DNR tattoos: DOA in Virginia?

By Brandy Burnette Balding

A “do not resuscitate” tattoo on a Florida patient’s chest was the subject of much discussion after a November 2017 case report in the New England Journal of Medicine.1 This pa- tient’s tattoo should not be viewed as an isolated peculiarity. Virginia health care providers should understand the issues implicated by such a tattoo. Does a DNR tattoo meet the legal requirements for an advance directive under Virginia law? Probably not. Should Virginia providers therefore ignore a patient’s DNR tattoo? No, not necessarily.

Reported DNR tattoos

A 70-year-old intoxicated and unconscious man was found on the street and brought to a Florida emergency department. The man had no identification, but had a potentially identifying mark: a tattoo on his chest containing the phrase, “Do not resuscitate,” followed by a signature. The patient was later diagnosed with septic shock and hypotension. To allow the providers time to evaluate what to do, they provided relatively non-invasive care to the patient. He was given antibiotics, intravenous fluids, supplemental oxygen through a breathing mask, and medication for low blood pressure. The providers wanted to avoid intubating the patient until they had further information from the patient, his family or friends, other health care providers, or an ethics consult.

The ethics consultants recommended honoring the patient’s tattoo, and a DNR order was written. The patient’s medical team later received assurances about the patient’s DNR choice when they obtained a copy of a valid DNR order from a nursing facility where the patient had recently been. The DNR order was honored, and the patient died without life-prolonging intervention.

While evaluating options, the Florida medical team learned about a California case where a patient’s DNR tattoo did not reflect the patient’s position on resuscitation. The Journal of General Internal Medicine published a case report in 2012 about a 59-year-old male who presented for below-the-knee amputation with the letters “D.N.R.” tattooed on his chest.2 Fortunately, this patient could explain the tattoo and his treatment preference. He did not think the tattoo would be taken seriously, and he wanted resuscitative measures to be taken if he was arrested. This patient did not permanently alter his body to communicate his end-of-life medical preferences. This patient indelibly stamped his skin with these three meaningful letters to make good on a bet he lost during a poker game with fellow hospital employees.

The California patient’s scenario highlights the uncertainty and confusion that may arise from DNR tattoos. The painful process of getting a DNR tattoo on one’s chest may reflect a deliberate, mindful choice. On the other hand, the tattoo may outlast the patient’s choice. Changing one’s mind about end-of-life treatment decisions is often much easier than removing a tattoo.

Validity of DNR tattoos under Virginia law

The DNR tattoos reported in Florida and California do not satisfy Virginia’s advance directive statutes. At a minimum, a written advance directive must be (1) signed by the adult patient, and (2) witnessed and signed by two individuals older than 18 years. (3) The Florida patient’s tattoo contained the patient’s signature, but not the signatures of two qualified witnesses. The California patient’s tattoo contained no signatures.

These tattoos are therefore deficient advance directives under Virginia law. Virginia providers encountering patients with these tattoos would have no legal obligation to withhold resuscitative measures.

Responding to a DNR tattoo

Even if no legal obligation is triggered by these DNR tattoos, providers should not wholly ignore the message behind such tattoos. Communicative, oriented patients should be asked whether they authorize life-prolonging procedures, including cardiopulmonary resuscitation. When patients cannot communicate or are incapable of making an informed decision about their health care treatment, DNR tattoos should serve as a springboard for further action—if time permits. Medical teams should review available medical records for copies of these documents.

They should inspect patients’ belongings for advance directive documents or durable do not resuscitate (“DDNR”) orders and jewelry. Medical teams should contact patients’ friends, family members, and other health care providers to learn about the meaning of the tattoos and the existence of advance directives, living wills, DDNR orders, and medical power of attorney documents.

Providers should query Virginia’s Advance Health Care Directive Registry. Providers should also consider consulting the ethics committee, patient care consulting committee, or legal counsel and begin identifying statutorily authorized substitute decision-makers.

Finally, medical teams should document each step taken to ascertain the patient’s choice.

When time is short, the appropriate response to a DNR tattoo is less clear. The medical professionals who have publicly commented on the Florida and California examples suggest that patients should be given basic care to buy additional time for medical teams to investigate. Alternatively, these professionals suggest medical teams follow the treatment course which is reversible.4

Conclusion

DNR tattoos, like those discussed in this article, are not likely valid in Virginia. Nevertheless, they cannot be ignored. They must trigger some action by providers. In short, providers should view DNR tattoos as a beginning point, rather than the final proclamation of patients’ decisions on life-prolonging care. Providers’ actions should reflect that patients can trust them to honor clearly communicated treatment choices.

ENDNOTES

1 Gregory E. Holt, et al., An Unconscious Patient with a DNR Tattoo, 377 New England Journal of Medicine 2192–2193 (2017).

2 Lori Cooper & Paul Aronowitz, DNR Tattoos: A Cautionary Tale, 27 Journal of General Internal Medicine 1383 (2012).

3 Virginia Code § 54.1-2982 and § 54.1-2983.

4 See Holt, supra note 1; Alexander K. Smith & Bernard Lo, The Problem with Actually Tattooing DNR across Your Chest, 27 Journal of General Internal Medicine 1238–1239 (2012); Ed Yong, What to Do When a Patient Has a ‘Do Not Resuscitate’ Tattoo, The Atlantic, 2017, https://www.theatlantic.com/health/archive/2017/12/what-to-do-when-a-patient-has-a-do-not-resusci-tate-tattoo/547286/ (last visited Jan 15, 2018); Lindsey Bever, A Man Collapsed with ‘Do Not Resuscitate’ Tattooed on His Chest; Doctors Didn’t Know What to Do, The Washington Post, December 1, 2017, https://www.washingtonpost.com/news/to-your-health/wp/2017/12/01/a-man-collapsed-with-do-not-resuscitate-tattooed-on-his-chest-doctors-didnt-know-what-to-do/?utm_term=.6039a576c1e9 (last visited Jan 15, 2018).