Legal setting of emergency medicine

Why have a legal introduction in a website on ethical issues in emergency medicine? Certainly not because ethics and law are synonymous, even though attempts to discuss ethical choices are frequently reduced by the pressures of the moment to worries about legal obligations and risks.

Nor because compliance with the law guarantees ethical behavior; after all, society permits much conduct in which one ought not to engage.

Further, the law may have little to contribute — beyond its pervasive emphasis on the importance of appropriate processes of decision making — to the resolution of the very dilemmas that emergency medical personnel find most ethically problematic.

While the law is thus not central to this volume, still it cannot be ignored. Knowledge of the basic legal rules that apply to medical care, and of their special variations in emergencies, provides the necessary framework for the ethical analysis to which the website is devoted.

This brief introduction is not a substitute for detailed legal advice based on the facts of an individual case, and it is not intended to turn readers from experts in health care (or ethics, for that matter) into authorities on the law.

Indeed, health care professionals seldom serve their patients well when they try to play the role of a lawyer.

When the right legal course is in doubt, health care providers are usually better advised to follow that course they believe is most defensible in medical and ethical terms, until necessary advice can be obtained from someone with legal expertise.

Nonetheless, part of being prepared to practice emergency medicine in an ethical manner is being familiar enough with the law that it is likely one’s judgments will accord with society’s basic expectations.

The law thus frames decision making in emer­gency medicine; the details of the picture are filled in by ethical analysis.

To continue the metaphor, the general shape and appearance of the frame will already be familiar to most readers; however unusual the ethical dilemmas of emergency medicine may seem, the applicable legal rules closely follow those that apply in a nonemergency situation.

General Tort Rules

Everyone is subject to civil liability for wrongs committed against the person or property of another. Such wrongs, or “torts,” fall into several categories, depending upon the manner in which the law characterizes an actor’s conduct.

An intentional tort occurs when the actor intends to violate another’s rights or knows to a substantial certainty that such harm will occur.

This liability extends even to consequences that are unlikely and not intended, on the ground that it is fairer to place the burden of such harms on the shoulders of one who has intentionally harmed another than on the shoulders of his or her victim.

A different rule applies to unintentional torts because all human acts have multiple consequences which spread out over time like ripples from a pebble tossed into a pond.

When harm is not intended, an actor is usually held responsible only for conduct which departs from that expected of the average, reasonably prudent person under like cir­cumstances.

Such conduct is labeled negligence, and the actor is said to be at fault for the resulting harm. A person can be held liable for negligent omissions as well as acts, if the person had a duty to act under the circumstances.

Under the doctrine of respondeat superior, a person or business enterprise that employs another to carry out activities is jointly liable with the employee, even if the particular act brings no benefit to the employer.

If a person is hired as an independent contractor — meaning that the person hired retains control over the way in which he or she will perform his or her functions — the employer is not vicariously liable for the person’s negligence, although the employer could be directly liable for failing to use due care in selecting the independent contractor.

The primary purpose of awarding damages is to compensate an injured party; such “actual” damages, which can include lost income and the expense of repairs (including medical costs), as well as an amount for pain and suffering, are intended to make a plaintiff whole and can be awarded for either intentional or unintentional torts.

In the case of intentional harms, a plaintiff who has suffered no actual loss may still be awarded “nominal” damages (for example, if a trespass produces no harm needing correction); an intentional wrongdoer may also be assessed punitive damages, which many courts measure not by the harm the plaintiff suffered but by the outrageousness of the de­fendant’s acts and by the defendant’s wealth, since the punishment must hurt the defendant enough to deter the repetition of the conduct and to serve as an example to others.


These principles of tort law apply to physicians and other health care professionals, except that higher requirements for proving negligence are imposed on plaintiffs in medical cases than in ordinary cases, for several reasons.

First, society wishes to protect and encourage health care; second, it respects the specialized knowledge possessed by the providers of such care, the adequacy of which cannot usually be judged by lay jurors and judges who lack such specialized training; and third, society recognizes the irre­ducible element of uncertainty in any activity having to do with individual human func­tioning, especially when sickness strikes — meaning that no inference of negligence follows merely from a “bad outcome” in medical care, the way it might in other areas of human endeavor.

Although health care providers believe themselves to be under attack by the legal system, the rate of malpractice suits against physicians has not increased significantly in recent years (though the size of verdicts has increased).

Only a small fraction of those medically related injuries that are caused by negligence (about one in ten) eventuate in lawsuits; unlike normal negligence cases, defendants prevail in the majority of medical cases.

And physicians and other health care professionals are seldom sued by their patients for intentional torts.

The one form of intentional tort for which physicians are at risk goes by the rather ferocious name of battery.

In ordinary parlance, battery connotes a punch in the nose, but it occurs whenever an unconsented bodily contact occurs. Thus, in health care, any touching of the patient without consent would be a battery.

For many types of touching (in a routine physical examination, for example), the professional can rely on the patient’s implied consent provided when the patient voluntarily complies with the professional’s requests.

For more extensive interventions, such as surgery, a prudent professional obtains express oral or written consent, because without it the professional’s action would be a battery.

When a person is unable (because of youth or incapacity) to give consent for himself or herself, a legal guardian may give consent on the person’s behalf.

In the past quarter century, courts have added and then refined a further require­ment of a valid consent, under the heading of “informed consent”.

Although the courts (and, more recently, legislatures) in the several states have differed in the precise details of what constitutes an informed consent, the basic contours are that for a patient’s consent to be legally valid, the patient must be competent to consent to the intervention, the physician (or other independent health care provider) must inform the patient of the facts about the patient’s condition and the proposed treatment (such as likely outcomes and risks) and its alternatives, and the patient’s consent must be given voluntarily.

The adequacy of this disclosure is measured in some states by the amount that other competent physicians usually disclose (the “reasonable physician” standard), and in other states by the amount that a reasonable person in the pa­tient’s position would find material in making the decision (the “reasonable patient” stan­dard).

Although informed consent rules are regarded by many physicians as an unnec­essary legal intrusion into the medical sphere that does little to improve the quality of health care decisions, compliance with the spirit (as well as the letter) of the legal rules seems to improve not merely patient understanding of medical care but also actual outcomes.

Further, while lack of informed consent is seldom a basis of law suits (and even then virtually never by itself but only as an allegation added to a claim based on other forms of professional negligence), adequate discussion of procedures with patients reduces the risk that they will decide to sue for a bad outcome.

In addition to personal consent, the law provides means for obtaining consent from surrogate decision makers on behalf of patients who lack the capacity to make a particular medical decision themselves, that is, those who, in common parlance, are legally “incompetent.”

Under the common law, a minor could not give legally effective consent to medical or surgical treatment. The physician had to obtain consent of the child’s parents or someone acting loco parentis.

Currently, however, the law recognizes a minor’s consent as sufficient in certain circumstances, depending upon the minor’s age, maturity, mental state, and emancipation, as well as the medical intervention involved and certain public policy considerations.

In particular, statutes in a number of states recognize valid consent by a minor to medical care for pregnancy, venereal disease, and drug dependency.

In general, where there is no relevant statute, the recent trend is to allow minors to consent if they are emancipated through marriage or are sufficiently mature to make the decision in question.

Similarly, a mentally incompetent person cannot give legally valid consent for medical treatment. If a patient is declared legally incompetent, consent for treatment must be obtained from the patient’s guardian.

When a patient’s mental capacity has not been judicially assessed but it is doubtful that he or she has the capacity to consent, consent of the nearest relative, such as a spouse, should be obtained.

Recently, the Supreme Judicial Court of Massachusetts held that institutions may not treat incom­petent mental patients without a court’s substituted judgment. Where a patient has no guardian, the court acts as the guardian in deciding whether or not to authorize medical treatment.

Standard of Care

The reasonable physician standard in informed consent cases is a reflection of the special negligence standard that is used in cases against professionals. In ordinary neg­ligence cases, the jury (or judge if there is no jury) applies common standards of reasonable prudence in judging the parties’ conduct.

In cases against health care profes­sionals, however, the plaintiff must show (through expert testimony) that the conduct of the defendant physician or nurse departed from the standards set by the defendant’s professional group or subgroup itself.

Even when the plaintiff has provided such evidence, the defendant will still prevail if the fact finder concludes that the defendant’s conduct complied with the standards of at least some recognized school of thought within the professional group.

Traditionally, the standard of due care for a medical practitioner was set as that followed by like professionals in the same community. Many jurisdictions are moving toward a national standard of care, for several reasons.

First, the training of profes­sionals — both in obtaining their initial degrees and through continuing education pro­grams and professional journals — is increasingly national.

Second, the community standard reinforced the “conspiracy of silence,” that is, the unwillingness of professionals to testify against one another, especially those with whom they have regular contact in the locality.

Finally, a health care professional may be held liable for failing to seek consultation or refer the patient to a specialist when required by due care, given the complexity of the case.

In other words, it will not be enough for a physician to apply the level of skill of others in his or her professional group in diagnosing or treating a patient if a reasonable and prudent physician would have recognized the need for a specialist’s assistance.

Creating the Duty

The obligations created by this standard of behavior generally apply to all persons that a physician undertakes to examine or treat; indeed, even discussing a diagnosis with a patient over the telephone has been found to be sufficient to create a physician – patient relationship.

Once the relationship is created, a health care provider can be held liable for harm that comes from the failure to intervene as well as from negligent interventions.

Thus, a physician who is unwilling to continue treating a patient may not simply abandon the patient. There are, however, three instances where the physician’s duties may be terminated.

The patient may end the relationship unilaterally, by dismissing the physician. Alternatively, a physician and a patient may mutually agree to end the rela­tionship, as when the physician’s services are no longer needed.

Finally, a physician may withdraw himself or herself from the case by giving sufficient notice so that the patient could procure substitute care.

A physician’s unilateral termination of the relationship against a patient’s will and without adequate notice to the patient constitutes an “abandonment,” for the consequences of which the physician can be held liable.

Physicians are also liable for abandonment if they fail to follow up on treatments, fail to instruct or warn patients about the risks of their conditions, or fail to insure that the patients understand that further treatment is necessary.

Generally, if a physician should have foreseen probable harm from a termination of the relationship and that hard did actually occur, the physician risks liability for any unreasonable termination of medical care where no substitute medical care has been made available.

On the other hand, when there is no physician-patient relationship, there can be no breach of duty because there is no duty to be breached.

Respondeat Superior

A hospital is liable for the harms caused by the negligence of its employees, including professionals such as nurses and resident physicians, but not for the acts of independent contractors (such as attending physicians) if the hospital has no right of control over their manner of performance.

Liability has been found, however, for the direct negligence of hospitals in failing to exercise due care to withhold or withdraw hospital privileges from physicians who lack the necessary knowledge or skill to perform the medical procedure encompassed within the grant of staff privileges by the hospital.

Similarly, hospitals are generally not liable when a physician has failed to obtain informed consent from a patient because the decision of what to disclose is a matter of professional judgment within the physician-patient relationship.

A hospital need not intervene between the physician and the patient unless it knows or should know that informed consent is lacking (e.g., because of patient incompetence) or unless performing the procedure itself constitutes malpractice.

Physicians may also be held vicariously liable for the acts of others under their direction. First, a hospital employee may be treated as the “borrowed servant” of the physician when operating under the physician’s direction (for example, during surgery).

Some jurisdictions are moving away from this “captain of the ship” doctrine, however, in light of the greater independence and specialization of other health profes­sionals.

Second, in the case of the physician’s assistant, the responsibility (and, hence, the vicarious liability) of the employing physician is inherent in the assistant’s role, as defined by the profession and by the statutes authorizing their practice.

By definition, the physician’s assistant is a “skilled person qualified by academic and practical on-the-job training to provide services under the supervision and direction of a licensed physician who is responsible for the performance of that assistant”.

Thus, in addition to the personal liability of a physician’s assistant for his or her own negligence, the assistant’s employer (that is, a physician and / or hospital) is also vicariously liable.

In judging the acts of a physician’s assistant, the same standard of care is used as would apply to a physician who employed the same medical procedure under similar circumstances.

Negligence may also be based on conduct that exceeds the defined scope of the assistant’s training and, therefore, violates the statute authorizing his or her practice.


To understand the various ways the general legal rules for medical practice — standard of care, consent, and the like — may be altered in an emergency, one first needs a definition of “emergency.” An emergency has been defined as an “unforeseen com­bination of circumstances … that calls for immediate action”.

Whatever definition or definitions are used, the purpose is to recognize both special obligations and special rights that arise in situations in which prompt action is necessary to avoid adverse consequences.

Creating the Duty

While private physicians and hospitals are generally free to accept or refuse to take on a patient, liability is imposed, even though no prior treatment relationship existed, for the harm that follows from a refusal to provide necessary emergency treatment if the patient has relied on an established custom of providing such services.

Signs indicating the presence of, and directions to, emergency facilities and even general knowledge that a hospital provides emergency care have been held to impose a duty to provide such services to those who seek them.

Standard of Care

Emergency medical treatment may be provided under a variety of circumstances; while the general principles governing due care are the same for all, their actual definition varies because of differing expectations about the skills and preparation of the profes­sionals under the circumstances.

Specialized Emergency Facilities. When a physician claims specialized expertise in emergency medicine, his or her conduct in rendering emergency care will be judged by standards that are higher than those expected of practitioners from outside this branch of medical learning and practice.

Similarly, a hospital or other health care institution that offers emergency treatment is required to employ personnel and equip­ment that are appropriate to the circumstances.

Yet neither the professionals nor the institution are expected to guarantee particular results; indeed, that would be an es­pecially inappropriate requirement in the atmosphere of high risk and uncertainty typical of conditions that require emergency treatment.

As elsewhere in medical care, professional malpractice can take one of several forms, including

(a) treating without appropriate indications or in the face of contrain­dications,

(b) performing a procedure incompetently, and

(c) negligently failing to discover the need for treatment. All of these failings are of concern in the emergency room, particularly because the need for prompt intervention is complicated by the lack of prior familiarity with the patient.

But the third category of potential negligence is of special concern, especially when emergency rooms are burdened by many patients who do not really require emergency treatment; in such circumstances, the inclination to refer patients with what appear to be minor, nonurgent problems to other outpatient facilities creates the risk that some problems which could have been uncovered will go undetected, with the result that the patient will suffer further complications by the time treatment is obtained.

This risk can be met by appropriate training of the personnel who perform the admission – and – triage functions in the emergency department. These professionals and the institutions they serve will not be liable simply because a condition has gone un­diagnosed or untreated.

Liability rests on finding that the condition would have been diagnosed by a competent person in the admitting officer’s position and that any delays in providing treatment were inappropriate, given the relative urgency of a patient’s condition compared with that of other patients being treated at the facility.

When the treatment being provided to existing patients renders an emergency room temporarily unable to provide immediate care to new patients with urgent needs, the facility should have well-established procedures to refer new patients to other emergency facilities; this may include means of notifying ambulance companies that urgent cases should be directed to such other facilities.

Outside Emergency Departments. Many emergencies are treated outside of hospital emergency departments: an unexpected complication may arise during surgery, in a recovery room, in a physician’s office, or in other public or private places, such as homes, airplanes, restaurants, or highways.

In all these settings, a health professional rendering aid is held only to the standard of care that could be expected of a like person under similar circumstances.

A general surgeon, for example, is not expected to be a specialist in emergency medicine but is expected to be able to apply the expert knowledge and skills possessed by competent surgeons when faced with an unexpected complication in the course of an operation.

If circumstances permit, a physician faced with a problem of diagnosis or treatment that requires specialized knowledge beyond the physician’s ken has a duty to seek the necessary information or to refer the patient to a specialist, if a reasonably prudent physician would do so, to the extent the circumstances permit such referral or consultation.

Physicians have been particularly concerned that they will be held to the standards that govern treatment in a professional office or hospital when they attempt to provide emergency treatment outside of these familiar settings.

Actually, however, the common law has recognized that in nonoffice and nonhospital settings, different expectations are appropriate, and American physicians have not been held liable for failing to meet the standard of care that would be expected of them in nonemergency situations.

Instead, the courts have only required physicians to exercise the degree of care that other physicians would have used in a similar emergency.

Nonetheless, convinced that physicians’ fear of liability was responsible for failures to respond to the needs of injured people for on-the-spot medical attention, legislatures across the country — beginning with California — have adopted Good Samaritan laws.

Under these statutes, physicians, other health care professionals and, in some statutes, lay people who exercise ordinary reasonable care in providing emergency treat­ment at the scene or place of occurrence (outside of a hospital or doctor’s office) without proper and necessary medical equipment are not liable for harm that arises from their acts or omissions.

The legislatures apparently believed that the protection against liability conferred by the statutes would be sufficient to induce physicians to render necessary emergency assistance; Vermont and Minnesota are alone in imposing a duty on physicians (and ordinary citizens) to act when they know that someone is exposed to grave physical peril, although the American Medical Association Principles of Medical Ethics place a similar moral duty on physicians.

In many states, Good Samaritan legislation (or, in some states, a separate statute) grants paramedics immunity when rendering emergency lifesaving procedures.

There­fore, the paramedic assumes no liability for negligent acts as long as there is an immediate life-threatening situation. This is not to be confused with the immunity which certain Good Samaritan statutes grant to nonemergency health care providers.

Those Good Samaritan statutes do not apply to persons specially trained and prepared to deal with emergency situations, such as emergency medical care professionals. They are intended to protect one who renders care outside his or her area of expertise.

Respondeat Superior

Although nurses, paramedics, and medical “house officers” typically are employees for whose acts a hospital or other health care institution is held legally responsible, most physicians who practice in a hospital are not its employees.

However, a different rule is often applied for emergency departments, resulting in hospitals being held vi­cariously liable for physicians’ negligence.

Sometimes, a hospital employs physicians to staff its emergency department; even when the hospital contracts with physicians to provide this service, some courts have treated the emergency physicians as employees rather than independent contractors, even though the physicians retained the right to make independent medical judgments.

In an emergency requiring immediate action to save a life or prevent permanent injury, a health care professional should make a reasonable attempt to procure consent, although it is not a legal prerequisite to emergency treatment.

If it is impossible to obtain a patient’s consent due to circumstances of the emergency, consent should be sought from someone legally authorized to act for the patient; however, when delaying to obtain such consent would subject the patient to the risk of death or serious bodily injury, a health care professional may undertake the procedures required to avoid or reduce this risk without liability for failure to obtain the consent.

The same rule applies if a life-threatening or impairing condition is discovered during an operation and consent cannot be obtained.

The courts today are less insistent that the emergency be a dire one if the medical intervention does not involve a permanent alteration of the patient, such as amputation or sterilization; generally, the extent of the intervention should be proportionate to the emergency itself.

Besides dispensing with consent entirely, some states also permit physicians to treat in emergencies without making a full disclosure of the risks (and benefits) of the proposed treatment and of any alternatives as would otherwise be required.

It is sometimes said that “implied consent” governs such emergencies, but it would be more accurate to say that the law presumes valid consent for any necessary treatment because it is not an action by the patient that implies what he or she wants but rather a legal presumption that the average reasonable person would consent to treatment needed to save life.

Obviously, the rule does not apply if the patient expressly refused to consent to the treatment before he or she became unconscious under normal cir­cumstances or if the patient remains conscious in the emergency.

Schools and camps commonly use emergency care consent forms which provide for limited protection against lawsuits. The forms are evidence of parental consent delegated to camp or school officials who seek appropriate emergency care on a child’s behalf.

They also allow health care institutions and professionals to perform noninvasive diagnostic tests while attempting to obtain informed consent. There realistically is no way to ascertain a medical risk without examination and diagnosis.

Furthermore, mental institutions may treat patients in emergency situations without prior court approval so long as such treatment meets acceptable standards.

Refusal of Consent. Although the term “informed consent” might seem to suggest that the law expects patients to agree with their physicians, the concept actually en­compasses — indeed, is grounded in — the patient’s right to refuse medical interventions even when they are deemed essential to life.

That medical experts think the refusal is unreasonable and might cause death does not affect the patient’s right to make such a decision.

The law does override consent when treatment is necessary to protect the health of others, however, as in vaccination and quarantine; further, the Supreme Court of Georgia recently upheld the authority of a judge to subject an unconsenting pregnant woman to surgery over her religiously based objections in order to lessen the risk of death to her fetus.

In practical terms, the right to refuse treatment is often compromised by the unwillingness of physicians and other health care professionals to regard refusals of treatment as competent choices.

On the whole, this reluctance is probably more than a mere bias of the health care professions; in all likelihood, the general members of society expect these professionals to favor life and health and to discourage those de­cisions and actions believed to be harmful to patients. Thus, as the President’s Com­mission concluded:

Health care professionals serve patients best by maintaining a presumption in favor of sustaining life, while recognizing that competent patients are entitled to choose to forego any treatments, including those that sustain life.

In the context of emergency medicine, treatment refusals raise two major ques­tions: Is this patient competent to refuse? If not, may someone else refuse care on the patient’s behalf?

The determination of a patient’s competence is crucial, “since a lack of competence, or even the questioning of an individual’s competence, deprives the individual of the liberty to make treatment decisions”.

Although physicians and other providers may take a patient’s refusal of recommended treatment as a trigger for evaluating the patient’s competence, mere disagreement with the patient is not an adequate ground for the finding that a patient lacks the capacity to make the decision in question, since such disagreement may reflect nothing more than a difference between the goals and values of the provider and those of the patient.

A determination of lack of decision-making capacity should rest instead on as careful an evaluation of the patient’s ability to understand and appreciate his or her situation and the relevant aspects of the medical intervention being offered. Plainly, this task — always problematic — is made that much harder by an emergency.

If a patient is incapable of deciding and a guardian is already present or is appointed for the patient, the guardian becomes the patient’s surrogate decision maker. It is generally held, however, that a surrogate’s authority to decline life-sustaining treatment is more limited than is one’s authority to make this decision for one’s self.

In the absence of a clear indication that the patient would, if competent, refuse the treatment, a surrogate decision maker must decide in the way that a reasonable person would in trying to achieve his or her own “best interest”.

In some states, the courts have held that a surrogate can never forego life-sustaining treatment (unless based upon the patient’s clearly expressed views), but the trend is to allow the surrogate to decline treatment, with or without judicial review in each case, provided that doing so advances the best interests of the patient.

While court decisions recognizing the acceptability of relying on relatives and guardians to decide about treatment have generally arisen in drawn-out, nonemergency situations, at least one recent statute grants this decision-making authority in a manner that could, in medically appropriate circumstances, allow emergency treatment to be refused. Such a decision would, as a practical as well as a legal matter, have to rest upon the concurrence of the attending physician.

Where the physician or others caring for the patient find that the decision to refuse treatment by an incompetent’s guardian is unreasonable, court review of the guardian’s authority should be sought, and necessary life-sustaining treatment may be continued to maintain the “status quo,” pending the outcome.

For example, in Collins v. Davis, the hospital administrator sought a court order to permit emergency treatment because the patient was incompetent and her spouse refused to consent.

The court held that the spouse’s refusal interfered with the hospital’s efforts to render emergency treatment in conformance with good medical practice.

Similarly, in numerous cases, courts have taken temporary custody of children from their parents and have appointed substitute guardians to consent to lifesaving medical treatment, especially when the parents’ religious views have endangered the child’s best interests.

Resuscitation. One of the medicolegal areas that currently seems particularly troublesome to physicians, nurses, and hospital officials is whether and in what fashion to permit “no code” or “do not resuscitate” (DNR) orders to be written for patients.

Although resuscitation is common in emergency rooms, the particular perplexities that some have found in DNR orders are of little relevance in the emergency setting.

The reason concerns arose elsewhere in the hospital was that with the growing sophistication of techniques for cardiopulmonary resuscitation, it became standard prac­tice in many hospitals to attempt resuscitation on all patients who suffered cardiac arrest.

In time, questions about the wisdom of such a policy led to the suggestion that orders not to resuscitate should be written for certain patients — because the only way to prevent resuscitation was to make a decision in advance, since the need to employ the resuscitation techniques rapidly precludes careful evaluation and deliberation at the time of an arrest.

Doubts were expressed by some people about the advisability of writing out a “nontreatment” order on patients; these concerns have now been laid to rest on the ground that patients may decline resuscitation (just like any other treatment) and that if a patient is incapacitated and cannot make such a decision, it can be made by others deciding on the patient’s behalf, since there is no obligation to employ treatment modalities that are likely to prove futile or otherwise to fail to promote a patient’s interests.

In an emergency department and, indeed, at the scene of an emergency or in an ambulance on the way to the hospital, cardiopulmonary resuscitation is a basic form of treatment, when rendered both by health care personnel or by trained laypeople.

In these circumstances, there is no opportunity for advance deliberation and the writing of DNR orders. Instead, the decision to commence or continue efforts to resuscitate a patient is based on the same standards that govern the use of all other medical techniques.

Although only a small percentage of cardiopulmonary resuscitations eventuate in the patient’s being discharged from the hospital, an attending physician should decide to forego the procedure only when there is enough information to make an “adequately informed judgment” that the results will be unfavorable to the patient.

Similarly, emergency personnel must use the same standards of reasonable care in deciding whether to follow the directions of a surrogate decision maker who asserts that an unconscious patient did not want to be resuscitated.

In order to ensure patient-based decision making and to provide legal protection to emergency medical personnel, a community’s hospitals, ambulance companies, and other mobile emergency services, physicians, and prosecuting attorneys should develop appropriate policies and procedures for “DNR orders” that will apply in out – of – hospital settings.

In cases of doubt (where the surrogate’s authority to speak for the patient is unclear, or the surrogate is distraught or inarticulate or lacks any proof of the patient’s wishes), appropriate medical steps should be taken to preserve the patient’s life.

Once the crisis has passed, the continuation or cessation of any life-support procedures can then be decided by the patient’s duly recognized surrogate decision maker, typically the next of kin.