The Need for Discussion of End-of-Life Care Plans

Posted in: Health Law

National news recently picked up a story about a woman in a Bakersfield, California, senior living facility who died after a staff member refused to perform CPR on her, citing facility policy. According to news reports, the woman who died was an 87-year-old resident at the senior living facility. The staff member had called 911, in accordance with the facility’s policy, but refused to perform CPR, despite the dispatcher’s request that she do so. By the time paramedics arrived, the woman was not breathing and had no pulse.

Reactions to the story have varied significantly. Many people have focused on whether the staff member who refused to perform the procedure was a licensed nurse, as she identified herself to reporters as a nurse.

The law seldom imposes on individuals an affirmative duty to act (filing an annual tax return is one of the exceptions). Accordingly, a passerby who sees a person in need of help is generally not legally obligated to provide help, even if the passerby is able to provide help without risk of danger to himself or herself. The passerby may have a good reason not to render aid, but need not have any reason at all.

Traditionally, a person who aided another person who was ostensibly in need could have been civilly liable if the person did not actually want help, or if their good-faith efforts to help inadvertently injured the person. To encourage people to help others in the absence of a legal obligation to do so, most states have enacted “Good Samaritan” laws, which protect rescuers from liability for their actions.

In the reported story, the senior living facility at issue seems fairly clearly not a facility that provided medical care to its residents. Thus in my mind, whether the staff member at the crux of the issue was a licensed nurse is irrelevant. Based on the available information, she was not employed to perform the functions of a nurse; instead, her licensure, if any, was merely incidental to her position. Thus she did not have any duty to the deceased resident greater than that of any other passerby.

The family of the woman who died expressed remorse that “this private and personal time has been escalated by the media” (which is why I have chosen to discuss the implications of the situation without mentioning the deceased woman by name).

So why did this story make national news?

In this column, I consider some of the issues raised by this story and what our collective reaction to it says about us as a nation and as individuals. I first discuss why this particular story aroused such a passionate (and I argue misplaced) indignation. I then explain what we should take away from the situation, rather than indignation or resentment.

Why Did the Media and the Public React As They Did?

What might have been a private and isolated incident escalated very quickly into a national debate about whether this particular person should have acted in a particular way in this circumstance. Just as there is no surefire way to predict what YouTube videos or snarkily commented photographs on Facebook will go viral, it is difficult, if not impossible, to know in advance when a relatively mundane local news story will catch the attention of the nation. However, hindsight may give us some clues.

Here, I believe a large part of the reason the story garnered so much attention was that everyone could relate to it. The woman who died was us; she was our sister; our mother; our grandmother. On the one hand, we want to believe that if we or someone we love is in distress or dying, that a passerby will stop and help. That is why we as a society have passed Good Samaritan laws, why we reward altruistic behavior. Particularly when a passerby is someone is not only able to help, but trained to render the kind of aid needed, we almost cannot help the passionate belief that this person should stop and give assistance to someone in need.

Yet on the other hand, many of us fear an “approximate death.” That is, ending up in a vegetative state, artificially sustained by machines or devices. When given the option, most people would opt for a peaceful and natural death over a life dependent on a ventilator. Some people who have responded positively to the staff member’s inaction argue that CPR performed on an 87-year-old woman would likely have worsened her quality of life had she survived at all, due to the traumatic nature of the procedure.

A quick snapshot of the news story, as many people likely gleaned from news sources, prompted people’s strong emotional reactions. The common responses could be characterized as: “How could a nurse refuse to perform CPR to save this woman’s life?” and “Of course it was better for the nurse to hold the 87-year-old woman’s hand as she died rather than perform CPR on her.”

Instead of Indignation, We Should Discuss End-of-Life Considerations With Others

According to some sources, the family of the woman who died said that she had wanted to die naturally. However, the facility did not have a Do Not Resuscitate order (DNR) on file for her. It is likely, however, that a facility that has as its express policy not to provide any medical care, including CPR, must inform prospective residents of this policy. Indeed, because it lacks any infrastructure of medical care provision, most residents would likely presume that they would not receive medical care from the staff at this facility (though some have questioned this type of policy when nursing staff is available).

Everyone should make clear to their loved ones and friends and family their end-of-life wishes. It is not a pleasant topic to bring up, but it can help prevent very difficult situations. An advance health care directive, also known as a living will, is a legal document with instructions as to what actions should be taken (and should not be taken) for their health if the person becomes unable to make decisions due to illness or incapacity. Similarly, a power of attorney allows a person to appoint someone to make decisions on his or her behalf if he is unable to make them for himself or herself.

When a person has clearly and unambiguously expressed his or her wishes for end of life care and decisions, it is much more likely that their wishes can be properly fulfilled if the question arises. When Facebook announced that it was going to add a feature to allow users to declare themselves organ donors on their profile, the announcement drew significant attention and raised awareness of the need for organ donation. Although it likely cannot add a similar feature for end-of-life instructions, there are certainly comparable ways for it or other prominent companies to promote awareness.

Until we have an open and documented conversation about how our end-of-life decisions should be made, we risk putting our family and friends in an untenable position of guessing in a life or death situation, and stories like this one will continue to make headlines.

Posted in: Health Law