December 22, 1997
Bob W. Bailey, Chief Office of Emergency Medical Services Division of Facility Services Department of Health and Human Services 701 Barbour Drive Raleigh, North Carolina 276032008
Subject: Advisory Opinion; Do Not Resuscitate ("DNR") Orders; Liability of Emergency Medical Services ("EMS") Personnel Who Withhold Cardiopulmonary Resuscitation ("CPR") Pursuant to Model DNR Orders; N.C. Gen. Stat. §§ 32A-15 and -24; And N.C. 90-320 Through 322
Dear Mr. Bailey:
You have asked this office to give our opinion with respect to the following questions:
- (1)
- Whether EMS personnel who withhold CPR pursuant to the statutory part of the attached Model DNR Order are immune from liability for their actions.
- (2)
- Whether EMS personnel who withhold CPR pursuant to the common law part of the attached Model DNR Order are immune from liability for their actions.
ANALYSIS
I. The Model Statutory Form
The North Carolina General Assembly expressly recognized an individual’s right to refuse medical care when it enacted Article 3 of Chapter 32A and Article 23 of Chapter 90, respectively, of the North Carolina General Statutes. Article 3 of Chapter 32A states that:
The General Assembly recognizes as a matter of public policy the fundamental right of an individual to control the decisions relating to his or her medical care, and that this right may be exercised on behalf of the individual by an agent chosen by the individual. N.C. Gen. Stat. § 32A-15(a).
Likewise, Article 23 of Chapter 90 states that:
The General Assembly recognizes as a matter of public policy that an individual’s rights include the right to a peaceful and natural death and that a patient or his representative has the fundamental right to control the decisions relating to the rendering of his own medical care, including the decision to have extraordinary means withheld or withdrawn in instances of a terminal condition. N.C. Gen. Stat. § 90-320(a).
In order to facilitate the exercise of these rights, the General Assembly granted immunity to health care personnel who withhold extraordinary means pursuant the provisions of these Articles. The statutory part of the Model DNR Order comports with the requirements of both Article 3 of Chapter 32A and Article 23 of Chapter 90. Accordingly, EMS personnel who withold CPR pursuant to the statutory part of the attached Model DNR Order may avail themselves of the immunities provided by N.C. Gen. Stat. § 32A-24 and N.C. Gen. Stat. § § 90321 and -321.
II. The Model Common Law Form
EMS personnel who withhold CPR pursuant to the common law part of the attached Model DNR Order are not entitled to assert the statutory immunities contained in Article 3 of Chapter 32A and Article 23 of Chapter 90 because the model common law form is not executed according to the statutory scheme. Nevertheless, it is our opinion that they will not be held liable for withholding CPR for several reasons. First, the North Carolina General Assembly has unequivocally stated that a patient "has the fundamental right to control the decisions relating to the rendering of his own medical care, including the decision to have extraordinary means withheld or withdrawn in instances of a terminal condition." N.C. Gen. Stat. § 90-320(a). Second, Article 3 of Chapter 32A and Article 23 of Chapter 90 expressly state that the procedures contained therein for the exercise of this right are nonexclusive. See N.C. Gen. Stat. § 32A-15(b) and N.C. Gen. § 90-320(a).
Furthermore, EMS personnel will not liable for damages for personal injury or death arising out of their withholding CPR unless by doing so they fail to act in accordance with the standard of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time the services were withheld. N.C. Gen. Stat. § 90-21.12. No reported North Carolina appellate decisions have addressed the issue of whether the applicable standard of care includes the withholding of CPR when EMS personnel are presented with a common law DNR order. Therefore, we cannot state unequivocally that withholding care in this circumstance comports with the various community standards of care in North Carolina. Nevertheless, it is reasonable to expect that the courts will give great weight to the fact that the Model DNR Order was developed by a multi-disciplinary DNR Task Force hosted by the Bioethics Committee of the North Carolina Medical Society following many months of deliberation and that the model order has been endorsed by the health care organizations and associations represented on the Task Force. These facts strongly support a conclusion that the standards of care in the various communities across the State require that EMS personnel withhold CPR when presented with a common law DNR order such as the one in the model order. This inference will be even stronger in those communities where the standing orders of the local Advanced Life Support program specifically require EMS personnel to honor the statutory and common law forms of the Model DNR Order.
Conclusion
EMS personnel who withhold CPR pursuant to the statutory part of the attached Model DNR Order are immune from liability for their actions because the statutory part of the order comports with the provisions of Article 3 of Chapter 32A and Article 23 of Chapter 90 of the North Carolina General Statutes. Although EMS personnel who withhold CPR pursuant to the common law part of the attached Model DNR Order are not entitled to assert the statutory immunities contained in Article 3 of Chapter 32A and Article 23 of Chapter 90 of the North Carolina General Statutes, it is our opinion that they will not be held liable for withholding CPR.
Ann Reed, Senior Deputy Attorney General
John R. Corne,
Special Deputy Attorney General
June S. Ferrell Assistant Attorney General