement benefits and Medicare would have no loss of income and few uncovered medical expenses. Indeed the issue is not truly one of compensation for financial losses but for a breach of the agreement not to provide resuscitation. Legal scholars such as Tricia J. Hackleman argue that disrespect for patient decision-making is common, thus a new cause of action is the only way to force physicians to respect patient rights. Hackleman bases her argument upon a 1978 survey of California physicians that showed 11 to 20 percent of physicians refused to follow patient directives, even when they faced no risk of legal liability for doing so. ⁹

In the ensuing 19 years, the public and physicians have been well educated about patient rights. In 1990 Congress passed the Patient Self Determination Act, requiring that all patients admitted to health-care facilities be asked about advanced directives. The Joint Commission on Accreditation of Health Care Organizations requires its members to implement procedures to provide advanced directives. Popular magazine and talk shows have provided wide exposure to the issue of patient rights. Thus it is likely that an update of the California study would find physicians more compliant with patients' wishes regarding DNR status.

However, this new awareness of patient rights coupled with the rise of managed care has created a risk associated with asserting a right to refuse treatment. As Judge Posner recently expressed:

"HMOs, though they have made great strides in recent years because of the widespread concern with skyrocketing medical costs, remain relative upstarts in the market for physician services. Many people don't like them because of the restriction on the patient's choice of doctors or because they fear that HMOs skimp on service, since, as we said, the marginal revenue of a medical procedure to an HMO is zero. From a short-term financial standpoint - which we do not suggest is the only standpoint that an HMO is likely to have - the HMO's incentive is to keep you healthy if it can but if you get very sick, and are unlikely to recover to a healthy state involving few medical expenses, to let you die as quickly and cheaply as possible. HMOs compensate for these perceived drawbacks by charging a lower price than fee-for-service plans." ¹⁰

Some proponents of living wills and other advanced directives such as the bracelet laws, argue that their use might reduce medical costs near the end of life. ¹¹ The attractiveness of advanced directives as a cost-saving device in managed care creates a serious conflict of interest. Further, patients are offended by the federally required practice of asking all adult patients (not just those with a terminal condition) about their desire for advanced directives upon admission to a hospital. Nonterminal patients who must make extensive use of medical services, such as disabled persons or those with chronic illnesses, may be especially sensitive to the issue raised by Judge Posner. These negative reactions coupled with the rise of cost-conscious managed care also may effect how widely the bracelet is used, even among qualified terminally ill patients.

Wisconsin case law on liability issues

Wisconsin courts have not recognized the wrongful living cause of action. Other related causes of action have been recognized, however, and may provide some insight into how a Wisconsin court might decide a wrongful living case.

The Wisconsin Supreme Court in Slawek v. Stroh refused to recognize a new cause of action for wrongful birth because such recognition "would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or their elected legislative representatives." ¹² In Slawek a healthy child brought suit against her father for the suffering associated with her illegitimate birth.

The refusal to legally recognize wrongful birth claims has been reiterated in Terry v. Johnson ¹³ and Dumer v. St. Michael's Hospital. ¹⁴ In Dumer a child born with congenital defects sued her mother's physician for wrongful birth resulting from a missed diagnosis of the mother's rubella. The court found the major obstacle to the child's claim was the determination of damages. ¹⁵ The damages claimed flowed from the result of being born, as opposed to having been aborted, should the mother have known about her exposure to rubella. The court refused to measure the difference between "life with defects against the utter void of nonexistence" ¹⁶ and denied compensatory damages.

In Terry, as part of a bankruptcy proceeding, a physician sought to restrain prosecution of a wrongful life malpractice claim for a child conceived due to a defectively performed vasectomy. The Bankruptcy Court declined to address a legal claim not yet recognized in Wisconsin and vacated the order, noting that Wisconsin state courts should decide important public policy questions.

In Marciniak v. Lundborg, an action by parents to recover costs of raising a healthy child conceived due to a negligently performed sterilization operation on the mother, the Wisconsin Supreme Court held that costs of raising the child to majority were recoverable. ¹⁷ The court cited the general Wisconsin rule of tort that a person has "an obligation to exercise reasonable care so as not to cause foreseeable harm to another." ¹⁸ The court rejected the argument that the child-rearing costs were out of proportion to the doctor's culpability, noting that the couple likely had made their decision in part based upon their inability to afford the cost of raising another child. The court reiterated that the patient had sought medical assistance for the "express purpose of permanently avoiding conception, and as a result, the physician can be held liable for the consequences that are the direct result of his negligence." ¹⁹ The court shifted the costs of raising the child to the negligent physician.

Extrapolating from these cases, Wisconsin courts may find that medical malpractice based upon battery is a sufficient cause of action when a DNR order is intentionally or negligently disregarded. Damages from physical harm caused by the act of resuscitation may be recoverable just as the costs of raising a child recoverable in Marciniak. In Slawek and Dumer the Wisconsin Supreme Court refused to recognize a cause of action for wrongful life due to the impossibility of valuing nonexistence over life. The court found that the social policy ramifications of such a decision should be considered by the people. For similar public policy reasons, the court would likely defer creating the wrongful living tort to the Legislature.

Jane Barclay Mandel, U.W. 1997 cum laude, practices with Quarles & Brady, Milwaukee, in estate planning and tax exempt organizations. She formerly was a senior research scientist in the psychobiology division of the Long Island Research Institute, an assistant professor of family medicine at the Medical College of Wisconsin, and a consulting psychologist to the Milwaukee Task Force on Battered Women. She received her Ph.D. in psychology in 1977 from Northwestern University.

Conclusion

The new bracelet bill attempts to provide more patient autonomy and better assurance that a terminal patient's wish not to be resuscitated will be respected even when the patient is not in a health-care institution. As more terminally ill people are either ambulatory or being cared for at home, this law may provide a useful extension of patients' right to refuse treatment, and to have their decisions honored.

Questions of interpretation and extent of actual use remain. Research on the bracelet's frequency of use, how patients learn about its availability and how physicians interpret who qualifies for a bracelet would provide valuable data about the new law's effects. The conflict between the physician's need to respect patient choices and the physician's role as expert healer merit continued attention, as does the conflict of interest faced by managed-care organizations whose interest in containing costs may taint their support of patient advanced directives, including the DNR bracelet.

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Endnotes

¹ 1995 Wisconsin Act 200.

² Wis.Stat. 154, 155.

³ Wis. Stat. 154.17(4).

⁴ R.N. Butler, R. Burt, K.M. Foley, R.S. Morrison, Palliative Medicine: Providing Care When Cure is Not Possible, Geriatrics 33 (May 1, 1996).

⁵ Wis. Stat. 154.23.

⁶ Tricia J. Hackleman, Violation of an Individual's Right to Die: The Need for a Wrongful Living Cause of Action, 64 U. Cin. L. Rev. 1355, 1370-71 (1966).

⁷ CLL Assoc. v. Arrowhead Pacific, 174 Wis. 2d 604, 610, 497 N.W.2d 115, 117 (1993).

⁸ Thomas B. Marzen, "Out, Out Brief Candle": Constitutionally Prescribed Suicide for the Terminally Ill, 21 Hastings Const. L.Q. 799, 811-12.

⁹ Diane L. Redleaf, Suzanne B. Schmitt, William C. Thompson, The California Natural Death Act: An Empirical Study of Physicians' Practices, 31 Stan. L. Rev. 913 (1979).

¹⁰ Blue Cross & Blue Shield United of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1410 (7th Cir. 1995).

¹¹ Laura Hanson and Eric Rodgman, The Use of Living Wills at the End of Life: A National Study, Arch. Internal Med., May 13, 1996.

¹² 62 Wis. 2d 295, 317-18, 215 N.W.2d 9, 22 (1974).

¹³ 12 B.R. 578 (E.D. Wis. 1981).

¹⁴ 69 Wis. 2d 766, 233 N.W.2d 372 (1975).

¹⁵ Id. at 772, 233 N.W.2d at 375.

¹⁶ Id. at 773, 233 N.W.2d at 376.

¹⁷ Marciniak v. Lundborg, 153 Wis. 2d 59, 450 N.W.2d 243 (1990).

¹⁸ Id. at 70, 450 N.W.2d at 248.

¹⁹ Id.

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