OHIO - ADVANCE DIRECTIVES (LIVING WILLS)

March 27, 2008

Ohio state laws and regulations that affect your medical practice

Federal law requires all patients admitted to a health-care facility be informed of their right to make an advanced directive. Advanced directives are intended to direct physicians to a patient’s preferences when making treatment decisions.

Ohio provides patients with three primary means of expressing their choices regarding the receipt of medical care: Living Wills, a Health Care Power of Attorney and a Do-Not-Resuscitate Order (DNR).

Living Will

A living will allows a patient to decide and document in advance the type of care a patient wants to receive if he or she becomes permanently unconscious or terminally ill. In addition, Ohio’s living will allows a patient to specify his or her wishes regarding anatomical gifts (i.e., organ and tissue donation.)

There are several questions every health care provider should keep in mind when making decisions in accordance with a living will: (1) is the living will valid? and (2) is it proper to use the living will at this time?

To be valid, a living will must be signed by the patient or at the patient’s direction.

Ohio Rev. Code Ann. §2133.02

The patient signing can occur in the presence of two signing witnesses or in the presence of a notary. Anyone related to the patient by blood, marriage or adoption or the patient’s attending physician may not serve as a witness.

Further, a living will can only be used if a patient is terminally ill or permanently unconscious. A patient is terminally ill when there is an irreversible, incurable and untreatable condition. The patient’s attending physician and one other physician who has examined the patient must conclude, to a reasonable degree of medical certainty, that there can be no recovery and death is likely in a relatively short-time if life-sustaining treatment is not administered.

Ohio Rev. Code Ann §2133.01(AA)

For a patient to be considered permanently unconscious, two physicians, one who is a specialist in an appropriate field, must verify that the patient has no reasonable possibility of regaining consciousness.

Ohio Rev. Code Ann. §2133.01(U)(1)

So long as the living will is valid and the patient is determined to be either terminally ill or unconscious, then the wishes of the patient, as documented in the living will should be followed. Notably, where a patient has both a living will and a health care power of attorney, the living will is controlling.

Ohio law also allows an attending physician to refuse to comply with a patient’s living will on the basis of conscience.

Ohio Rev. Code Ann. §2133.02(D)(1)

A refusing physician must promptly notify the health care facility and should not seek to prevent the immediate transfer of the patient to another provider or facility.

Ohio Rev. Code Ann. § 2133.10

Health Care Power of Attorney

A Health Care Power of Attorney allows a patient to appoint someone, called an “attorney-in-fact,” to make decisions in the event the patient is unable to make independent choices.

To be valid, the Power of Attorney must be signed and dated by the patient at the end of the instrument and either witnessed by 2 adults or acknowledged by a notary.

Ohio Rev. Code Ann. § 1337.12(A)(1)

Any person related to the patient by blood, marriage or adoption and anyone appointed as the attorney-in-fact may not witness the document.

Ohio Rev. Code Ann. § 1337.12(A)(3)

Further, a patient’s attending physician or the administrator of the nursing home in which the patient resides may not serve as that patient’s attorney-in-fact.

Ohio Rev. Code Ann. § 1337.12(A)(2)

The patient’s appointed attorney-in-fact may only make decisions for the patient if the attending physician determines that the patient has lost the capacity to make informed decisions.

Ohio Rev. Code Ann. § 1337.13

First, the attorney-in-fact has limited authority to order the withdrawal of life-sustaining treatment. An attorney-in-fact may only order the withdrawal of life-sustaining treatment if the patient has a terminal condition or is permanently unconscious. An attorney-in-fact may never deny a patient “comfort care” and, generally, if a patient is pregnant, life-sustaining treatment can not be withdrawn if doing so would terminate the pregnancy.

If a patient has a Health Care Power of Attorney and a Living Will, health care providers must comply with the Living Will, over the attorney-in-fact’s decisions.

Do-Not-Resuscitate Order

A DNR Order permits a patient to declare which methods should be used to revive a patient who has experienced cardiac or respiratory arrest.

Ohio law also establishes two types of DNR Orders: the “DNR Comfort Care Arrest Order” and the “DNR Comfort Care Order.”

A patient with a Comfort Care Arrest Order should receive all available medical treatment, including CPR, until the patient has a cardiac or respiratory arrest, which is defined as no spontaneous respirations or the presence of agonal breathing. Once an arrest is confirmed, all resuscitative efforts should be stopped and comfort care alone (as defined below) should be initiated.

In contrast, by requesting a Comfort Care Order, a patient is choosing to receive only the comfort care measures described below, should an event occur that is life threatening or ending. This kind of order is generally appropriate for a patient with little chance of survival, a terminal illness or a short life expectancy.

While rendering “comfort care” under the Ohio DNR law, professionals:

MAY suction the airway, administer oxygen, position for comfort, splint or immobilize, control bleeding, provide pain medication, provide emotional support, and contact other appropriate providers.

MAY NOT administer chest compressions, insert an artificial airway, administer resuscitative drugs, defibrillate or cardiovert, provide respiratory assistance (other than suctioning the airway and administering oxygen), initiate resuscitative IV, or initiate cardiac monitoring.

Attention should be given to patients admitted or discharged with DNR orders so that all involved health professionals understand what kind of DNR order has been written.

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008