PRINTER'S NO. 75
No. 96 Session of 1999
INTRODUCED BY FLEAGLE, BARRAR, BELARDI, BROWNE, CORNELL,
FAIRCHILD, GEIST, HARHAI, HENNESSEY, HERMAN, JOSEPHS,
LAUGHLIN, NICKOL, PESCI, ROSS, RUBLEY, SATHER, SAYLOR,
SCHULER, SCRIMENTI, B. SMITH, STEVENSON, E. Z. TAYLOR, TIGUE,
TRAVAGLIO, VANCE, C. WILLIAMS, M. N. WRIGHT, MUNDY, HERSHEY,
TRELLO, SEYFERT, CAPPABIANCA, BENNINGHOFF, S. MILLER AND
SOLOBAY, JANUARY 20, 1999
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 20, 1999
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 advance directives for emergency medical service health care;
4 and making an appropriation.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Sections 5403, 5407, 5410(b), 5411, 5413 and 5415
8 of Title 20 of the Pennsylvania Consolidated Statutes are
9 amended to read:
10 § 5403. Definitions.
11 The following words and phrases when used in this chapter
12 shall have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Attending physician." The physician who has primary
15 responsibility for the treatment and care of the declarant.
16 "Declarant." A person who makes a declaration in accordance
1 with this chapter.
2 "Declaration." A written document voluntarily executed by
3 the declarant in accordance with this chapter.
4 "Emergency medical service provider." A health care provider
5 recognized under the act of July 3, 1985 (P.L.164, No.45), known
6 as the Emergency Medical Services Act.
7 "Emergency medical services do-not-resuscitate bracelet" or
8 "EMS-DNR bracelet." A bracelet in the standard format set forth
9 in section 5413 (relating to emergency medical services),
10 supplied by the Department of Health and issued by the attending
11 physician, which may be worn, at the declarant's option, to
12 notify emergency medical service providers of the presence of a
13 do-not-resuscitate order.
14 "Emergency medical services do-not-resuscitate card" or "EMS-
15 DNR card." A wallet-sized card in the standard format set forth
16 in section 5413 (relating to emergency medical services),
17 supplied by the Department of Health and issued by the attending
18 physician, which may be displayed, at the declarant's option, to
19 notify emergency medical service providers of the presence of a
20 do-not-resuscitate order.
21 "Emergency medical services do-not-resuscitate order" or
22 "EMS-DNR order." An order in the standard format set forth in
23 section 5413 (relating to emergency medical services), supplied
24 by the Department of Health and issued by the attending
25 physician, directing emergency medical service providers to
26 withhold cardiopulmonary resuscitation (cardiac compression,
27 endotracheal intubation, artificial ventilation, defibrillation
28 and other related procedures) from the declarant in the event of
29 respiratory or cardiac arrest.
30 "Health care provider." A person who is licensed or
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1 certified by the laws of this Commonwealth to administer health
2 care in the ordinary course of business or practice of a
3 profession. The term includes personnel recognized under the act
4 of July 3, 1985 (P.L.164, No.45), known as the Emergency Medical
5 Services Act.
6 "Incompetent." The lack of sufficient capacity for a person
7 to make or communicate decisions concerning himself.
8 "Invasive airway technique." Any advanced airway technique,
9 including endotracheal and esophageal intubation.
10 "Life-sustaining treatment." Any medical procedure or
11 intervention that, when administered to a qualified patient,
12 will serve only to prolong the process of dying or to maintain
13 the patient in a state of permanent unconsciousness. Life-
14 sustaining treatment shall include nutrition and hydration
15 administered by gastric tube or intravenously or any other
16 artificial or invasive means if the declaration of the qualified
17 patient so specifically provides.
18 ["Medical command physician." A licensed physician who is
19 authorized to give medical command under the act of July 3, 1985
20 (P.L.164, No.45), known as the Emergency Medical Services Act.]
21 "Permanently unconscious." A medical condition that has been
22 diagnosed in accordance with currently accepted medical
23 standards and with reasonable medical certainty as total and
24 irreversible loss of consciousness and capacity for interaction
25 with the environment. The term includes, without limitation, a
26 persistent vegetative state or irreversible coma.
27 "Person." An individual, corporation, partnership,
28 association or Federal, State or local government or
29 governmental agency.
30 "Qualified patient." A person who has executed a declaration
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1 and who has been determined to be in a terminal condition or to
2 be permanently unconscious.
3 "Terminal condition." An incurable and irreversible medical
4 condition in an advanced state caused by injury, disease or
5 physical illness which will, in the opinion of the attending
6 physician, to a reasonable degree of medical certainty, result
7 in death regardless of the continued application of life-
8 sustaining treatment.
9 § 5407. Liability.
10 (a) General rule.--No physician, emergency medical service
11 provider or other health care provider who, consistent with this
12 chapter, causes or participates in the initiating, continuing,
13 withholding or withdrawal of life-sustaining treatment from a
14 qualified patient who is incompetent shall, as a result thereof,
15 be subject to criminal or civil liability or be found to have
16 committed an act of unprofessional conduct if the attending
17 physician has followed the declarant's wishes as expressed
18 earlier by the declarant in the form of a declaration and/or
19 EMS-DNR order executed pursuant to this chapter.
20 (b) Absence of declaration or EMS-DNR order, bracelet or
21 card.--The absence of a declaration or EMS-DNR order, bracelet
22 or card by a patient shall not give rise to any presumption as
23 to the intent of the patient to consent to or to refuse the
24 initiation, continuation or termination of life-sustaining
25 treatment.
26 § 5410. Effect on suicide and life insurance.
27 * * *
28 (b) Life insurance.--The making of or failure to make a
29 declaration or EMS-DNR order in accordance with this chapter
30 shall not affect in any manner the sale, procurement or issuance
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1 of any policy of life insurance nor shall it be deemed to modify
2 the terms of an existing policy of life insurance. No policy of
3 life insurance shall be legally impaired or invalidated in any
4 manner by the withholding or withdrawal of life-sustaining
5 treatment from an insured patient, notwithstanding any term of
6 the policy to the contrary.
7 § 5411. Declaration optional.
8 No physician or other health care provider and no health care
9 service plan, health maintenance organization, insurer issuing
10 disability insurance, self-insured employee welfare benefit
11 plan, nonprofit hospital plan or Federal, State or local
12 government sponsored or operated program shall:
13 (1) require any person to execute a declaration or EMS-
14 DNR order as a condition for being insured for or receiving
15 health care services; or
16 (2) charge any person a different rate or fee whether or
17 not the person executes or has executed a declaration.
18 § 5413. Emergency medical services.
19 (a) Care given prior to declaration taking effect.--Nothing
20 in this chapter shall be construed to make the provisions of a
21 declaration apply to care given to a patient by emergency
22 medical services personnel prior to the declaration's becoming
23 operative under sections 5405 (relating to when declaration
24 becomes operative) and 5408 (relating to duty of physician to
25 confirm terminal condition).
26 [(b) Care given after declaration takes effect.--The
27 provisions of a declaration shall apply to care given to a
28 patient by emergency medical services personnel after the
29 declaration becomes operative under sections 5405 and 5408 only
30 if:
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1 (1) an original declaration, signed by the declarant or
2 other authorized person, is presented to the emergency
3 medical services personnel. The emergency medical services
4 personnel must immediately notify the medical command
5 physician of the presence of the declaration; or
6 (2) the medical command physician, based on prior
7 notification by the attending physician or other health care
8 provider that a valid and operative declaration exists,
9 directs the emergency medical service personnel according to
10 the provisions of the declaration.
11 (c) Uncertainty regarding validity of declaration.--
12 Emergency medical services personnel confronted with any
13 conflicting information regarding the patient's wishes for life-
14 sustaining treatment shall act according to the accepted
15 treatment protocols and standards appropriate to their level of
16 certification.]
17 (b) EMS-DNR orders, bracelets and cards.--The attending
18 physician who makes the determination pursuant to section
19 5405(2) (relating to when declaration becomes operative) shall,
20 if appropriate based on the declaration, issue to the declarant
21 an emergency medical services do-not-resuscitate order, and may
22 issue at the request of the declarant or his surrogate an EMS-
23 DNR bracelet and/or card supplied by the Department of Health.
24 The declarant may, at the declarant's option, wear the bracelet
25 and/or display the order or card to notify emergency medical
26 service providers of the declarant's do-not-resuscitate status.
27 (c) Revocation of EMS-DNR order.--The declarant or the
28 declarant's surrogate may revoke the declarant's EMS-DNR status
29 at any time without regard to the declarant's physical or mental
30 condition and in any manner, including verbally or by destroying
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1 or not displaying the order, bracelet or card. Revocation of the
2 declaration shall also serve to revoke the EMS-DNR order, though
3 emergency medical service providers shall not be subject to
4 civil or criminal liability or administrative sanction for
5 failure to verify the declaration prior to complying with the
6 EMS-DNR order.
7 (d) Effect of EMS-DNR order, bracelet or card.--Emergency
8 medical service providers are hereby authorized to and shall
9 comply, subject to subsection (e), with an approved Department
10 of Health-issued EMS-DNR order if made aware of such by
11 examining an EMS-DNR bracelet, card or the order itself. Such
12 providers shall have no duty to examine the underlying
13 declaration. "Compliance" for purposes of this subsection shall
14 mean the withholding of cardiopulmonary resuscitation (cardiac
15 compression, invasive airway techniques, artificial ventilation,
16 defibrillation and other related procedures) from the declarant
17 in the event of respiratory or cardiac arrest. "Compliance"
18 shall also mean the discontinuance and cessation of such
19 resuscitative measures in the event the emergency medical
20 service provider is presented with an EMS-DNR order, card and/or
21 bracelet after initiating such resuscitative measures. Emergency
22 medical service providers shall provide other medical
23 interventions necessary and appropriate to provide comfort and
24 alleviate pain, including intravenous fluids, medications,
25 oxygen and any other intervention appropriate to the level of
26 the certification of the provider, unless otherwise directed by
27 the declarant or the declarant's surrogate.
28 (e) Unwillingness of emergency medical service provider to
29 comply.--Emergency medical services providers who cannot in good
30 conscience comply with an EMS-DNR order shall make a good faith
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1 effort to proceed under section 5409 (relating to unwillingness
2 to comply; transfer of declarant) and, so long as such good
3 faith effort is made, shall not be subject to civil or criminal
4 liability or administrative sanction for failure to comply with
5 an EMS-DNR order. Emergency medical service providers unable to
6 comply with an EMS-DNR order under this subsection shall not be
7 subject to discipline, termination, demotion or other
8 retribution by their employer or the EMS organization with which
9 they are affiliated solely for their actions under this
10 subsection.
11 (f) Uncertainty regarding validity of order, bracelet or
12 card.--Emergency medical service providers who in good faith are
13 uncertain about the validity of an EMS-DNR order, bracelet or
14 card shall render care in accordance with their level of
15 certification. Such providers shall not be subject to civil or
16 criminal liability or administrative sanction for failure to
17 comply with an EMS-DNR order under this subsection.
18 (g) Format of EMS-DNR order.--The Department of Health
19 shall, with the advice of the Pennsylvania Emergency Health
20 Services Council and with the assistance of the regional
21 emergency medical services councils, make available within 180
22 days of the effective date of this subsection standard EMS-DNR
23 orders for issuance to declarants by attending physicians of
24 this Commonwealth. The form of the order shall contain, but not
25 be limited to, the following:
26 PENNSYLVANIA EMERGENCY MEDICAL SERVICES
27 DO-NOT-RESUSCITATE ORDER
28 Patient's full legal name:
29 I, the undersigned, state that I am the attending
30 physician of the patient named above. The above-named
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1 patient has executed an advance directive for health care
2 and I have made the determination that this patient is
3 incompetent and in a terminal condition or in a state of
4 permanent unconsciousness and that their declaration is
5 now operative.
6 I direct any and all emergency medical service
7 personnel, commencing on the effective date of this
8 order, to withhold cardiopulmonary resuscitation (cardiac
9 compression, invasive airway techniques, artificial
10 ventilation, defibrillation and other related procedures)
11 from the declarant in the event of the declarant's
12 respiratory or cardiac arrest. I further direct such
13 personnel to provide to the patient other medical
14 interventions, such as intravenous fluids, oxygen or
15 other therapies necessary to provide comfort care or to
16 alleviate pain, unless directed otherwise by the
17 declarant or the declarant's lawful surrogate.
18 Signature of attending physician:
19 Printed name of attending physician:
20 Dated:
21 Attending physician's emergency telephone number:
22 Signature of patient (if capable of making informed
23 decisions):
24 I, the undersigned, hereby direct that in the event
25 of my cardiac and/or respiratory arrest, efforts at
26 cardiopulmonary resuscitation not be initiated. I
27 understand that I may revoke these directions at any time
28 by giving verbal instructions to the emergency medical
29 service providers, by physical cancellation or
30 destruction of this form or my EMS-DNR bracelet or card,
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1 or by simply not displaying this form or the EMS-DNR
2 bracelet or card for my EMS caregivers.
3 Signature of surrogate (if patient is incapable of
4 making informed decisions):
5 I, the undersigned, hereby certify that I am
6 authorized to provide consent on the patient's behalf by
7 virtue of having been designated as the patient's
8 surrogate and/or by virtue of my relationship to the
9 patient (specify relationship: _________________). I
10 hereby direct that in the event of the patient's cardiac
11 and/or respiratory arrest, efforts at cardiopulmonary
12 resuscitation not be initiated. I understand that I may
13 revoke these directions at any time by giving verbal
14 instructions to the emergency medical service providers,
15 by physical cancellation or destruction of this form
16 and/or the patient's EMS-DNR bracelet or card, or by
17 simply not displaying this form or the EMS-DNR bracelet
18 or card for the patient's EMS caregivers.
19 (h) Format of EMS-DNR bracelet.--The Department of Health
20 shall, with the advice of the Pennsylvania Emergency Health
21 Services Council and with the assistance of the regional
22 emergency medical services councils, make available within 180
23 days of the effective date of this subsection standard EMS-DNR
24 bracelets for issuance to declarants by attending physicians.
25 The bracelets shall be uniform in design and shall at a minimum
26 on the face clearly indicate EMS-DNR and the name of the patient
27 and attending physician.
28 (i) Format of EMS-DNR card.--The Department of Health shall,
29 with the advice of the Pennsylvania Emergency Health Services
30 Council and with the assistance of the regional emergency
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1 medical services councils, make available within 180 days of the
2 effective date of this subsection standard EMS-DNR cards for
3 issuance to declarants by attending physicians. The cards shall
4 be wallet-sized and contain, but not be limited to, the
5 following:
6 PENNSYLVANIA EMERGENCY MEDICAL SERVICES
7 DO-NOT-RESUSCITATE CARD
8 Patient's full legal name:
9 Attending physician's name:
10 This patient has an operative advance directive and
11 emergency medical services do-not-resuscitate order. EMS
12 personnel are instructed not to perform cardiopulmonary
13 resuscitation (cardiac compression, endotracheal
14 intubation, artificial ventilation, defibrillation and
15 other related procedures) on this patient in the event of
16 the patient's respiratory or cardiac arrest. Do provide
17 to the patient other medical interventions, such as
18 intravenous fluids, oxygen or other therapies deemed
19 necessary to provide comfort care or to alleviate pain,
20 unless directed otherwise by the declarant or the
21 declarant's lawful surrogate.
22 § 5415. Penalties.
23 Any person who willfully conceals, cancels, defaces,
24 obliterates or damages the declaration or EMS-DNR order,
25 bracelet or card of another without the consent of the declarant
26 commits a felony of the third degree. Any person who falsifies
27 or forges the declaration or EMS-DNR order, bracelet or card of
28 another, or willfully conceals or withholds personal knowledge
29 of a revocation as provided in section 5406 (relating to
30 revocation) or 5413(c) (relating to emergency medical services),
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1 with the intent to cause a withholding or withdrawal of life-
2 sustaining treatment contrary to the wishes of the declarant
3 and, because of such an act, directly causes life-sustaining
4 treatment to be withheld or withdrawn and death to be hastened
5 shall be subject to prosecution for criminal homicide as
6 provided in 18 Pa.C.S. Ch. 25 (relating to criminal homicide).
7 Any person who willfully, by undue influence, fraud or duress,
8 causes a person to execute a declaration or EMS-DNR order
9 pursuant to this chapter commits a felony of the third degree.
10 Section 2. The Department of Health shall, with the advice
11 of the Pennsylvania Emergency Health Services Council and with
12 the assistance of the regional emergency medical services
13 councils, develop and make available to health care providers
14 recognized under the act of July 3, 1985 (P.L.164, No.45), known
15 as the Emergency Medical Services Act, within 180 days of the
16 effective date of this act educational materials relating to the
17 implementation of the provisions of this act. The department
18 shall also cause the requirements of this act to be included as
19 part of the curricula for health care providers recognized under
20 the Emergency Medical Services Act.
21 Section 3. The sum of $50,000, or as much thereof as may be
22 necessary, is hereby appropriated to the Department of Health
23 for the fiscal year July 1, 1999, to June 30, 2000, to carry out
24 the provisions of this act.
25 Section 4. This act shall take effect in 60 days.
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