I recently became aware of a case study involving a termi­nally ill patient who had the words DO NOT RESUS­CI­TATE” tattooed across his chest. This case is so fasci­nating and has sparked such a large ethical debate that I am compelled to write about it in this quarter’s newsletter (I will refer to the tattoo at issue as the DNR tattoo” throughout this article).

The facts

To summa­rize the facts, as reported by several news outlets, the 70-year-old patient had presented to a Florida emergency depart­ment in an uncon­scious state with the inability to commu­ni­cate his wishes. He appar­ently had no identi­fi­ca­tion and the medical team had no way to reach his family members in an emergent fashion. When his providers saw the words DO NOT RESUS­CI­TATE” together with what appeared to be the patient’s signa­ture tattooed across his chest, they were faced with the diffi­cult decision of whether they should honor the patient’s apparent end-of-life direc­tive, or if they should disre­gard it and take the usual heroic measures to save the patient’s life, as they would do for any other patient who did not have a properly executed DNR, health care proxy or living will. 

Initially, the medical team chose to disre­gard the tattoo. However, they eventu­ally brought in an ethics team, who instructed the providers to honor the DNR tattoo. The medical team stopped taking heroic measures, and the patient died shortly thereafter. 

The legal landscape

In the November 2017 ANA New York Nurse Newsletter, I provided infor­ma­tion about patients’ advance direc­tives – health care proxies and living wills. These documents are typically created to express people’s wishes involving life-sustaining treat­ment, and should be used in the event that the person becomes incapac­i­tated or unable to express their wishes at the time care is being provided to them. 

To be properly executed and effec­tive, these documents should typically be signed by the patient in the presence of two (2) witnesses, whose names and, often, contact infor­ma­tion are provided on the documents. There are many reasons for having these documents properly witnessed, including to indicate that the person making the advanced direc­tive was of sound mind at the time of executing the document, that the person was not coerced or unduly influ­enced and to identify other individ­uals to contact in case a question arises regarding the validity of the patient’s directive.

Should the DNR tattoo’s message have been followed?

Patient advocacy is often at the top of a nurse’s list when providing patient care, as it should be. Following a patient’s wishes is certainly one of the most impor­tant forms of patient advocacy. While many medical providers would be quick to say that this type of tattoo should be followed, we need to dig deeper to deter­mine what is truly in the patient’s best interest. 

To me, the answer comes down to being able to suffi­ciently prove the patient’s true wishes. The courts have the job of balancing the impor­tance of upholding people’s wishes while protecting people from fraud and undue influ­ence. That is why many states, including New York, require people to go through certain formal­i­ties when creating documents such as wills, health care proxies, powers of attorney, etc. In New York, for instance, the courts do not recog­nize the validity of holographic” (handwritten) wills, except if made by a member of the US Armed Forces during his or her active duty. There­fore, courts in New York will gener­ally disre­gard a handwritten will, since it does not meet the required formalities. 

Also, unlike a typical health care proxy or living will, the DNR tattoo in this case does not include the names or attes­ta­tion of any witnesses and certainly was not notarized. The use of witnesses and notariza­tion are the usual, time-tested methods of proving that the person was of sound mind at the time he or she made the decision about his or her future health care needs. If there is ever a question as to the validity of the incapac­i­tated patient’s prior instruc­tion, a health care provider or court can ask the witnesses. In the case of the DNR tattoo, however, there were no identi­fi­able witnesses for the providers to ask. 

Another impor­tant consid­er­a­tion is that most legally enforce­able documents can be revoked by the person making them. For instance, if a person changes his or her mind about the wishes speci­fied in a living will, health care proxy or do not resus­ci­tate order, he or she can simply revoke that document and it will no longer be effec­tive. By contrast, it is much more diffi­cult to revoke” a tattoo – having a tattoo removed is a costly, painful, and time-consuming process. While those same facts may on one hand suggest the strength of the patient’s dedica­tion to having a partic­ular wish carried out, it also could be argued that the patient may have changed his mind and just didn’t have a chance to get the tattoo removed. We don’t know when the patient got the tattoo – it may have been a week before he presented, or it could have been many years or decades earlier. 

Since this tattoo does not have any of the tradi­tional safeguards, it raises impor­tant questions, such as: 1) Was the patient of sound mind when he got the tattoo? 2) Was the patient unduly influ­enced by someone who had an interest in his estate? 3) Was the tattoo made against his will? 4) Did the tattoo still accurately repre­sent the patient’s wishes at the time he presented? 

There is a presump­tion with properly executed documents following the required legal formal­i­ties that the patient’s wishes are accurately described in those documents, and there­fore should be carried out. Since none of those safeguards were present with this partic­ular patient’s tattoo, it is hard to deter­mine whether the tattoo’s message is enforce­able and binding. 

Impor­tantly, it has been reported that the medical facility searched for, and found, this partic­ular patient’s formally executed DNR, which had previ­ously been filed with the Florida Depart­ment of Health, before the ethics committee made the final decision to discon­tinue its life-sustaining treatment. 

What are we to do?

The best defin­i­tive answer I can give is that people should make their wishes known by using tradi­tional, properly executed and witnessed written documents, such as DNRs, living wills and health care proxies, which have been found by the courts to be valid. Medical providers should typically follow the direc­tions speci­fied in those documents. However, it would not be good practice for a medical provider to rely solely upon a patient’s tattoo, without the support of any legally valid documents, in making the decision to let a patient expire. 

As always, when a provider is unsure what to do, he or she should ask for guidance from a super­visor or other depart­ment leader. Nurses should also be familiar with their facil­i­ties’ internal policies and proce­dures with regard to the use of patients’ advance direc­tives. And if you ever find yourself facing some form of disci­pline, you should speak directly with an experi­enced attorney to discuss your options. 

Article origi­nally published in the February 2018 ANA — New York Nurse newsletter. Reprinted with permission. 


About the author

John A. Musac­chio is an associate attorney with the law firm Towne, Ryan & Partners, P.C., which has five offices in Upstate New York and a sixth office in Bennington, Vermont. In addition to defending nurses in profes­sional disci­pline matters, John also assists clients with estate planning, Medicaid planning, criminal and DWI defense, labor and employ­ment law, personal injury matters, real estate trans­ac­tions, business law and litiga­tion in all of these areas. He has been selected to the Upstate New York Super Lawyers Rising Stars list in 2015, 2016 and 2017. 

John serves on the New York State Bar Association’s Committee on Disability Rights, as Secre­tary of the Capital Region Italian American Bar Associ­a­tion and as Co-Chair of the New York State Trial Lawyers Associ­a­tion Young Lawyers Committee, Capital Region division. 

John can be reached by telephone at (518) 452‑1800 and by e‑mail at john.musacchio@townelaw.com.


Refer­ences

Emery, Gene, Tattooed wish for withholding treat­ment not good enough, doctors say,” Reuters News, December 4, 2017. 

Henderson, Cydney, Florida man’s Do Not Resus­ci­tate’ tattoo creates ethical dilemma for doctors” USA Today, December 5, 2017. 

Welch, Ashley, Man’s Do Not Resus­ci­tate’ tattoo leaves doctors debating whether to save his life,” CBS News, December 4, 2017.

DNR tattoo not a good idea
By Seth Rosen­berg, JD, MSW

There was recently a case in Florida involving a man who tattooed Do Not Resus­ci­tate” together with what appeared to be his signa­ture on his torso. That act has gener­ated a national debate over the suffi­ciency of the request. 

In Washington, that request would likely not be honored. There are several problems with the tattooed DNR. First, it really does not allow for changes to be made over time. For example, how would the person revoke the instruc­tion? Second, direc­tives in Washington state require either a doctor’s signa­ture (in the case of a POLST) or witness signa­tures and notariza­tion (in the case of a health care direc­tive.) Without those third-party signa­tures, a treating physi­cian would not know if the request is current, whether the person was of sound mind when he tattooed the order or whether the tattoo was freely requested. 

In conclu­sion, such a tattoo would likely only confuse issues of care once seen. It would likely not be effec­tive in getting what the client wants. 

Seth Rosen­berg, JD, MS.W., practices law in Seattle, with a focus on profes­sional licen­sure defense.