If a NC EMS responder withholds CPR based on a Do Not Resuscitate (DNR) order, are they protected from being sued?

Plain-English summary

The surviving text asks about EMS personnel withholding CPR under two parts of an attached Model DNR Order: a statutory part and a common-law part. The stored opinion lacks its opening request and the attached order, so the form itself cannot be checked from this record. Source

For the statutory part, the AG says it complied with Article 3 of Chapter 32A and Article 23 of Chapter 90. EMS personnel using it could claim the immunities cited in the letter. The stored original cites N.C. Gen. Stat. § 32A-24 and "§§ 90-321 and -321"; that repeated section number is reproduced as it appears in the available text. Source

For the common-law part, the AG says the statutory immunities did not apply because the form was not executed under the statutory scheme. The opinion nonetheless concludes that EMS personnel following it would not be held liable for withholding CPR. It bases that assessment on the nonexclusive statutory procedures and N.C. Gen. Stat. § 90-21.12's standard of care. The AG expressly cautions that no reported North Carolina appellate decision had resolved whether withholding CPR under a common-law DNR order met that standard in the state's various communities. Source

The opinion's reasoning is specific to EMS personnel and the Model DNR Order discussed there. It does not decide the duties or immunity of hospitals or nursing homes. Source

Currency note

This is a 1997 opinion whose attached form is absent from the stored source. Check the complete form, current statutes, and local EMS standing orders for a present decision.

Background and statutory framework

The letter quotes N.C. Gen. Stat. § 32A-15(a) on a person's right to control medical care and § 90-320(a) on the right to a peaceful and natural death. It says those articles provide immunity when their procedures are followed and that their procedures are nonexclusive. Source

For the common-law form, the AG points to the care standard for EMS personnel with similar training and experience in similar communities. The opinion says courts might give weight to the Model DNR Order's development by a multidisciplinary task force and that the inference would be stronger where local Advanced Life Support standing orders required EMS to honor both forms. Source

Common questions

Does the statutory part of the Model DNR Order provide immunity for EMS withholding CPR?

The AG said yes for personnel acting under the attached statutory part, which it described as meeting the cited statutory procedures. The attachment itself is missing from this record. Source

Did the AG say the common-law part had the same statutory immunity?

No. It says that part was not executed under the statutory scheme and did not carry its express immunities. The AG separately assessed likely liability under the standard of care. Source

Does this answer apply to a hospital honoring a DNR order?

The letter's questions and conclusion address EMS personnel withholding CPR. It does not analyze hospital personnel or nursing homes. Source

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

Source

• Landing page: https://ncdoj.gov/opinions/do-not-resuscitate-dnr-orders-liability/

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