Q&A from VHCA/VCAL Northern District Meeting Regarding Advance Directives

Jonathan M. Sumrell, an Associate with Hancock, Daniel, Johnson & Nagle, P.C., recently presented at the VHCA Northern district meeting on legal implications and trends for Advance Directives.  Jonathan has compiled a list of Q&A's from the meeting.

  1. Is there any duty for a provider to search the Virginia Advance Health Care Directive Registry to see if a patient has uploaded an advance directive?  The Registry’s help desk indicated that you cannot search for advance directives by name.  Rather, you would need the individual’s registration number and their PIN.  This is the case even for providers.  As a result, we do not think there is any duty to search the registry absent the request to do so by the patient or the patient’s family or the facility being given the registration number and PIN.
  2. Is a physician protected from liability if she follows a patient’s advance directive?  Even if a physician is complying with a patient’s advance directive or the instructions of the patient’s health care agent she must still meet the relevant standard of care.  If the physician believes certain proposed treatment is not medically or ethically appropriate, she is not required to provide it.  However, she must inform the patient or the patient’s decision maker of that determination and transfer that patient to a physician willing to comply with the patient’s wishes.  Until that transfer occurs, the physician must provide life sustaining support requested by the patient or the patient’s decision maker.  Note that following the advance directive and the directives of the decision maker should insulate the physician from liability for assault/battery or lack of consent.
  3. Should a DNR Order automatically be entered in a patient’s record if the patient’s advance directive indicates the patient does not want resuscitation?  If a patient has indicated he does not wish to be resuscitated (i.e. a DNR), then those wishes should be followed.  As a word of caution, practitioners should ensure they carefully read the Advance Directive thoroughly and do not assume that because it is written on the template form that they automatically know the contents of the AD.  If, after examining the AD, it is clear that the patient wishes to be a DNR, the healthcare team should follow that wish.  However, it is always safest to follow-up with a charted Order by the physician to ensure that the AD is being followed, and that any related conversations with the family/patient are taken into account. 

DISCLAIMER: This information is for general educational purposes only.  It is presented with the understanding that neither the author nor Hancock, Daniel, Johnson & Nagle, P.C., is offering any legal or other professional services.  Because the law in many areas can change rapidly, this information can become outdated.  Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.  Under no circumstances will the author or Hancock, Daniel, Johnson & Nagle, P.C. be liable for any direct, indirect, or consequential damages resulting from the use of this material.