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Abstract

Background

Laws influence human behavior, including practitioners’ behavior, and legal nudges may affect bedside patient care practices. Do-not-resuscitate (DNR) practices are one such example. Ensuring that practitioners order DNR for patients who request it is a crucial part of providing quality end-of-life care. On April 1, 2018, in the state of Texas, Senate Bill 11 (SB 11) took effect. This law did not make DNR orders illegal, but it constrained and complicated the process for issuing them. This study aimed to determine if DNR order utilization decreased after the law’s implementation.

Methods

The authors conducted a retrospective cohort chart review of all adult patients admitted to a single academic urban tertiary care hospital in Texas before and after the state’s DNR law went into effect. The authors reviewed code status orders for the 5426 sickest patients. The primary outcome is the proportion of patients who had DNR orders in effect at the end of their hospitalizations.

Results

Implementation of the DNR law’s cumbersome documentation and witnessing requirements correlated with a substantial decline in DNR orders for patients at the highest risk of dying from chronic or severe illness.

Conclusion

This is the first study the authors know of that examines whether DNR usage declined after implementation of a DNR law. A troubling implication of this study is that the Texas law has had a chilling effect on doctors’ willingness and ability to place medically and ethically appropriate DNR orders and has threatened the right of patients with serious illness to forgo cardiopulmonary resuscitation.

Introduction

Respecting patients’ autonomous wishes and avoiding unnecessary harm are the pillars of providing ethical end-of-life care. A common and essential practice for patients with serious illness includes determining and honoring a patient’s preferred code status or whether to attempt resuscitation in the event of cardiopulmonary arrest. Although few patients report conversations about code status with their primary care practitioners,1 surveys show that, when hospitalized, most patients want to discuss their wishes regarding code status with their practitioners.2 Patients who choose do-not-resuscitate (DNR) often do so on the basis of practitioners’ education on their health condition and the mechanics of undergoing or forgoing cardiopulmonary resuscitation (CPR),1 and they cite concerns for pain, quality of life before and after CPR, burdens on family members, and being on artificial life support when death is inevitable.3 Troublingly, some studies demonstrate that practitioners and patients frequently misunderstand each other when engaging in shared decision making about code status,4 and patients’ wishes regarding code status are often inconsistently communicated to other practitioners.5,6
Practitioners, hospital systems, information technology specialists, and policy makers continue to try to remedy communication problems related to code status and thereby improve health care teams’ ability to honor patients’ wishes at the end of life. However, some public commentators, including Texas legislators and the advocacy group Texas Right to Life, have claimed that doctors place so-called “unilateral” or “secret” DNR orders without patients’ (or their surrogates’) consent.7 Adding checks on DNR orders was a legislative priority for Texas Governor Greg Abbott in 2016, who explained, “As leaders of this state, we have a responsibility to protect life at all stages.”7 Ethicists and practitioners in Texas and elsewhere have argued that allegations of this practice are unfounded and not supported by evidence.7,8 Nevertheless, in 2018, the state of Texas implemented a law known as Senate Bill 11. This law requires that only “the attending physician” can issue a DNR order and, before ordering DNR, capacitated patients must either sign a form consenting to DNR, or 2 witnesses, including a person who is neither a family member nor a member of the health care team, must witness the patient’s verbal request for DNR. This is the only medical intervention in Texas for which opting out requires a signature or disclosure to strangers. Ordering doctors who fail to comply are subject to 1 year in jail, loss of licensure, and a $5000 penalty.9,10
Bruce et al argue that DNR laws such as Texas Senate Bill 11 are a remedy for a nonexistent problem.8 In this literature review, the authors found no evidence that practitioners regularly place unilateral or secret DNR orders in the current era of health care in the United States. Prior to public conversations, Supreme Court decisions, and federal and state legislation in the 1980s and 1990s, practitioners were indeed exposed for withholding CPR attempts without documenting hospitalized patients’ consent, and without even explicitly ordering DNR, instead relying on secretive “purple dots,” “chalkboard DNRs,” or “slow codes.”11 As consensus developed on the ethical, legal, and clinical contours of appropriate end-of-life practices, state laws created mechanisms for honoring informed consent related to end-of-life care in the hospital setting, including advance directives and DNR orders.
In 1988, for example, New York became the first state to legislate the steps practitioners must take to obtain and document hospitalized patients’ consent to withholding CPR. Three studies retrospectively examined whether the actual practice of in-hospital resuscitation changed after passage of New York’s law. All those studies found that New York’s law led to improvements in the explicit ordering of DNR, but none of the studies showed a substantial increase or decrease in the frequency of CPR utilization.12–14 This evidence suggests that New York’s law did not lead to CPR being performed more frequently but, rather, led to better communication regarding which patients declined CPR. These studies also demonstrated that CPR attempts substantially increased in the absence of an explicit DNR order. As Kamer et al argued, the New York law’s influence on improving the explicit ordering of DNR likely improved communication between patients, practitioners, and nurses and thus enhanced ethical practice.13
In the 3 decades since New York passed its DNR law, the culture of American hospitals has shifted, such that today, every hospitalized patient is presumed to consent to CPR unless DNR has been validly ordered. As a result of this cultural shift, nearly all inpatients who die without CPR attempts have explicit DNR orders in place at the time of death. In the current era, the presumption of consent to CPR, also termed “full code” status, has become the presumed or default code status unless practitioners explicitly order otherwise.15
In light of this historical shift in hospital culture, it is unclear whether requiring additional documentation or witnessing of patients’ consent to DNR is even necessary, and some stakeholders worry that making ordering DNR more burdensome may lead to practitioners ordering DNR less often than is medically and ethically appropriate.8,16
Choice architecture is the practice of influencing choice by changing the manner in which options are framed to decision makers.17 Studies of choice architecture in health care show that framing a particular option as the default can greatly influence patients’ and practitioners’ likelihood of choosing it.18 Any law that reinforces the framing of full code as the default and requires patients explicitly to opt out—by signing forms or repeating verbal instructions with witnesses present—might be expected to result in fewer patients opting out of the default. Even the language of DNR implies successful outcomes for resuscitation, which has prompted a shift in many health systems toward phrases such as “do not attempt resuscitation” and “allow natural death.”19 Furthermore, studies show that streamlining order-entry encourages practitioners to implement interventions.20 Thus, complicating the process for ordering DNR might result in decreased utilization. Whether choice architecture influences DNR utilization is an emerging area of inquiry; this study aims to contribute by investigating whether the implementation of a law constraining practitioners’ practice of ordering DNR, such as Texas’s Senate Bill 11, might lead to decreased DNR order utilization. Answering this question is critically important because if legislative or policy mandates make it too difficult for practitioners to place medically and ethically appropriate DNR orders, this may unacceptably risk harm to the seriously ill and compromise respect for patient autonomy at the end of life.

Methods

The authors conducted a retrospective cohort chart review of all adult patients admitted to a single academic urban tertiary care hospital in Texas before and after the state’s DNR law went into effect. The authors included patients if they were 18 years of age or older on the date of admission. The authors isolated the analysis to the sickest patients by including only patients whose hospitalizations were coded with the highest score on both the Severity of Illness and Risk of Mortality indices. The authors excluded patients who were known to be pregnant at the time of hospital admission because Texas law prohibits pregnant patients from electing DNR.10
The Texas DNR law went into effect on April 1, 2018. The authors studied 2 cohorts: The first included patients admitted during the 3 12-month periods immediately preceding the date the Texas DNR law went into effect, ie, patients admitted between April 1, 2015, and March 31, 2018. The second cohort included patients admitted during the 12-month period immediately following the law’s implementation, April 1, 2018, through March 31, 2019. As expected, several patients were admitted more than once over the 48-month study period; when repeat admissions for the same patient occurred, the authors included only the patient’s most recent hospitalization in this analysis.
Through the study institution’s medical information data analysis system, which automatically captures the medical coding data used to classify patients’ Severity of Illness and Risk of Mortality for each hospitalization, the authors obtained the list of all medical record numbers for the 5426 unique patients who met the inclusion criteria. The authors used the study institution’s electronic medical record system to capture all the electronic code status orders entered during each patient’s hospitalization.
For the analysis, the authors defined full code as any code status order that includes the specification that chest compressions are to be attempted in the event of cardiac arrest. Because any patient lacking a specific code status order is assumed to be full code and treated accordingly in the study institution, the authors also counted as full code any patients lacking a specific code status order. Given that the wording of the order-entry names and the definitions for the various types of DNR orders have evolved at the study institution over the course of the study period, the authors defined DNR as any code status order specifying that chest compressions are not to be attempted in the event of cardiac arrest.
It is not uncommon among a population of chronically or extremely ill hospitalized patients for a given patient’s code status order to change during the course of their hospitalization, ie, a patient may initially choose to be full code and later in the hospitalization decide they want their practitioner to order DNR. At the study institution, the most recent code status order guides the care of the patient, thus the authors included only each patient’s most recent code status order (the order that was in effect at the time of each patient’s death or hospital discharge) in this analysis. The primary outcome the authors examined is the proportion of patients who had DNR in effect at the end of their hospitalizations.
Among the sickest adult patients admitted to the study institution during the 3 years immediately preceding the implementation of Texas’s DNR law, the proportion of patients who had DNR in effect at the end of their hospitalizations fluctuated between 38.9% and 42.2%, for an average of 40.4% over the 3 years prior to implementation of the law. Using Sealed Envelope’s power calculator for a binary outcome superiority trial (www.sealedenvelope.com), the authors calculated that for this study to have 80% power to detect a drop in the proportion of patients with DNR orders from 40% to 35% (an absolute decrease of 5%, a relative decrease of 13%), the authors would need 1469 patients per arm, or 2938 patients total (assuming an alpha error of 5%).
Secondary outcomes included the proportions of patients who had palliative care consults during their hospitalizations, who died during their hospitalizations, or who were discharged from their hospitalizations to hospice care. There were no data for palliative care consults for the April 2015–March 2016 and the April 2016–March 2017 periods, so the authors were able to analyze only palliative care consult data from the years immediately before (April 2017–March 2018) and immediately after (April 2018–March 2019) the law’s implementation. The authors used medical coding data to determine the proportion of patients who died during their hospitalizations and the proportion who were discharged to hospice care. Because the authors used the study institution’s medical information data analysis system to generate the list of patients meeting this study’s inclusion criteria, any patients whose charts were miscoded or not included in the system would not have been counted in this analysis.
The study institution operates a nonautomated, consultation-only interdisciplinary palliative care consultation service that assists with symptom management and decisional support for shared decision making. The service is available for any patient with serious or life-threatening illness, whether or not they are pursuing life-sustaining treatment. In the latter stages of this study, the institution also established a general inpatient hospice service wherein imminently dying patients focused only on comfort could be administratively discharged from the hospital to the care of a contracted hospice agency while remaining physically within the walls of the hospital. Whether patients are discharged to general inpatient hospice or discharged home to the care of a home hospice agency, Medicare hospice eligibility requires a prognosis of 6 months or less if the terminal condition runs its usual course. Most hospice patients prefer a DNR code status, although Medicare (and home agencies, generally) does not require DNR status for hospice eligibility. In this study, neither palliative care consultation nor discharge to hospice necessarily entailed having a DNR order.

Results

DNR order utilization at the study institution declined among the sickest inpatients after the DNR law went into effect. During the 3 years immediately preceding the law’s implementation, a total of 3664 unique patients’ hospitalizations were coded as most severe on both the Severity of Illness and Risk of Mortality indices, and 1479 (40.4%) of these sickest patients had DNR orders in effect at the end of their hospitalizations. In the year immediately following the law’s implementation, 1762 patients meeting the inclusion criteria were hospitalized, and 640 (36.3%) of these had DNR in effect at the end of their hospitalizations. The authors used chi-square testing with Yates correction based on a two-tailed alpha to analyze the results for the primary outcome: Comparing the pre-law cohort’s DNR utilization to the post-law cohort’s utilization resulted in a p value of 0.005. For the secondary outcomes, chi-square testing with Yates correction based on a two-tailed alpha also showed significant decreases in the proportion of patients who died during their hospitalizations and in the proportion of patients who had palliative care consults, whereas the proportion of patients discharged to hospice care increased (Table 1).
Table 1: Do-not-resuscitate utilization (n [%]) before and after do-not-resuscitate law implementation
OutcomePre-DNR law cohort (N = 3664)Post-DNR law cohort (N = 1762)Comparison (p value)
Patients with full code order2185 (59.6)1122 (63.6)0.005
Patients with DNR order1479 (40.4)640 (36.3)0.005
In-hospital mortality1220 (33.3)394 (22.4)≤ 0.00001
Palliative care consult422 (31.8)a457 (25.9)0.0004
Discharged with hospice213 (5.8)186 (10.6)≤ 0.00001
a
Data for this outcome was available for only the April 2017–March 2018 period (n = 1327).
DNR, do-not-resuscitate.

Discussion

Any policy makers contemplating legal constraints on practitioners’ bedside clinical practices ought also to consider whether and to what extent such legal changes might lead to chilling effects on practitioners’ ability to provide medically and ethically appropriate patient care. In the wake of one state implementing a law constraining physicians’ DNR ordering practice, several authors have argued that the Texas law is ethically problematic and is likely to result in negative consequences for patient care.8,16,21 Some have also argued that one of the primary intentions in passing the law was to decrease the use of DNR orders,8 a perspective supported by the governor’s stated goal of “protecting life at all stages.” Perhaps the allegation of widespread unilateral or secret DNR orders is a fig leaf for an underlying hostility toward DNR orders, as if such orders disregard the sanctity of life or are tantamount to euthanasia.
In the current era of American hospital care, this is the first study of which the authors are aware that examines whether DNR orders dropped following the implementation of a law affecting the DNR ordering process. The authors did find evidence of decreased DNR use among the sickest patients admitted to the study institution after the law took effect. The retrospective cohort design of this study renders it impossible to conclude whether this state’s DNR law caused the decrease in DNR utilization the authors observed. However, one plausible explanation for these findings is that legal restrictions, threat of criminal penalties, and possible loss of licensure may have had a chilling effect on physicians’ willingness to place medically and ethically appropriate DNR orders for inpatients.
Of course, one might also entertain the opposite interpretation: Those who worry that doctors were putting in ethically inappropriate or so-called “unilateral DNR” orders prior to the law might interpret these findings as proving that the law succeeded in its intention, as if any doctors unilaterally ordering DNR without patients’ consent no longer dared do so after the law’s passage. However, the authors resist this interpretation of these findings. First, there is no published data to support a present-day practice of placing unilateral or secret DNR orders for capacitated patients. Second, these results also show a significant increase in patients discharging to hospice care over the study period, and there is good reason to believe that for most patients enrolling in hospice care, DNR is also the medically and ethically appropriate code status. Given the post-law cohort’s increase in hospice enrollment, the authors would have expected to find a concordant increase in DNR utilization, yet DNR utilization trended in the opposite direction.
There are other possible interpretations of the observed findings. Perhaps practitioners are less likely to initiate code status discussions and less likely to recommend DNR when they perceive patients to be at lower risk of cardiopulmonary arrest. It is possible DNR utilization dropped over the study period because the patients admitted after the law’s implementation might not have been quite as sick as patients admitted before the law. There is some evidence to support this interpretation in the findings as well. Although the authors included only hospitalizations coded as most severe on the Severity of Illness and Risk of Mortality indices, the proportion of patients who died during their hospitalization was substantially lower in the post-law cohort, suggesting that either the study institutions’ life-saving care of patients dramatically improved or that the medical coding scores began capturing patients who were not quite as severely ill as those in the pre-law cohort.
A third possibility is that hospital mortality dropped because many patients who would previously have died during their hospitalizations instead died after administratively discharging to general inpatient hospice. Alternatively, some might argue that if fewer patients have DNR orders, more patients will receive CPR, thus more patients will survive, and thus hospital mortality will drop. In the absence of a randomized controlled trial, it may prove very challenging to tease apart the relationship between the drop in hospital mortality and the drop in DNR order utilization the authors observed. This relationship could be explored in future studies by examining whether in-hospital CPR utilization increased in proportion to DNR utilization decrease, but that data was not available for this analysis.
Another interpretation of the findings could be that the use of DNR decreased at the study institution in the wake of the law, not as a result of the law’s implementation, but, rather, as a result of reduced penetrance of palliative care consultation among the sickest patients. Although the absolute number of palliative care consults was higher in the year following the law’s implementation compared with the year preceding it, palliative care saw a lower proportion of inpatients after the law compared with before. Furthermore, the absolute decrease in palliative care penetrance (5.9%) is comparable to the decrease in DNR utilization over the same study period (4.1%), so maybe when the palliative care team is not guiding as many shared decision-making discussions with patients and families, DNR order utilization drops as well.
Another possible explanation for the findings lies in the fact that the proportion of patients with DNR, like most other patient-centered outcomes, fluctuates slightly from year to year, as the data from the 3 years before the law’s implementation show. Perhaps the decrease in DNR utilization in the year after the law’s implementation reflects noise rather than signal; studying the DNR utilization trend in subsequent years may shed light on whether utilization continues to trend low in the wake of the law.
However, despite all these possible interpretations for these findings, the authors suspect that the most likely explanation for the decrease the authors observed in DNR utilization is that patients and practitioners who engage in shared decision making about code status are susceptible to alterations in choice architecture. Anesi and Halpern have argued that choice architecture which frames full code as the default code status has led to expansion of the use of CPR to populations of chronically or even terminally ill patients.22 To address this ethically troubling evolution of full code as the default code status, Anesi and Halpern suggest “bottom-up” approaches, such as coaching individual practitioners on how to frame code status discussions depending on the appropriateness of attempting CPR to each individual patient’s clinical situation. They argue persuasively that such bottom-up nudges better accommodate medical nuance and are thus more ethically acceptable than more heavy-handed “top-down” approaches, such as sweeping legislative or policy mandates.22This study’s results buttress their argument by demonstrating that a state law that reinforced the powerful framing of full code as the default, and which increased the hurdles patients and practitioners must navigate to opt out of the default, may be making it too challenging or threatening for them to enact what would otherwise be medically and ethically appropriate DNR orders. This implication should worry all who care about respecting patients’ autonomous wishes at the end of life. Alarmingly, this template for legislative control or nudging could also be applied to other medical interventions—such as artificial nutrition, blood products, antibiotics, anticoagulants, chemotherapy, dialysis, or surgery—where legislators could invoke nonexistent practitioner secrecy and the “protection of life” to require signatures or witnesses for patients to opt out.
The limitations of this study include its retrospective cohort design, the results of which speak only to whether implementation of the Texas DNR law correlates with changes in DNR order utilization. The authors examined DNR utilization at only a single academic urban tertiary care hospital in Texas; other institutions in the state may have implemented the law slightly differently and may have had different experiences that these findings may not reflect. The authors were not able to examine patient data at a sufficiently granular level to conduct sensitivity analyses based on various patient demographics, but further study of these factors may elucidate these findings.
Finally, this study sought to answer only the question of whether DNR utilization dropped after the law took effect; it did not address the law’s many other ethically troubling implications, such as the witness requirement’s impact on patient privacy or the degree to which the law might undermine the doctor–patient therapeutic alliance.21 For most seriously ill patients, code status determination is fraught with complex emotional and family dynamics wherein accepting one’s prognosis and the limits of available treatments can feel like losing hope or giving up. Requiring a signature or disclosure in front of strangers may add to the sense of shame, stigma, and surrender for a very personal and delicate decision.23 And, there may be troubling stories to tell for patients who received CPR after they expressed their wishes but before the DNR could be properly issued in accordance with the Texas law. Unwanted CPR brings an unnecessary risk of physical harm24 and precludes the possibility of a peaceful passing. For practitioners, there may be troubling outcomes for those who feel pressured to deliver unwanted treatment and who feel complicit in a system that treats patient requests and physician orders for DNR with hostility.25 Complicity may threaten practitioners and nurse integrity, leading to moral injury and burnout.26,27 Further qualitative research might examine the lived experience of patients and practitioners as they try to navigate how best to honor patients’ wishes at the end of life within the mandates of this state law.
In summary, this is the first study of which the authors are aware that assessed whether DNR utilization dropped after a state implemented a law constraining practitioners’ process of ordering DNR, and these results show that it did. One troubling interpretation of these results is that the law may have had a chilling effect on practitioners’ willingness and ability to place DNR orders—orders that are key to respecting patients’ values and preferences at the end of life.

Acknowledgments

We thank Carmen G Sanchez, MHA, BBA; Kyle Kozlovsky, MS; Dallas Jacobson, CRCR; Marcos Restrepo, MD, MSc, PhD.

Footnote

Author Contributions
All authors assisted in study design, analysis, and manuscript preparation. Jason Morrow, MD, PhD, FAAHPM, and Carolyn W April, MD, PhD, also participated in data collection. Acknowledgments listed at the end of the manuscript are for persons who made contributions but were not co-authors.

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Information & Authors

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Published In

cover image The Permanente Journal
The Permanente Journal
Volume 26Number 3September 14, 2022
Pages: 46 - 52
PubMed: 35984968

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Keywords:

  1. Do-Not-Resuscitate (DNR)
  2. choice architecture
  3. “nudges”
  4. law
  5. end-of-life care
  6. ethics
  7. bioethics
  8. autonomy
  9. CPR
  10. palliative care
  11. hospice

Authors

Affiliations

Carolyn W April, MD, PhD
Palliative Care Physician, Centura Health, Colorado Springs, CO, USA
Jason Morrow, MD, PhD, FAAHPM [email protected]
Division of Geriatrics, Gerontology, and Palliative Medicine, and Associate Director for Ethics, Center for Medical Humanities & Ethics, UT Health San Antonio, San Antonio, TX, USA
Michael D April, MD, PhD
Uniformed Services University of the Health Sciences, Bethesda, MD, USA

Notes

Jason Morrow, MD, PhD, FAAHPM [email protected]

Conflicts of Interest

None declared

Funding

None declared

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