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Wisconsin's Do Not Resuscitate
Bracelet Law Raises
Legal and Medical Issues

Liability issues

Fines and imprisonment of $500 and 30 days maximum are imposed upon any person who conceals, defaces or damages a DNR bracelet without the patient's consent, and upon any person who forces a person to sign a DNR bracelet order by using threats, intimidation or coercion. A person who falsifies or transfers a DNR bracelet to a patient who has not requested one, or who conceals the revocation of a DNR bracelet, may be punished by a fine of up to $10,000 and up to 10 years imprisonment. ⁵

Failure to honor a DNR bracelet

The statute specifies that no caregiver or facility will be held liable for providing resuscitation unless they have actual knowledge of the DNR order. Additionally, no liability attaches if a provider fails to act when there is no actual knowledge of revocation of a DNR order. Ambiguity may arise when a patient is wearing a bracelet that appears to be defaced or damaged, and the patient cannot clarify his or her wishes. In this situation, CPR should be provided because the only valid bracelet is one that is clearly not "tampered with." Further, an emergency caregiver cannot judge the competence of a patient so CPR should always be provided when requested, even by a confused patient. The statute provides no penalty for resuscitating a person wearing a valid bracelet.

Some legal scholars have proposed creating a tort of "wrongful living" to allow damages to a patient whose right to refuse medical treatment has been violated by unconsented treatment. In this scenario, a medical caregiver who knowingly or negligently provided resuscitation would be liable. ⁶ Further, if the treatment itself was negligently performed, damages would be available for medical malpractice (that is, battery for nonconsensual touching).

The Wisconsin Supreme Court has reiterated the broad social purposes of tort law:

"1) as a matter of justice, tort law shifts the losses caused by a personal injury to the one at fault;

"2) by placing the cost with the one in the position to prevent the injury, tort law seeks to deter unsafe behavior; and

"3) to compensate the victim, tort law creates a mechanism to distribute losses widely." ⁷

According to its advocates, the wrongful living cause of action would send a message to medical caregivers that they must respect patients' value decisions and their right to refuse medical treatment.

Physicians have a duty to provide medical care to their patients, thus asserting this cause of action may place physicians in a legal and ethical dilemma. By withholding treatment, physicians may face medical malpractice; by providing treatment, they may risk civil liability. In some situations, a physician may decide that a DNR order or bracelet is appropriate because resuscitation can be of no medical benefit to a patient. In this situation, it is the physician's medical expertise that is determinative, not the patient's values. In other situations, while sustaining the patient's life, resuscitation may so seriously compromise quality of life that the decision must be based on the patient's values. Decision-making is further complicated by studies showing that patients who desire an early death often are suffering from a treatable depression. ⁸

Proponents of a wrongful living cause of action also debate the issue of damages. A patient with a short life expectancy could claim little if any pecuniary losses. An elderly person receiving social security, retirement benefits and Medicare would have no loss of income and few uncovered medical expenses. Indeed the issue is not truly one of compensation for financial losses but for a breach of the agreement not to provide resuscitation. Legal scholars such as Tricia J. Hackleman argue that disrespect for patient decision-making is common, thus a new cause of action is the only way to force physicians to respect patient rights. Hackleman bases her argument upon a 1978 survey of California physicians that showed 11 to 20 percent of physicians refused to follow patient directives, even when they faced no risk of legal liability for doing so. ⁹

In the ensuing 19 years, the public and physicians have been well educated about patient rights. In 1990 Congress passed the Patient Self Determination Act, requiring that all patients admitted to health-care facilities be asked about advanced directives. The Joint Commission on Accreditation of Health Care Organizations requires its members to implement procedures to provide advanced directives. Popular magazine and talk shows have provided wide exposure to the issue of patient rights. Thus it is likely that an update of the California study would find physicians more compliant with patients' wishes regarding DNR status.

However, this new awareness of patient rights coupled with the rise of managed care has created a risk associated with asserting a right to refuse treatment. As Judge Posner recently expressed:

"HMOs, though they have made great strides in recent years because of the widespread concern with skyrocketing medical costs, remain relative upstarts in the market for physician services. Many people don't like them because of the restriction on the patient's choice of doctors or because they fear that HMOs skimp on service, since, as we said, the marginal revenue of a medical procedure to an HMO is zero. From a short-term financial standpoint - which we do not suggest is the only standpoint that an HMO is likely to have - the HMO's incentive is to keep you healthy if it can but if you get very sick, and are unlikely to recover to a healthy state involving few medical expenses, to let you die as quickly and cheaply as possible. HMOs compensate for these perceived drawbacks by charging a lower price than fee-for-service plans." ¹⁰

Some proponents of living wills and other advanced directives such as the bracelet laws, argue that their use might reduce medical costs near the end of life. ¹¹ The attractiveness of advanced directives as a cost-saving device in managed care creates a serious conflict of interest. Further, patients are offended by the federally required practice of asking all adult patients (not just those with a terminal condition) about their desire for advanced directives upon admission to a hospital. Nonterminal patients who must make extensive use of medical services, such as disabled persons or those with chronic illnesses, may be especially sensitive to the issue raised by Judge Posner. These negative reactions coupled with the rise of cost-conscious managed care also may effect how widely the bracelet is used, even among qualified terminally ill patients.

Wisconsin case law on liability issues

Wisconsin courts have not recognized the wrongful living cause of action. Other related causes of action have been recognized, however, and may provide some insight into how a Wisconsin court might decide a wrongful living case.

The Wisconsin Supreme Court in Slawek v. Stroh refused to recognize a new cause of action for wrongful birth because such recognition "would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or their elected legislative representatives." ¹² In Slawek a healthy child brought suit against her father for the suffering associated with her illegitimate birth.

The refusal to legally recognize wrongful birth claims has been reiterated in Terry v. Johnson ¹³ and Dumer v. St. Michael's Hospital. ¹⁴ In Dumer a child born with congenital defects sued her mother's physician for wrongful birth resulting from a missed diagnosis of the mother's rubella. The court found the major obstacle to the child's claim was the determination of damages. ¹⁵ The damages claimed flowed from the result of being born, as opposed to having been aborted, should the mother have known about her exposure to rubella. The court refused to measure the difference between "life with defects against the utter void of nonexistence" ¹⁶ and denied compensatory damages.

In Terry, as part of a bankruptcy proceeding, a physician sought to restrain prosecution of a wrongful life malpractice claim for a child conceived due to a defectively performed vasectomy. The Bankruptcy Court declined to address a legal claim not yet recognized in Wisconsin and vacated the order, noting that Wisconsin state courts should decide important public policy questions.

In Marciniak v. Lundborg, an action by parents to recover costs of raising a healthy child conceived due to a negligently performed sterilization operation on the mother, the Wisconsin Supreme Court held that costs of raising the child to majority were recoverable. ¹⁷ The court cited the general Wisconsin rule of tort that a person has "an obligation to exercise reasonable care so as not to cause foreseeable harm to another." ¹⁸ The court rejected the argument that the child-rearing costs were out of proportion to the doctor's culpability, noting that the couple likely had made their decision in part based upon their inability to afford the cost of raising another child. The court reiterated that the patient had sought medical assistance for the "express purpose of permanently avoiding conception, and as a result, the physician can be held liable for the consequences that are the direct result of his negligence." ¹⁹ The court shifted the costs of raising the child to the negligent physician.

Extrapolating from these cases, Wisconsin courts may find that medical malpractice based upon battery is a sufficient cause of action when a DNR order is intentionally or negligently disregarded. Damages from physical harm caused by the act of resuscitation may be recoverable just as the costs of raising a child recoverable in Marciniak. In Slawek and Dumer the Wisconsin Supreme Court refused to recognize a cause of action for wrongful life due to the impossibility of valuing nonexistence over life. The court found that the social policy ramifications of such a decision should be considered by the people. For similar public policy reasons, the court would likely defer creating the wrongful living tort to the Legislature.

Conclusion

The new bracelet bill attempts to provide more patient autonomy and better assurance that a terminal patient's wish not to be resuscitated will be respected even when the patient is not in a health-care institution. As more terminally ill people are either ambulatory or being cared for at home, this law may provide a useful extension of patients' right to refuse treatment, and to have their decisions honored.

Questions of interpretation and extent of actual use remain. Research on the bracelet's frequency of use, how patients learn about its availability and how physicians interpret who qualifies for a bracelet would provide valuable data about the new law's effects. The conflict between the physician's need to respect patient choices and the physician's role as expert healer merit continued attention, as does the conflict of interest faced by managed-care organizations whose interest in containing costs may taint their support of patient advanced directives, including the DNR bracelet.

Endnotes

¹ 1995 Wisconsin Act 200.

² Wis.Stat. 154, 155.

³ Wis. Stat. 154.17(4).

⁴ R.N. Butler, R. Burt, K.M. Foley, R.S. Morrison, Palliative Medicine: Providing Care When Cure is Not Possible, Geriatrics 33 (May 1, 1996).

⁵ Wis. Stat. 154.23.

⁶ Tricia J. Hackleman, Violation of an Individual's Right to Die: The Need for a Wrongful Living Cause of Action, 64 U. Cin. L. Rev. 1355, 1370-71 (1966).

⁷ CLL Assoc. v. Arrowhead Pacific, 174 Wis. 2d 604, 610, 497 N.W.2d 115, 117 (1993).

⁸ Thomas B. Marzen, "Out, Out Brief Candle": Constitutionally Prescribed Suicide for the Terminally Ill, 21 Hastings Const. L.Q. 799, 811-12.

⁹ Diane L. Redleaf, Suzanne B. Schmitt, William C. Thompson, The California Natural Death Act: An Empirical Study of Physicians' Practices, 31 Stan. L. Rev. 913 (1979).

¹⁰ Blue Cross & Blue Shield United of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1410 (7th Cir. 1995).

¹¹ Laura Hanson and Eric Rodgman, The Use of Living Wills at the End of Life: A National Study, Arch. Internal Med., May 13, 1996.

¹² 62 Wis. 2d 295, 317-18, 215 N.W.2d 9, 22 (1974).

¹³ 12 B.R. 578 (E.D. Wis. 1981).

¹⁴ 69 Wis. 2d 766, 233 N.W.2d 372 (1975).

¹⁵ Id. at 772, 233 N.W.2d at 375.

¹⁶ Id. at 773, 233 N.W.2d at 376.

¹⁷ Marciniak v. Lundborg, 153 Wis. 2d 59, 450 N.W.2d 243 (1990).

¹⁸ Id. at 70, 450 N.W.2d at 248.

¹⁹ Id.