By Wendy M. Greenberg, Esq1
Mildred is your 86 year-old client
with advanced dementia. When she was
initially diagnosed with dementia you were careful to draft an Advance Health Care
Directive that clearly stated her wishes not to receive CPR or to be placed on
a breathing machine, and to have her care focused on her comfort. Last night she developed a severe pneumonia
was transferred from the nursing home where she lives to a local hospital. The physicians in the emergency room, not
having access to her Advance Directive and not knowing that her primary care
physician wrote a Do Not Resuscitate (DNR) order at the nursing home, intubated
her and placed her on a breathing machine.
She died 6 hours later after an unsuccessful resuscitation attempt. Her family is furious that she received these
aggressive interventions, as her wishes were clearly documented in her Advance
This case highlights one important
inadequacy in the care of seriously ill patients: the inability of a fragmented
health care system to document and honor end-of-life preferences across
different care sites. Advance Directives
are often not available in times of crises, and commonly include vague
instructions that make it difficult for health care providers to know when and
how to act on the expressed preferences.
A solution for California may come as a result of California Assembly
Bill AB 3000. Signed by Governor Schwarzenegger
on August 4, 2008, and effective as of January 1, 2009,
AB 3000 added to the California Probate Code recognition of Physician
Orders for Life-Sustaining Treatment ("POLST") (California Probate Code Section
POLST originally started in Oregon in 1991. Through the efforts of a National POLST
Paradigm Initiative Task Force, many states throughout the country are now
developing their own POLST programs. The POLST program consists of a
coordinated system for eliciting, documenting, and communicating life-sustaining
treatment wishes of seriously ill patients.
The heart of this program is the POLST form, which includes medical
orders signed by both a physician and the patient. These orders instruct health care
professionals of the patient's wishes regarding medical treatment and become
part of the patient's medical record.
The POLST form is designed to be easily recognizable by health care
providers (it is to be printed on brightly colored paper and kept at the front
of the patient's chart) and totally portable, as part of the patient's medical
record, between care facilities.
The California form has three sections for the physician to document the
patient's wishes: Cardiopulmonary Resuscitation (CPR), Medical Interventions,
and Artificially Administered Nutrition.
The patient may specify whether CPR should be performed, and in not
quite so immediately dire circumstances, the level of medical intervention he
or she wants: "comfort measures only," "limited additional interventions," or
"full treatment." Patients may further
indicate whether nutrition may be supplied by tube, and for how long. By comparison, traditional DNR order covers
only resuscitation measures.
When is a POLST necessary (particularly in addition to or instead of an Advance Health Care Directive)?
A POLST form is not an Advance Health Care Directive, and it
does not include the appointment of an agent to speak on behalf of the
patient. The goal of the POLST form is to
provide a specific set of immediately active medical orders, determined by the
physician and patient with reference to the patient's current medical
condition. Thus, the POLST form is best
suited for those who are already seriously ill, allowing the avoidance of delay
in decisions regarding treatment by providing the patient's wishes without the
process of locating and consulting an Advance Directive agent. Because a POLST form must be completed with
the assistance of a health care professional (a physician, social worker or
nurse) and signed by a physician, it also allows the patient to start a
dialogue with his or her physician about important end of life choices.
There are several things to keep in mind when recommending
the completion of a POLST. First, if an
emergency service responder is not made immediately aware of the existence of a
POLST form, the responder may perform treatments against the wishes of the
patient. Executing a DNR order and
wearing a "Do Not Resuscitate - EMS" medallion will prevent this occurrence. Second, a POLST form will override previous
instructions, including an existing Advance Directive if there is a discrepancy
between the two. Finally, it is
important to note that a patient's appointed agent may modify a POLST while the
patient is incapacitated.
POLST forms appear to be effective; a recent study
published in 2010 by the Journal of the American Geriatrics Society found that nursing
home residents with POLST forms were significantly less likely to receive
unwanted life sustaining treatments when compared with those with traditional medical
orders.2 California POLST forms may be obtained in
various languages at www.capolst.org, and should be seriously
considered, in addition to Advance Health Care Directives, for clients with
advanced medical conditions.
Morrison & Foerster's
Trusts and Estates group provides sophisticated planning and administration
services to a broad variety of clients.
If you would like additional information or assistance, please contact
Patrick McCabe at (415) 268-6926 or PMcCabe@mofo.com.
© Copyright 2010 Morrison &
Foerster LLP. This article is published
with permission of Morrison & Foerster LLP.
Further duplication without the permission of Morrison & Foerster
LLP is prohibited. All rights
reserved. The views expressed in this
article are those of the authors only, are intended to be general in nature,
and are not attributable to Morrison & Foerster LLP or any of its
clients. The information provided herein
may not be applicable in all situations and should not be acted upon without
specific legal advice based on particular situations.
The author wishes to acknowledge the contributions of Erin Lubniewski and Eric
Bernard J. Hammes, PhD, Brenda L. Rooney, PhD, MPH, and Jacob D. Gundrum, MS 2010, July; Volume 58,
Issue 7: 1249-1255
. . . .
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