A 70-year old man arrived at a Miami hospital. He was alone and unconscious, with no ID, a high blood-alcohol level and multiple chronic conditions. He also had a tattoo on his chest that read “Do Not Resuscitate,” along with his (assumed) signature. Despite treatment by hospital staff, the man continued to be incapable of making his own medical decisions.
Should the doctors honor the man’s Do Not Resuscitate (DNR) tattoo when it became clear that he would die without treatment?
Their first decision was not to honor the tattoo.
Their thinking was this: a tattoo is not a legal advance directive or medical order, and they were concerned about its validity – was the tattoo was a true expression of the patient’s wishes, or rather an impulsive acquisition (perhaps while intoxicated) and which he subsequently regretted? The medical team had discovered a case in the medical literature from 2012 in which a DNR tattoo was found not to represent the patient’s current wishes. It seemed more prudent to the doctors to not choose “an irreversible path when faced with uncertainty.” Nonetheless, the doctors felt ambivalent about their course of action.
Their next decision: they consulted a bioethics expert, who advised them to honor the DNR tattoo. The bioethicist’s thinking was this: the patient took such extraordinary measures to express himself that it is reasonable to assume that the tattoo does reflect his preferences. In fact, an out-of-hospital DNR for this patient was subsequently found and did, in fact, corroborate the tattoo’s instruction.
The doctors’ takeaway was this: “the tattoo “produced more confusion than clarity,” as they reported recently in The New England Journal of Medicine. This conclusion is not surprising, since unusual situations or unexpected information tend to slow down the process of care. Medical treatment, after all, is built around established protocols, routines, checklists and procedures designed to ensure consistent quality of care.
Other ethicists have also weighed in since this report was published. Legal scholar and bioethicist Thaddeus Pope, author of the Medical Futility Blog, agrees with the recommendation to honor the tattoo. He argues that when faced with incomplete information, doctors need to go with the best available evidence of preferences. “If we ignore evidence of patient wishes unless we are 100% confident of informed consent, we would have to ignore the overwhelming majority of treatment decisions and instructions,” Pope argues. In addition, regarding the reliability of the tattoo, he posits that we also don’t actually know the situation in which most patients complete advance care planning documents. Nancy Berlinger, ethics scholar at the Hastings Center, also agrees with honoring the tattoo, adding that she thinks it was wise to consult an ethicist.
We can glean a few lessons for clients from this interesting case:
- The most obvious one: Do complete a written advance care plan – an advance directive or POLST form.
- Do ensure that these documents are available immediately in an emergency.
- The least obvious takeaway: Do provide loved ones and doctors with additional materials about one’s wishes — even unusual or unorthodox ones — to supplement the legal advance directive. These could include a video message, additional documents or forms expressing goals of care, statements of wishes completed with online advance care planning tools, etc. Of course, the most important supplement – and really the foundation of everything else — is talking to loved ones about goals and wishes. By this I mean talking to them directly. Most advance care planning experts agree that these conversations are more important than a legal document (except in instances where loved ones are likely to disagree on the course of care or cannot be reached in an emergency).
This case of the DNR tattoo has garnered a great deal of attention in the popular media in the few weeks since it was reported. There’s a good chance that your clients have heard about it via USA Today, CNN, Fox News, the New York Times, Washington Post, the Wall Street Journal or your local media. It may serve as a good way to pique clients’ interest when introducing (or reintroducing) the importance of advance care planning and of keeping one’s health care wishes current and available.
Randi J. Siegel, MBA, is the President of DocuBank® (docubank.com), which ensures that the emergency information and healthcare directives of its 250,000+ enrollees are available 24/7/365 through the largest advance directives registry in the U.S., as well as access to an online safe for storage of digital assets and other vital documents. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. A member of the Philadelphia Estate Planning Council, the International Society of Advance Care Planning and the Coalition to Transform Advanced Care, Randi is active in health education and public engagement related to advance care planning/advance directives. She serves as Pennsylvania liaison to the National Healthcare Decisions Day initiative and as a board member of the Center for Advocacy for the Rights and Interests of the Elderly. Randi is an ongoing contributor to the Academy blog.
Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
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