What can be done if the DPOA and DNR forms were incomplete and resident was not resuscitated in ER? 18 Answers as of May 19, 2014

A Do Not Resuscitate (DNR) is listed on a nursing home resident's nursing home records. The resident is rushed from the nursing home to the ER unconscious. The ER calls resident's son assuming he is the DPOA since he listed in the nursing home records as such. Son tells them not to resuscitate resident. The hospital abides by the DPOA's wishes. The resident dies. Later, it is found that the DPOA form was incomplete. It only had 1 witness signature, not the required 2. Not only that, but the DNR form is found to have no witnesses signatures on it. Is this a case of negligence and wrongful death? If so, who could be held liable? The hospital for assuming son the son was DPOA without seeing proof? The nursing home assuming son was DPOA without seeing proof? The son for assuming he was DPOA?

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Edward L. Armstrong, P.C. | Edward L. Armstrong
There is no doubt that the nursing home and the hospital should have seen the power of attorney or the signed DNR statement. Usually, hospitals are quite careful about this. I don't know about nursing homes. It does seem that negiligence was a big factor but whether you can establish this fact to prove "wrongful death" is another question. I would suggest consulting with a personal injury attorney on the issue.
Answer Applies to: Missouri
Replied: 5/19/2014
Christine Sabio Socrates Attorney at Law | Christine Socrates
It sounds like there is negligence on the part of the hospital and nursing home for not verifying these forms. The son may have assumed he was DPOA if the documents named him as such but it was up to the other institutions to verify they were valid before acting on them.
Answer Applies to: Ohio
Replied: 5/14/2014
Ronald K. Nims LLC | Ronald K. Nims
In the absence of a properly executed DPOA, the decision goes to the treating physicians. Whether there is a DPOA or not physicians generally consult with family members. Where the patient has requested a DNR from her caregivers, even if the DNR isn't properly executed, it would be given great weight. Do you want this resident to be tortured to have few more days of insensate life?
Answer Applies to: Ohio
Replied: 4/25/2014
Law Ofices of Edwin K. Niles | Edwin K. Niles
Sounds as if there is plenty of negligence to go around. But before we even get there, wrongful death claims are based on economics. Was Dad working and supporting his family? Damages are an essential part of any claim.
Answer Applies to: California
Replied: 4/24/2014
Goldsmith & Guymon
Goldsmith & Guymon | Dara Goldsmith
In Nevada, if the son was the only child he may be authorized to make that decision. Sit down with legal counsel to review all facts and documents. Without seeing what was signed or what law it was signed under it is hard to say if it was valid or not. In Nevada a power of attorney for health care does not need witnesses, a notary is sufficient.
Answer Applies to: Nevada
Replied: 4/24/2014
    James E. Hasser, Jr. P.C.
    James E. Hasser, Jr. P.C. | Jim Hasser
    It takes the opinion of a medical expert to answer your question. Medical malpractice lawyers typically have such experts available. Consider consulting one.
    Answer Applies to: Alabama
    Replied: 4/24/2014
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    No case of negligence; the nursing home could only work with what it had for information re the DPOA and DNR, and apparently notified then individuals listed in the documentation prior to death of the individual.
    Answer Applies to: California
    Replied: 4/24/2014
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    Probably nobody. Who is going to prove that resident would have been healed?
    Answer Applies to: California
    Replied: 4/24/2014
    Paul Whitfield and Associates P.A.
    Paul Whitfield and Associates P.A. | Paul L. Whitfield
    Doesn't sound like much of a case to me. the substance of a matter is usually important. in this case there was a do not resuscitate order and the confirmation by the atty in fact. And besides all that the time had come for the dear lady so you want to say that if there were some small defect in the paperwork which was reviewed after the fact that this gives you a good claim for negligence. I don't think so.
    Answer Applies to: North Carolina
    Replied: 4/24/2014
    James Law Group
    James Law Group | Christine James
    Without more information such as the age of the resident and his medical condition, it would be impossible to advise you. It is possible that everyone acted reasonably under the circumstances and if you don't agree, you will need to seek out an attorney and be able to prove otherwise.
    Answer Applies to: California
    Replied: 4/24/2014
    Gates' Law, PLLC | Thomas E. Gates
    Everyone acted in good faith in an emergency necessity.
    Answer Applies to: Washington
    Replied: 4/24/2014
    Danville Law Group | Scott Jordan
    Why is anyone negligent? The resident clearly did not want to be resuscitated and wanted the son to have power of attorney. If anyone were negligent, it would be hospital for not verifying the information. However, under the circumstances, I cannot see how they would be found negligent.
    Answer Applies to: California
    Replied: 4/24/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    I don't think you have a case of anything here. If son knew that dad did not want to be resuscitated, then he was following dad's wishes. And if he had been resuscitated, how much longer would he have lived? While these may be technical violations, I don't see a court imposing liability on anybody here.
    Answer Applies to: Idaho
    Replied: 4/24/2014
    Andrew T. Velonis, P.C.
    Andrew T. Velonis, P.C. | Andrew Velonis
    Everyone did the right thing, so there is no point in arguing technicalities. Further, it is doubtful that anyone could prove that the result would have been different. The DNR was in fact signed, lack of requisite witnesses notwithstanding, so the DPOA and the hospital did in fact follow the decedent's wishes.
    Answer Applies to: New York
    Replied: 4/24/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    I doubt there is any liability on anyone's part. The deceased apparently wished not to be resuscitated because he or she signed DNR and DPOA forms, even if they weren't properly witnessed. The hospital needed someone to confirm the DNR, relied on the information the nursing home had been given by the family, and contacted the person everyone believed had the authority to respond. That person confirmed the deceased's wishes. The hospital didn't have time to contact everyone who might have an opinion on the matter because it was an emergency situation. Even if the documents were invalid, the hospital contacted an immediate family member and asked for directions. Once given directions, the hospital complied. The only way there might be some liability would be if the DNR and DPOA were forged by someone who knew that the deceased had other wishes.
    Answer Applies to: Nebraska
    Replied: 4/24/2014
    Frederick & Frederick PLC | James P Frederick
    This sounds kind of like a law school question. I would say that there is no malpractice and no claim. It very likely says in the DPOA that any party honoring its terms is protected from liability. That lets out the hospital and nursing home. You do not say whether the DPOA was notarized or not. If it was, then witnesses are not needed at all. I am not sure about the DNR form. That may not need witnesses, either, but that would vary from facility to facility, because there is no state authorized form for that. As far as the son is concerned, if the hospital recognized him as the next of kin or the authorized party, it can accept his authority, certainly in the absence of any indication to the contrary. Situations like this are very often judgment calls made during a crisis situation. It is always easy to criticize and second-guess, when time has elapsed and tensions have eased. If a facility is sued every time it honors someone's end of life decisions, NONE of those decisions will be honored in the future. That is not good policy.
    Answer Applies to: Michigan
    Replied: 4/24/2014
    Law Office of Andrew Oostdyk
    Law Office of Andrew Oostdyk | Andrew Oostdyk
    Is this a Law School Final Exam question? In Texas, the POA and DNR are notarized to show proof that the signature on the documents has been verified to be the one who has signed them. If it can be shown that the deceased actually signed the docs and wished to have a DNR directive in place, then his intent was carried out. If the one witness to the POA can be found and testify that they saw the deceased signed the POA, again the intent was carried out.
    Answer Applies to: Texas
    Replied: 4/24/2014
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