S T A T E O F N E W Y O R K
________________________________________________________________________
9648
I N A S S E M B L Y
May 14, 2014
___________
Introduced by M. of A. GOTTFRIED -- read once and referred to the
Committee on Health
AN ACT to amend the public health law and the surrogate's court proce-
dure act, in relation to restoring medical futility as a basis for
both surrogate consent to a do not resuscitate order and for a do not
resuscitate order for a patient without a surrogate
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. Under New York's former do not resus-
citate (hereinafter "DNR") law, article 29-B of the public health law, a
surrogate could consent to a DNR order if the patient met any one of
four clinical criteria, one of which was a finding by two physicians
that resuscitation was "medically futile," which was defined to mean
that resuscitation "will be unsuccessful in restoring cardiac and
respiratory function or that the patient will experience repeated arrest
in a short time period before death occurs." The former DNR law also
allowed a DNR order to be entered for a patient who did not have a
surrogate on that basis. That law applied to all patients, including
developmentally disabled patients.
In 2010, the former DNR law was superseded by the Family Health Care
Decisions Act (hereinafter "FHCDA") which established standards for the
withdrawal or withholding of a broad range of life-sustaining treat-
ments. Accordingly, the FHCDA did not have a standard specifically
relating to medically futile resuscitation. Similarly, Surrogate's Court
Procedure Act (hereinafter "SPCA") S1750-b does not have a standard
specifically relating to medically futile resuscitation for develop-
mentally disabled patients.
The legislature finds that the broader FHCDA and SPCA S1750-b stand-
ards are difficult to apply to situations in which resuscitation would
be medically futile. Accordingly, this bill restores the former DNR
law's medical futility standard as an alternative basis for writing a
DNR order under the FHCDA and under SCPA S1750-b.
S 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
section 2994-d of the public health law, as added by chapter 8 of the
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13627-03-4
A. 9648 2
laws of 2010, are amended and a new subparagraph (iii) is added to read
as follows:
(i) Treatment would be an extraordinary burden to the patient and an
attending physician determines, with the independent concurrence of
another physician, that, to a reasonable degree of medical certainty and
in accord with accepted medical standards, (A) the patient has an
illness or injury which can be expected to cause death within six
months, whether or not treatment is provided; or (B) the patient is
permanently unconscious; [or]
(ii) The provision of treatment would involve such pain, suffering or
other burden that it would reasonably be deemed inhumane or extraor-
dinarily burdensome under the circumstances and the patient has an irre-
versible or incurable condition, as determined by an attending physician
with the independent concurrence of another physician to a reasonable
degree of medical certainty and in accord with accepted medical stand-
ards[.]; OR
(III) WITH RESPECT TO A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF A
SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY, THAT IN
THE EVENT OF A CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WOULD BE
UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT THE
PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD BEFORE
DEATH OCCURS.
S 3. Paragraph (b) of subdivision 5 of section 2994-g of the public
health law, as added by chapter 8 of the laws of 2010, is amended to
read as follows:
(b) If the attending physician, with independent concurrence of a
second physician designated by the hospital, determines to a reasonable
degree of medical certainty that:
(i) (A) life-sustaining treatment offers the patient no medical bene-
fit because the patient will die imminently, even if the treatment is
provided; and
[(ii)] (B) the provision of life-sustaining treatment would violate
accepted medical standards, then such treatment may be withdrawn or
withheld from an adult patient who has been determined to lack deci-
sion-making capacity pursuant to section twenty-nine hundred ninety-
four-c of this article, without judicial approval. This paragraph shall
not apply to any treatment necessary to alleviate pain or discomfort; OR
(II) IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WILL
BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT
THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
BEFORE DEATH OCCURS, THEN AN ORDER NOT TO RESUSCITATE MAY BE ENTERED FOR
AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI-
TY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTI-
CLE, WITHOUT JUDICIAL APPROVAL.
S 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of
section 1750-b of the surrogate's court procedure act, as added by chap-
ter 500 of the laws of 2002, are amended to read as follows:
(i) the mentally retarded person has a medical condition as follows:
A. a terminal condition, [as defined in subdivision twenty-three of
section twenty-nine hundred sixty-one of the public health law] WHICH
SHALL MEAN AN ILLNESS OR INJURY FROM WHICH THERE IS NO RECOVERY, AND
WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or
B. permanent unconsciousness; or
A. 9648 3
C. a medical condition other than such person's mental retardation
which requires life-sustaining treatment, is irreversible and which will
continue indefinitely; [and] OR
D. IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
THAT IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST SUCH RESUSCITATION
WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
BEFORE DEATH OCCURS; AND
(ii) EXCEPT IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUS-
CITATE BASED ON CLAUSE D OF SUBPARAGRAPH (I) OF THIS PARAGRAPH, the
life-sustaining treatment would impose an extraordinary burden on such
person, in light of:
A. such person's medical condition, other than such person's mental
retardation; and
B. the expected outcome of the life-sustaining treatment, notwith-
standing such person's mental retardation; and
S 5. Subdivision 4 of section 1750-b of the surrogate's court proce-
dure act is amended by adding new paragraph (f) to read as follows:
(F) IN THE CASE OF A PERSON FOR WHOM "GUARDIAN" MEANS A SURROGATE
DECISION-MAKING COMMITTEE PURSUANT TO THIS SECTION, AN ORDER NOT TO
RESUSCITATE MAY BE ENTERED, WITHOUT REVIEW OR APPROVAL BY SUCH COMMIT-
TEE, IF THE ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCUR-
RENCE OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAIN-
TY, THAT IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST RESUSCITATION
WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
BEFORE DEATH OCCURS.
S 6. This act shall take effect on the ninetieth day after it shall
have become a law.