S T A T E O F N E W Y O R K
________________________________________________________________________
3991--B
Cal. No. 304
2017-2018 Regular Sessions
I N A S S E M B L Y
January 30, 2017
___________
Introduced by M. of A. GOTTFRIED, ABINANTI, SEPULVEDA -- read once and
referred to the Committee on Health -- reported and referred to the
Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- ordered to a
third reading, amended and ordered reprinted, retaining its place on
the order of third reading
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In 2010, the former DNR law was superseded by the Family Health Care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") §1750-b does not have a standard
specifically relating to medically futile resuscitation for develop-
mentally disabled patients.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02525-04-8
A. 3991--B 2
The legislature finds that the broader FHCDA and SPCA §1750-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 §1750-b.
§ 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
section 2994-d of the public health law, as amended by chapter 430 of
the laws of 2017, 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 or attending nurse practitioner determines, with the
independent concurrence of another physician or nurse practitioner,
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
or attending nurse practitioner with the independent concurrence of
another physician or nurse practitioner to a reasonable degree of
medical certainty and in accord with accepted medical standards[.]; 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.
§ 3. Paragraph (b) of subdivision 5 of section 2994-g of the public
health law, as amended by chapter 430 of the laws of 2017, is amended to
read as follows:
(b) If the attending physician or attending nurse practitioner, with
independent concurrence of a second physician or nurse practitioner
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]
SUBPARAGRAPH 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.
A. 3991--B 3
§ 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of
section 1750-b of the surrogate's court procedure act, as amended by
chapter 198 of the laws of 2016, are amended to read as follows:
(i) the person who is intellectually disabled 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
C. a medical condition other than such person's intellectual disabili-
ty 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 intellec-
tual disability; and
B. the expected outcome of the life-sustaining treatment, notwith-
standing such person's intellectual disability; and
§ 5. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that if chapter 430 of the laws of
2017 shall not have taken effect on or before such date, then sections
two and three of this act shall take effect on the same date as chapter
430 of the laws of 2017, takes effect.