Definition of a Do Not Resuscitate Tattoo
A Do Not Resuscitate (DNR) tattoo is the latest trend in what began as a grassroots medical movement. The purpose of a DNR tattoo is to inform others, especially medical personnel, that an individual does not wish to receive cardiopulmonary resuscitation (CPR) in the event a potentially fatal emergency renders that person incapable of consenting to care. In other words, if a person has a DNR tattoo and suffers a cardiac arrest, they do not want to be resuscitated. Anyone—patient, older adult, expectant parent—may choose to have a DNR tattoo , but many base the choice on medical conditions.
While this form of advance care planning is not yet widely accepted by medical professional, it has helped to raise awareness for standing DNR orders in many places. Typically, patients who choose to have DNR orders are issued DNR bracelets or necklaces, which are easily accessible to doctors and first responders in emergency situations. Because of this avenue, many see the DNR tattoo as ineffective and hospital personnel do not recognize the printable DNR orders.
How are Do Not Resuscitate Tattoos Approached by the Law
When it comes to healthcare, the extent to which a tattooed DNR order holds legal water is hazy at best. The federal government and most states have not really weighed in on tattoos as codified Do Not Resuscitate medical orders. Neither have the medical groups who should be tasked with translating and implementing a DNR directive. The most that the federal government, national, and state medical boards have done is to legally decrystallize the meaning of "code" in the DO NOT RESUSCITATE in the hospital environment. How that translates to actual treatment regrets of those who were resuscitated against their wishes, or their families, is still a billable or be damned kind of quagmire.
If you didn’t know that, then you are not alone. Healthcare professionals, especially nurses and physicians in LTCFs are required by law to know and execute a patient’s wishes but are not getting adequate education about how to recognize or deal with a tattooed DNR.
As for the courts, they, too, have largely remained silent. Publications like MedScape have published articles entitled "Do Not Resuscitate and Tattoos: Semantics or Meaning" noting that DNR tattoos garner respect but make clinical judgment difficult. The article also noted that "legal guidance is needed."
How far does that respect go? Can a tattooed DNR override the ethical obligations of a physician to treat, or a state or prosecutor to prosecute for failure to render medical care. Hospitals deter patients and families from relying on tattoos but likewise continue to treat DNR orders as if they have legal weight.
In fact, the law is essentially void here; the courts haven’t said. In Michigan, Section 333.1033 of the Michigan Compiled Laws renders a health care provider liable for abstaining from or withdrawing treatment from a patient with a DNR tattoo. Some states have ruled that a DNR tattoo is "a means of expressing his or her desire to refuse unwanted medical attention." To this end, a patient’s desire supersedes a family or physician’s wishes.
The bottom line is that if your client has a tattooed DNR, it is, at the very least, an unquestionable expression of his wishes. If he enters a hospital, nursing home, or other form of rehabilitation his wishes and directives as conveyed via tattoo should be respected and honored. However, with silence across the state lines, your job as his attorney is to be ready to intervene as necessary with his power of attorney.
What the Medical Community Thinks About Do Not Resuscitate Tattoos
Although there haven’t been enough scholarly articles published to lay down a uniform understanding of the legal implications of DNR tattoos, many doctors and medical professionals have expressed their opinion. Most agree that they can be a valuable tool, but very few are willing to abide by them.
For example, Dr. S Garden estimates that at least one third of doctors would not honor a DNR tattoo. Some may argue that this is because some medical professionals are not even familiar with policy that allows for them. Others may argue it is because those policy protections are not strong enough; in either case the general point remains. Some may say that hospitals should not be paying money and resources on malpractice suits over DNR tattoo controversy, which is why most physicians refuse to accept them. Moreover, given the difficulty of ascertaining intent from patients, many physicians may simply not be able to accurately determine whether to honor them.
Dr. R. Farnell echoes Dr. Garden’s sentiments, but does believe that they can be helpful if they "stick with the patient." For example, many people undergoing a terminal illness may not be strong enough to manage the logistical details of obtaining hospital orders. In those instances, a tattoo may be invaluable. However, because of the importance of the tattoo to the patient’s decision to opt out of difficult choices, arms doctors with the inclination to make difficult choices based on a patient’s tattoo condition. Painful decisions about terminal illnesses can be significantly less painful for a patient’s family or loved ones to make as a result.
In these situations, it can be even more beneficial to issue physician orders for life sustaining treatment so that in the event of emergency, the patient’s wishes will be followed. Some states have bills pending to allow for these types of medically issued orders for life sustaining treatment to be included in electronic medical records systems so as to be more widely accessible to physicians and hospitals alike.
Alternative Approaches to a DNR Tattoo
While DNR tattoos may indeed express a person’s clear intention not to receive resuscitation in the event of an emergency, they are not widely known to be legally binding or even enforceable. Unfortunately, the short answer to the question of whether DNR tattoos are legally binding is no; however, that should not deter you from ensuring that your wishes are clearly known, documented, and respected.
One alternative to a DNR tattoo is a living will. A living will is a legal document that expresses what types of medical treatments and life-sustaining measures you do or do not want in case of a medical emergency, such as a terminal al disease. In short, a living will lets your doctors know what type of medical treatment you want to receive.
Like the DNR tattoo, a written DNR order in a living will clearly expresses your intent. There is also a document known as a do not resuscitate order (or DNR order) . A DNR order is written by your doctor for emergency personnel, and gives EMT authorization to withhold resuscitation in the event of a medical emergency. Unlike a living will, however, a DNR order is only recognized and enforceable in hospital and medical care settings. They are not valid at home or in a long-term care facility, and cannot legally be followed by emergency responders.
A durable power of attorney for health care, or medical power of attorney, is yet another alternative to a DNR tattoo. A medical power of attorney is a legal document that allows someone you trust to make medical decisions for you when you are unable, such as if you were placed in a medically-induced coma. Unlike a DNR tattoo, the alternatives discussed in this section comprise legally-binding documents that form an essential part of estate planning.
Cases Related to Do Not Resuscitate Tattoos
While cases directly involving DNR tattoos are rare, a few do come up a year in the context of other medical or end-of-life decisions. In 2007, a patient was admitted to Chicago’s Rush North Shore Medical Center after suffering from a heart attack in her home. In the ER, doctors discovered that the patient had triplicate DNR orders on her medical charts. When authorities questioned the patient’s son about the DNR orders, he explained that his mother had hand-written a living will, specifying her wishes—yet he had misplaced the document. Doctors then agreed to carry out the patient’s DNR wishes, though the hospital’s medical staff believed that the documents had not followed Illinois’ state-mandated requirements. The doctors interpreted the DNRs attached to the patient’s medical records as having been "Transfers" from other facilities, as allowed by the law if a copy of the original DNR is not available (Presumed Consent). The case became complex, however, once it was discovered that the patient had a tattoo on her chest, with the words "D.N.R.," and began to argue that the tattoo, like a slip of paper, was legally binding. The hospital staff the refused to follow the instructions under the tattoo, yet ultimately conceded once the patient’s son found the original DNR—and helped the hospital correctly interpret the tattoo. The court found that the Son’s loss of the original DNR was no fault of his, and confirmed that the tattoo bore no legal power. Fortunately, however, the court cited the tattoo as having an impact on the son’s confusion, as well as the hospital’s court for carrying out the son’s wishes, as opposed to the patient’s.
In 2019, a case in Michigan grabbed national headlines when the family of a woman with a short life-expectancy found a note in the woman’s things that read: "DNR Tattoos. My tube fed Mother will NOT be resuscitated or be kept on life support." The family complied with the note’s instructions and admitted the woman to the hospital where, according to the treating doctor, the note violated Michigan law. Michigan law requires a "Do Not Resuscitate" order to be "issued by a physician for a patient who is a qualified candidate," and said physician should confirm "in writing" the "duration of the DNR order." In the case at hand, the doctor testified that a note did not fulfill either condition, nor did it contain the signature of the patient’s surrogate. The lawyers representing the medical center, including that of professor Edward P. Richards of the Earth & Mineral Law Institute, concluded that the patient’s tattoo, which missed the legal requirements, was open to misinterpretation. The family also argued that they complied with the Monterey Moving Pailladium Hospital case, however, Monterey was decided 20 years prior to Michigan’s law, which makes a more compelling case for the finding that the note was not valid.
Legal Tips for Your Do Not Resuscitate Wishes
If a person wishes to create a DNR order or do not resuscitate tattoo, it is important to legally solidify the decision. It is recommended to obtain a formal DNR order from a physician. Such an order must be completed in the written form, signed and dated, otherwise, the individual would have to carry the order form with them at all times. Furthermore, once a DNR order is issued, it must still be honored if it only has a signature or is not formally formatted. When an individual creates a DNR tattoo, the tattoo itself may be sufficiently clear for a healthcare provider to understand the intent of the tattooer. However, because there is no uniform form to recognize, such a tattoo may not be sufficient to honor the DNR . In the situation that your DNR tattoo is not heeded, then you should obtain a formal DNR order from your physician to ensure your wishes are followed. Further, when creating a DNR tattoo, it is also recommended to have a do not resuscitate order on file with your physician office. It is important that you discuss your wishes with your physician so that they can complete a formal DNR order to be placed on file. This way, if you ever did need medical attention, the attending physician would be aware of your wishes. The more formal documentation filed in a physician’s office regarding your DNR wishes, the more likely it is that they will be honored.