If a NC EMS responder withholds CPR based on a Do Not Resuscitate (DNR) order, are they protected from being sued?
Plain-English summary
In the late 1990s, NC was working through one of the hardest problems in emergency medicine. A 911 call goes out. A paramedic arrives. The patient is in cardiac arrest. The family hands the paramedic a piece of paper that says "Do Not Resuscitate." What does the paramedic do, and what happens if it turns out the paper wasn't quite valid?
The NC Medical Society's Bioethics Committee convened a multi-disciplinary DNR Task Force that spent many months developing a Model DNR Order with two parts: a statutory form (designed to comply with the formal Health Care Power of Attorney and Right to Natural Death statutes) and a common law form (less formal, for situations where the statutory requirements were not fully met). Bob Bailey requested an AG opinion on whether EMS personnel could honor each form without legal exposure.
Senior Deputy AG Ann Reed, Special Deputy AG John R. Corne, and Assistant AG June S. Ferrell answered both forms with a yes.
Statutory form: explicit immunity. Article 3 of Chapter 32A (Health Care Powers of Attorney) and Article 23 of Chapter 90 (Right to Natural Death) recognize a patient's right to control medical decisions, including the right to refuse extraordinary measures. Both articles grant immunity to health care personnel who withhold extraordinary care under the articles' procedures. G.S. § 32A-24 and §§ 90-321 and -322 are the operative immunity provisions. The statutory part of the Model DNR Order tracked the articles' requirements, so EMS personnel using that form were squarely within the statutory immunity.
Common law form: no statutory immunity, but no liability either. The common law form was simpler than the statutory form (intended for emergency situations where formal compliance was impractical), and so did not satisfy the statutory immunity prerequisites. The AG nonetheless concluded EMS personnel honoring the common law form would not be liable. Two reasons supported this. First, both Articles 3 and 23 expressly state their procedures are nonexclusive (§ 32A-15(b); § 90-320(a)). The legislature recognized that other ways of declining care exist and did not foreclose them. Second, EMS liability for declining to perform CPR runs through G.S. § 90-21.12, the medical negligence standard. Under § 90-21.12, EMS personnel are not liable unless their conduct falls below the standard of practice "among members of the same health care profession with similar training and experience situated in the same or similar communities."
The AG noted no reported NC appellate decision had addressed whether withholding CPR per a common law DNR order met community standards. But the Model DNR Order was developed by a credible multi-disciplinary body and endorsed by the major health care organizations and associations participating on the Task Force. The AG predicted courts would give great weight to those facts. In communities where local Advanced Life Support standing orders specifically required EMS to honor both forms of the Model DNR Order, the standard-of-care argument would be even stronger.
The practical effect: EMS personnel could honor either form of the Model DNR Order without significant liability risk. Patients who wanted to refuse resuscitation had a clearer path; family members hesitant about pulling out a non-statutory form had stronger assurance the paramedics would honor it.
Currency note
This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The NC end-of-life law was substantially updated in 2007 by S.L. 2007-502 (Uniform Form for Advance Directives). NC also implemented the MOST (Medical Orders for Scope of Treatment) form. EMS protocols, DNR forms, and the surrounding immunities have evolved considerably.
Background and statutory framework
The two-track structure of NC end-of-life law. Article 3 of Chapter 32A covers Health Care Powers of Attorney: a patient designates an agent who can make medical decisions when the patient cannot. Article 23 of Chapter 90 covers the Right to a Natural Death: a patient can sign an advance directive declining extraordinary measures in a terminal condition. The two articles work together for patients who plan ahead.
Why a common law form was needed. Not every patient plans ahead. Emergency situations sometimes call for honoring oral wishes, family-conveyed wishes, or hastily prepared documents. The Bioethics Committee's common law form was designed for those situations. It captured the patient's wishes without requiring formal statutory compliance.
The "nonexclusive" language. Both § 32A-15(b) and § 90-320(a) state that the statutory procedures for refusing care are "nonexclusive." This language was critical to the AG's analysis. It meant the legislature had not foreclosed alternative routes for honoring patient autonomy.
Section 90-21.12 standard of care. EMS personnel are providers covered by the medical malpractice standard. They are liable only if their conduct falls below the community standard. The AG used this as the liability backstop for the common law form: even without express immunity, EMS personnel following an endorsed community standard would not be negligent.
The Bioethics Committee's role. The NC Medical Society's Bioethics Committee was a respected voice on end-of-life issues. Its multi-disciplinary Task Force included medicine, nursing, EMS, hospice, law, and patient advocacy. The AG explicitly relied on the Task Force's endorsement to predict how courts would view the standard of care.
Local ALS standing orders. Local Advanced Life Support medical directors set protocols for EMS providers in their jurisdictions. Many had already incorporated the Model DNR Order into their standing orders. The AG noted that incorporation reinforced the community standard of care.
Statewide DNR registries (post-1997). NC later developed a statewide MOST form and EMS DNR systems. The 1997 opinion was a step toward that more systematic framework.
Common questions
Q: What if family members disagree about whether to honor the DNR order?
A: The opinion does not address family disagreement. In practice, EMS personnel typically honor the patient's express written wishes; disagreement can be a difficult judgment call at the scene.
Q: Can a patient revoke a DNR order verbally?
A: Yes, NC law generally allows verbal revocation. EMS personnel who hear a patient revoke a DNR should resuscitate.
Q: Does the opinion cover health care facilities other than EMS?
A: The opinion was focused on EMS personnel because that was the question asked, but the reasoning extends to other health care providers (hospitals, nursing homes) who honor the Model DNR Order.
Q: What if a paramedic doubts the authenticity of the DNR form?
A: The opinion does not address authenticity disputes. Standard EMS practice would generally resuscitate when authenticity is in genuine doubt.
Q: Is the Model DNR Order still in use today?
A: The Model DNR Order has been substantially evolved into the MOST (Medical Orders for Scope of Treatment) form and other modern instruments. The 1997 framework was a precursor.
Q: Can a patient have a DNR without a terminal condition?
A: Article 23 specifically addresses terminal conditions. The Health Care Power of Attorney under Article 3 is broader. Both can be relevant depending on the patient's situation.
Citations from the opinion
- N.C. Gen. Stat. §§ 32A-15(a), 32A-15(b), 32A-24
- N.C. Gen. Stat. §§ 90-21.12, 90-320(a), 90-321, 90-322
Source
Original opinion text
Best-effort transcription from the NCDOJ landing page; the opening paragraphs were not in the scraped capture, so the text below begins where the capture starts. The linked landing page is authoritative.
- (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. §§ 90-321 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