Definition

Closed-chest cardiac massage for treatment of cardiopulmonary arrest was first described in 1960 by Kouwenhoven and colleagues, and enthusiastically embraced by the health care profession. Despite Kouwenhoven’s report of a 70% survival-to-discharge rate following cardiopulmonary resuscitation (CPR), subsequent studies revealed that survival rates were dismal. Concerns about universally applying CPR in the inpatient setting were fueled by rising costs of hospitalization and intensive care unit (ICU) treatment, and public concerns that not all postresuscitation lives were worth living.

Beginning in the 1970s, legal precedents (e.g., the cases of Karen Ann Quinlan and Nancy Cruzan) were established, and subsequently reaffirmed by the U.S. Supreme Court, that patients could refuse any medical treatments, including life-sustaining treatments, so long as they were of legal age and mentally competent to do so. Passage of the Patient Self-Determination Act of 1990 in the United States established federal law protecting the rights of patients to refuse life-sustaining treatments and threatening federal defunding of any medical institution that did not honor these rights ( Box 7.1 ).

Despite well-defined legal rights to refuse resuscitation, many physicians experience conflicts when patients who have do-not-resuscitate (DNR) orders present for anesthesia and surgery. Cardiopulmonary arrest and resuscitation measures have different medical implications in the operating room (OR) than in other hospital areas. Respiratory arrest on the hospital ward, for example, is a “defining event.” Immediate recognition and effective intervention, including possible intubation and mechanical ventilation, are needed to prevent death or permanent injury. Treatment of cardiac arrest may include cardiovascular pharmacologic support, direct current countershock, CPR, and mechanical circulatory support. When a patient has a DNR order without further specification, many patients and physicians expect that the directive prohibits many if not all of such interventions.

In the OR, however, elements of these interventions can represent a part of normal anesthetic care. Anesthetic agents can suppress respiration, requiring respiratory assistance up to and including intubation and mechanical ventilation. Common and predictable variations in hemodynamics can require administration of pharmacologic support, and indeed such interventions are in the very nature of anesthetic care.

Anesthesiologists present several common arguments for rescinding DNR orders in the operating room: (1) outcomes from CPR are more favorable in the OR than in other hospital locations; (2) anesthesia is “nothing but ongoing resuscitation,” and it cannot clearly be distinguished from other resuscitative measures; and (3) patients who have DNR orders should also forgo invasive procedures, because it does not make sense to offer invasive surgery to a patient who also wants to be allowed to die.

Outcomes from CPR remain poor, despite decades of efforts to improve overall survival. Survival-to-discharge of out-of-hospital cardiac arrest has been determined to be roughly 6%. Multiple studies demonstrate that less than half of patients survive initially following in-hospital cardiac arrest, and overall survival to discharge is 6% to 26.5%, although recent increases in survival are somewhat offset by a concomitant increase in percentage of survivors discharged to hospice or long-term care. Survival of in-hospital cardiac arrest is associated with a significant rate of substantial neurologic injury. In one study, about 42% of survivors overall experienced significant neurologic impairment.

Cardiac arrest in the noncardiac, nontrauma OR is a relatively rare event, occurring in around 3 in 10,000 anesthetics overall. When we look at outcomes of cardiac arrests that occur in the OR during noncardiac surgery, we find more favorable, yet still surprisingly consistent and grim, statistics. Approximately 60% of patients survive the first hour following cardiac arrest in the OR. At least one study found that 46% of immediate survivors (around 36% of the total) will die later in the hospitalization, often in the ICU. Only 37% of those who survive to discharge have “good” cerebral function. In short, cardiac arrest in the noncardiac surgery patient in the OR is accompanied by more favorable, albeit still poor, long-term outcomes than arrest elsewhere in the hospital. The most recent review by Kalkman of anesthesia-related cardiac arrest and CPR reports slightly better but still notably poor outcomes: immediate survival of about 41.6%, followed by 32% to 55.7% survival for 1 to 24 hours, followed by subsequent survival of 45.3% to 66.8% at follow-up after discharge. The authors of the review feel that this suggests a viable survival rate of about 25%. They did not determine the quality of survival in this group. We can conclude that survival after cardiac arrest in the OR is better than out-of-hospital cardiac arrest, or even than cardiac arrest experienced in other areas of the hospital, but is still surprisingly poor.

The statement that anesthesia is “nothing but ongoing resuscitation,” however, is very difficult to defend because it depends on a manipulative and misleading use of the term “resuscitation.” Physicians and patients use the word “resuscitation” to describe very different events, and physicians use the term variously to describe significantly different circumstances with different implications. “Fluid resuscitation” means something very different than CPR, for example. Stating that anesthesia is “nothing but resuscitation” wrongfully implies that anesthesia care is an uncontrolled, near-death experience from which anesthesiologists are constantly rescuing their patients, and that cardiac arrest is a common occurrence during anesthesia, such that CPR is a normative procedure for most anesthetics, instead of the extreme and rare complication that anesthesiologists strive diligently to avoid.

Patients generally refer to a very specific event when they elect DNR orders—the event of complete cardiac arrest—and often describe it clearly as “when my heart stops.” They perceive that cardiac arrest is usually a terminal event from which the likelihood of recovery to previous function is limited, and they are correct. We know that the majority of patients suffering cardiac arrest in the OR in fact do not survive to discharge, and that many are significantly injured even when they do.

Finally, it is not appropriate to deny patients treatments that may reasonably improve their remaining quality of life, even if that remaining life is short, simply because they will not agree to other invasive and potentially injurious procedures (e.g., CPR) that are rarely needed. To do so not only goes against the basic principle of medicine to ease suffering, but it is coercive.

Ethical Considerations

Basic principles of Western medical ethics are to respect and promote patient autonomy, to “do good” (beneficence), and “avoid harm” (nonmaleficence). Gone are the “old days” in which medical ethics dictated that preservation of life was the preeminent ethical principle and that the physician had a duty to dictate to patients the treatments that would be most likely to accomplish that goal.

The principle of respect for patient autonomy requires that, once a sufficiently informed and competent patient is apprised of the relevant information, his or her decision regarding consent or refusal of various treatments should be followed. The fact that outcomes for CPR in the OR differ significantly from other scenarios warrants review with the patient to determine the patient’s decision in light of the special circumstances of the OR. However, the decision to forgo resuscitative care still rests with the patient. Physician perceptions about resuscitation can be affected by personal values, unrealistic expectations, interpersonal conflicts, unconscious motivations, fear of professional failure, and fear of legal retribution—all of which have little to do with the patient’s needs. Ethically as well as legally, only the patient or someone whom the patient has designated to speak for him or her can consent to or refuse treatments.

Legal Considerations

Although the legal rights of patients to make health care decisions including refusal or cessation of life-sustaining care have long been established, studies have repeatedly shown that physicians understand advance directives poorly and that physician practice is inconsistent with advance directives in over half of cases.

Many physicians are unaware that federal law protects a patient’s right to refuse life-sustaining care, and even fewer appreciate that resuscitation despite the presence of a patient’s advance directive not to resuscitate may place them in legal peril. In some cases, courts have found that the plaintiffs had grounds to seek prosecution for battery, which is a harmful or offensive unconsented touching that occurs directly or indirectly. Note that “battery” does not require that there be any direct hostility or even physical injury involved. Also note that battery is a crime.

“Wrongful living” has been proposed as a tort for cases in which a patient’s recognized right to refuse treatment has been violated when treatment results in “the unwanted extension of life.” The legal concept that the plaintiff in such cases may be entitled to damages has been slow to gain traction, due to the reluctance of courts to find continued life “a compensable harm”; however, the idea is recently attaining new consideration. In addition, compliance with the federal Patient Self-Determination Act of 1990 (see also Chapter 24 ) is a condition of participation in the federal Medicare and Medicaid Programs (see Box 7.1 ). A health care facility that fails to comply with the law’s requirements can be penalized and/or excluded from Medicare and Medicaid. Over the last 10 years, at least two health care facilities have had judgments against them from the Centers for Medicare and Medicaid Services. Administrative law judges have upheld state disciplinary board sanctions of medical providers who fail to comply with patient’s advance directives, such as resuscitating patients with DNR orders, up to and including revocation of the practitioner’s medical license. Furthermore, courts have decided that patients may be entitled to recover medical expenses arising from such unwanted treatments. In 2011 in Callsion v. Hillcrest Healthcare System in Oklahoma, the courts refused to dismiss a complaint of battery in a case in which a hospital continued intubation of a patient in violation of his advance directive and family’s wishes. The hospital later settled out of court. Several other court cases suggest that, in the face of a validly executed DNR order, plaintiffs may have constitutional grounds to receive relief. Finally, in 2006 the American Civil Liberties Union brought suit against an orthopedic surgery center that required patients to sign a document acknowledging that the facility “does not honor requests for ‘Do Not Resuscitate’ status and/or Advance Directives or Living Wills.” The case was ultimately settled out of court, but the implication is that there is a substantial legal risk when physicians use coercive tactics (e.g., denial of anesthesia and surgery) against patients who have DNR orders and other advance directives. In addition, substantial monetary awards, although uncommon, have been made in cases where patients’ advance directives, including DNR orders, have been violated. This was exemplified in the case of Brenda Young, a woman who suffered severe neurologic injury after an unwanted resuscitation, whose family was awarded $16.5 million (later reduced to $1.4 million on appeal).

In 1993 the American Society of Anesthesiologists developed and published Ethical Guidelines for Management of Patients with Do-Not-Resuscitate Orders and Other Orders Limiting Medical Treatments. They advise anesthesiologists to have informed discussions with patients or their decision makers regarding outcomes of treatments in the OR, and to respect patient decisions regarding such treatments. Providers who cannot for personal reasons respect patient wishes should withdraw from providing care and find a substitute provider who can. In 1994 the American College of Surgeons and the Association of Operating Room Nurses followed suit, paraphrasing the ASA guidelines. In addition, the Joint Commission requires that appropriate policies and procedures be implemented that maximize respect for patient wishes regarding refusal of resuscitation.

Recognition

It is important to identify patients coming to the OR who have DNR orders; the presence of advance directives should be a standard question for all patients presenting for anesthesia and surgery. Every anesthesia practice should have procedures and policies in place to define how DNR orders in the OR will be handled. These policies must be consistent with ethical standards of care and with law, bearing in mind that federal law, legal precedent, and professional guidelines support patients’ rights to have their DNR order followed even in the OR, after the patient and/or their decision makers are properly informed of the outcomes.

Resolution

In our case scenario, we are confronted with a clearly competent patient who wishes to have her DNR order followed in the OR. Unfortunately, the providers erroneously believe that they can demand that the patient rescind her order, and even resort to coercion (the threat to deny her life-altering surgery) to accomplish their aims. In coercing the patient to rescind her order against her will, they violated a primary principle in medical ethics to respect the decision of an autonomous patient. Not only is the DNR rescission invalid ethically and legally, but the surgical consent itself is called into question, because consent for some potential measures in the OR was coerced.

This situation should not be confused with refusing to perform a procedure in which a patient refusal literally renders the procedure either below any standard of care or impossible to perform. The provider may reasonably refuse to proceed with a thoracotomy, for example, if the patient refuses an intubation that is a necessary and elementary part of the surgery each time it is performed.

This case is all the more tragic in that the physicians are insisting on the right to perform a procedure that is extremely unlikely to benefit the patient and has a high likelihood of producing great harm. The patient actually has made a realistic appraisal of her outcomes, should CPR be necessary: Studies suggest that she would have minimal chance of survival to discharge and, if she did survive, would likely suffer neurologic injuries that would end her independence.

Ethical principles require physicians to respect patient autonomy in medical decision making. Legal precedents up to and including decisions by the U.S. Supreme Court have consistently iterated that patients have the legal right to refuse any medical treatments, including life-sustaining ones. In this case an appropriate course of action would have been for the anesthesiologist and surgeon to discuss with the patient the more favorable outcomes of CPR in the OR and determine what measures, if any, the patient would accept for treatment if her “heart stops.” After such a discussion, if the patient wishes to have her DNR continued, this should be documented in the chart. If the patient decides to suspend her DNR order, plans should be made to reinstate the order after surgery (usually after discharge from the postanesthesia care unit).