San Antonio Living Will Case Sparks Law Change in Texas

There’s a very interesting case out of San Antonio, Texas that I have been trying to find enough time to write about. It involves an issue that Mike Morse and I discussed a while back concerning living wills, durable powers of attorney, and DNR orders. Here is the news video about the case.

There are two big questions that I see:

FIRST: Were EMS personnel justified in stopping care based on a Living Will? That seems to have been answered in the affirmative in so far as the state EMS authorities are concerned. No personnel were disciplined.

Take a look at this Texas statute that was in effect at the time of the incident:

TEX HS. CODE ANN. § 166.102 (b) When responding to a call for assistance, emergency medical services personnel shall honor only a properly executed or issued out-of-hospital DNR order or prescribed DNR identification device in accordance with this subchapter.

Many states draw distinctions between DNR orders and other forms of advanced directives particularly when it comes to EMS personnel. Some specifically provide immunity protection to EMS personnel who act in good faith reliance on a DNR Order, but not a Living Will or Durable Power of Attorney. Keep in mind, the specifics vary greatly from state to state but living wills and powers of attorney are legal documents.

SECOND: Assuming EMS personnel were justified in stopping care, were they acting lawfully when they stopped a family member from administering care? Could they have done so if it was an “out-of-hospital DNR order”? This is one we need to think through. A family member who wants to start CPR can only do so much. Assuming they are successful in prolonging the patient’s viability through CPR, at some point they will need EMS/ALS assistance. Could the family summons another EMS provider, perhaps a private ambulance? Would that provider honor the same legal document or would they honor the family member’s request to provide aid? Quite a mess.

Fortunately Texas (who already had extensive laws on this subject) has addressed the situation to some extent by the legislature. Under a new law enacted in June, 2011 at the family’s request, EMS personnel may lawfully ignore advanced directives such as Living Wills or Durable Powers of Attorney.

Strangely the new law does not mandate (any more than the old law) that EMS personnel ignore the advanced directives, it just provides them with the formal option. Consider how the above language has been amended:

TEX HS. CODE ANN. § 166.102 (b) When responding to a call for assistance, emergency medical services personnel:

(1) shall honor only a properly executed or issued out-of-hospital DNR order or prescribed DNR identification device in accordance with this subchapter; and

(2) have no duty to review, examine, interpret, or honor a person ’s other written directive, including a written directive in the form prescribed by Section 166.033.

Perhaps the matter will be addressed through pre-hospital care protocols.  If anyone has additional insights – we would all appreciate it.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
x

Check Also

Burning Questions: NFPA Standards and Liability

Today’s burning question: Is it safe to say that compliance with NFPA 1710 is a recommendation but not law unless adopted? Answer: Despite the simplicity of your question, it defies a simple yes or no answer. The answer will also vary from state to state, so to get a more definitive answer you need to ask your local legal counsel to know if it applies in your state as a “law” or is simply a “recommendation."

Oklahoma Enacts Law to Allow EMS Transport on Fire Apparatus in Emergencies

The State of Oklahoma has amended the statutes governing the delivery of emergency medical services to allow the transport of patients on emergency vehicles that are not ambulances when approved by medical control. The law is a direct response to a case out of the Oklahoma City Fire Department that resulted in discipline to a company officer for transporting a child on an engine in 2020