Reuters Legal News, “Navigating Legal Disputes involving do not resuscitate orders,” by Abbye Alexander, Esq., Christopher Tellner, Esq., and Henry Norwood, Esq.,10-29-2025
Kaufman Dolowich’s Abbye Alexander and Christopher Tellner, Co-Chairs of the Health Care/Managed Care Practice Group and Of Counsel Henry Norwood wrote an insightful article for Reuters on the legal pitfalls of Do Not Resuscitate orders (DNRs) and key considerations.
Navigating legal disputes involving do not resuscitate orders
Do Not Resuscitate orders (DNRs) involve difficult, deeply personal decisions by patients who elect not to receive lifesaving care in the event the patients are unable to voice their consent or refusal. Once this decision is made and the decision is put in writing, patients may assume this is the end of the issue and their intent will be followed. For many patients, however, this is not the case.
Numerous lawsuits surrounding patient DNRs spanning several decades make clear that DNRs often result in highly contentious disputes between patients, their families, and healthcare providers. Often, DNR disputes involve the death of the patient who executed the DNR, which can be emotionally devastating and pose significant liability risk to healthcare providers. Understanding how DNR disputes arise, and the common legal issues involved in such disputes can aid healthcare providers, patients, and counsel to draft and interpret DNRs on the front-end, in addition to navigating DNR litigation if a dispute occurs.
DNRs in litigation
A DNR is an order from a patient instructing healthcare providers to refrain from providing specified, emergency medical care under certain circumstances. Generally, DNRs become effective when the patient suffers harm, necessitating emergency medical care to save their life, or at times when the patient is at the end stages of life.
When this type of medical incident occurs, providers must be aware of the patient’s DNR, which is generally made part of the patient’s medical record. It is then incumbent on the providers to interpret the DNR and act accordingly in rendering or refraining from rendering life-saving care.
The most recent DNR litigation generally falls into one of two theories of liability against healthcare providers: (1) cases involving alleged misinterpretation of a patient’s DNR; and (2) cases involving the alleged wrongful creation of a DNR without the patient’s consent.
Misinterpretation of DNRs
DNRs are intended to be straightforward, brief legal
documents, but established caselaw demonstrates DNRs are frequently misread or misinterpreted by healthcare providers. In Stoots v. Marion Life Saving Crew, Inc. (Court of Appeals of Virginia, 2025), an emergency medical services provider arrived at the home of a patient who was having difficulties breathing.
The patient’s sister provided the EMTs with the patient’s Advance Directive, which simply stated that the patient authorized his sister to make medical decisions on his behalf. However, one of the EMTs misread the Advance Directive and believed it to be a DNR providing that no “extraordinary care” be provided to the patient. The patient’s sister informed the EMT this was not the case and requested he be provided emergency care. The EMTs drove the patient to a hospital, but the patient died en route. The EMTs did not attempt resuscitation, relying on the misinterpretation of the patient’s Advance Directive.
The patient’s sister sued the individual EMT and the emergency medical services provider. The fact that the EMT misread the Advance Directive was undisputed in the case. In fact, the patient had no DNR and the court quickly reasoned the EMT should have fully read the Advance Directive before acting on it, even in an emergency situation such as the one at hand. The court found the EMT and the emergency services provider were negligent and possibly grossly negligent.
Wrongful creation of DNRs
A separate line of cases pertains to the alleged wrongful creation of a patient’s DNR. In cases brought under this theory of liability, the healthcare providers allegedly implemented a DNR without the consent of the patient or deceived the patient into signing a DNR.
In Lageson v. Eldris (Court of Appeals of Nevada, 2024), a patient was admitted to a hospital at which the defendant, a physician, diagnosed her with pneumonia. The defendant noted a DNR, including a do not intubate order, in her chart that had allegedly been created without the patient’s consent by another physician. The defendant did not inform the patient or her son, who had authority to make medical decisions on her behalf, of the DNR. The patient died soon afterward.
The patient’s son sued the physician for wrongful death, arguing the defendant relied on the DNR that had been created without the patient’s consent, which resulted in the defendant withholding lifesaving care.
The appellate court found that the plaintiff’s allegations did have merit as a negligence claim, but ultimately affirmed the dismissal of the lawsuit due to the plaintiff’s failure to comply with Nevada’s pre-suit medical malpractice affidavit requirements.
Earlier this year, a medical malpractice jury trial in Wisconsin resulted in a defense verdict in favor of a hospital accused of creating a DNR on behalf of a 19-year-old patient. Schara v. Ascension Wisconsin (Wisconsin Circuit Court Outagamie County, 2025) involved a young patient admitted to the defendant-hospital with COVID-19.
According to the plaintiffs, family members of the patient, the hospital created a DNR for the patient without her consent and administered a combination of drugs that resulted in her death one week after her admission. In the resulting wrongful death suit, the jury found the plaintiffs had not met their burden to establish the hospital’s conduct fell below the standard of care, caused the patient’s death, or that the hospital created the DNR without the patient’s consent. The jury returned a verdict in favor of the hospital.
Expert opinion needed?
An interesting argument raised in the Stoots matter is whether an expert opinion as to a defendant-medical provider’s standard of care and breach thereof is necessary in a case involving the failure to correctly read or interpret a DNR. The issue is crucial because most states require or heavily favor expert testimony regarding the provider’s standard of care and breach.
The plaintiff in Stoots argued that the provider’s failure to correctly read the clear, unambiguous DNR was so straightforward that it constituted a matter of common sense and did not require an expert to opine on. The court disagreed, holding that, although it did appear clear that the provider was negligent in his failure to properly read the DNR, the plaintiff was still required to present expert testimony on the issue and their failure to do so warranted a judgment in favor of the provider.
Good Samaritan Laws
A significant factor that providers, patients, and their counsel should be aware of in DNR litigation is the potential impact of Good Samaritan Laws. Good Samaritan Laws are state statutes that, generally, immunize volunteer medical service providers from liability resulting from their conduct in providing emergency care. There are typically exceptions to this immunity, often involving the volunteer’s gross negligence or intentional conduct causing harm to a patient.
The Stoots case offers an example of this factor, as the case involved a volunteer provider serving under a nonprofit emergency services provider organization. The plaintiff in the case sued both the individual provider and the nonprofit. Early in the case, the individual provider was able to obtain a judgment in his favor by arguing he was immunized from liability under Virginia’s Good Samaritan Law, as a volunteer EMT, despite the court’s findings that the EMT was clearly negligent in misreading the DNR.
Parties and counsel in DNR litigation should always be cognizant whether the healthcare provider is providing volunteer services, as the provider may be immune under an applicable Good Samaritan Law.
Conclusion
DNRs can have life and death implications as the cases discussed clearly demonstrate. It is vital that healthcare providers understand the importance of thoroughly reviewing DNRs to ensure the patient’s desires are complied with and that patients fully consent before providers aid in creating a patient’s DNR. From the patient perspective, patients should understand that healthcare providers are often faced with emergency situations requiring quick decision-making.
Ensuring a patient’s DNR is clear, straightforward, and provided to healthcare providers ahead of time can mitigate the risk of DNR disputes.
Abbye E. Alexander and Christopher J. Tellner are regular, joint contributing columnists on health care litigation for Reuters Legal News and Westlaw Today.
About the authors
Abbye E. Alexander (L) is co-managing partner of Kaufman Dolowich LLP’s Orlando, Fla. office and co-chair of the firm’s health care and managed care practice group. She focuses her practice on issues affecting national and local businesses to include health care professionals, organizations and facilities, including long-term care facilities, assisted living facilities, rehabilitation centers and doctors. She may be reached at aalexander@kaufmandolowich.com. Christopher J. Tellner (C) is a partner in the firm’s Philadelphia, Pennsylvania, office and co-chair of the firm’s health care and managed care practice group. He specializes in professional liability defense, including the defense of health care facilities and practitioners. Prior to entering the legal profession, he worked as a health care professional. He may be reached at ctellner@kaufmandolowich.com. Henry E. Norwood (R) is of counsel with the firm. He concentrates his practice in ERISA litigation and compliance, health care and managed care litigation and compliance, general liability, commercial litigation, and employment law. He defends clients in claims arising from disputes in defined benefit plans and defined contribution plans, including benefits claims by participants, claims for breach of fiduciary duty, and multi-employer welfare administrators in benefit payment. He may be reached at henry.norwood@kaufmandolowich.com.
This article was first published on Reuters Legal News and Westlaw Today on Oct. 29, 2025.
