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).
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 firstname.lastname@example.org.
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.