Bill Text: NY S05834 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to restoring medical futility as a basis for DNR.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-05-15 - REFERRED TO HEALTH [S05834 Detail]

Download: New_York-2019-S05834-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          5834

                               2019-2020 Regular Sessions

                    IN SENATE

                                      May 15, 2019
                                       ___________

        Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
          printed to be committed 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:

     1    Section 1. Legislative findings. Under New York's former do not resus-
     2  citate (hereinafter "DNR") law, article 29-B of the public health law, a
     3  surrogate could consent to a DNR order if the patient  met  any  one  of
     4  four  clinical  criteria,  one  of which was a finding by two physicians
     5  that resuscitation was "medically futile," which  was  defined  to  mean
     6  that  resuscitation  "will  be  unsuccessful  in  restoring  cardiac and
     7  respiratory function or that the patient will experience repeated arrest
     8  in a short time period before death occurs." The  former  DNR  law  also
     9  allowed  a  DNR  order  to  be  entered for a patient who did not have a
    10  surrogate on that basis. That law applied  to  all  patients,  including
    11  developmentally disabled patients.
    12    In  2010,  the former DNR law was superseded by the Family Health Care
    13  Decisions Act (hereinafter "FHCDA") which established standards for  the
    14  withdrawal  or  withholding  of  a broad range of life-sustaining treat-
    15  ments. Accordingly, the FHCDA  did  not  have  a  standard  specifically
    16  relating to medically futile resuscitation. Similarly, Surrogate's Court
    17  Procedure  Act  (hereinafter  "SPCA")  §1750-b  does not have a standard
    18  specifically relating to medically  futile  resuscitation  for  develop-
    19  mentally disabled patients.
    20    The  legislature  finds that the broader FHCDA and SPCA §1750-b stand-
    21  ards are difficult to apply to situations in which  resuscitation  would
    22  be  medically  futile.  Accordingly,  this  bill restores the former DNR

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03447-01-9

        S. 5834                             2

     1  law's medical futility standard as an alternative basis  for  writing  a
     2  DNR order under the FHCDA and under SCPA §1750-b.
     3    §  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
     4  section 2994-d of the public health law, as amended by  chapter  430  of
     5  the  laws  of 2017, are amended and a new subparagraph (iii) is added to
     6  read as follows:
     7    (i) Treatment would be an extraordinary burden to the patient  and  an
     8  attending physician or attending nurse practitioner determines, with the
     9  independent  concurrence  of  another  physician  or nurse practitioner,
    10  that, to a reasonable degree of medical certainty  and  in  accord  with
    11  accepted  medical  standards,  (A)  the patient has an illness or injury
    12  which can be expected to cause death within six months, whether  or  not
    13  treatment  is  provided;  or (B) the patient is permanently unconscious;
    14  [or]
    15    (ii) The provision of treatment would involve such pain, suffering  or
    16  other  burden  that  it  would reasonably be deemed inhumane or extraor-
    17  dinarily burdensome under the circumstances and the patient has an irre-
    18  versible or incurable condition, as determined by an attending physician
    19  or attending nurse practitioner  with  the  independent  concurrence  of
    20  another  physician  or  nurse  practitioner  to  a  reasonable degree of
    21  medical certainty and in accord with accepted medical standards[.]; or
    22    (iii) With respect to a decision to enter an order not to resuscitate,
    23  an attending physician determines, with the independent concurrence of a
    24  second physician, to a reasonable degree of medical certainty,  that  in
    25  the  event  of  a  cardiac or respiratory arrest, resuscitation would be
    26  unsuccessful in restoring cardiac and respiratory function or  that  the
    27  patient  will  experience  repeated arrest in a short time period before
    28  death occurs.
    29    § 3. Paragraph (b) of subdivision 5 of section 2994-g  of  the  public
    30  health law, as amended by chapter 430 of the laws of 2017, is amended to
    31  read as follows:
    32    (b)  If  the attending physician or attending nurse practitioner, with
    33  independent concurrence of a  second  physician  or  nurse  practitioner
    34  designated by the hospital, determines to a reasonable degree of medical
    35  certainty that:
    36    (i)  (A) life-sustaining treatment offers the patient no medical bene-
    37  fit because the patient will die imminently, even if  the  treatment  is
    38  provided; and
    39    [(ii)]  (B)  the  provision of life-sustaining treatment would violate
    40  accepted medical standards, then such  treatment  may  be  withdrawn  or
    41  withheld  from  an  adult  patient who has been determined to lack deci-
    42  sion-making capacity pursuant to  section  twenty-nine  hundred  ninety-
    43  four-c  of  this  article,  without  judicial approval. This [paragraph]
    44  subparagraph shall not apply to any  treatment  necessary  to  alleviate
    45  pain or discomfort; or
    46    (ii) in the event of cardiac or respiratory arrest, resuscitation will
    47  be  unsuccessful  in  restoring cardiac and respiratory function or that
    48  the patient will experience repeated  arrest  in  a  short  time  period
    49  before death occurs, then an order not to resuscitate may be entered for
    50  an adult patient who has been determined to lack decision-making capaci-
    51  ty  pursuant  to section twenty-nine hundred ninety-four-c of this arti-
    52  cle, without judicial approval.
    53    § 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  4  of
    54  section  1750-b  of  the  surrogate's court procedure act, as amended by
    55  chapter 198 of the laws of 2016, are amended to read as follows:

        S. 5834                             3

     1    (i) the person who is intellectually disabled has a medical  condition
     2  as follows:
     3    A.  a  terminal  condition[, as defined in subdivision twenty-three of
     4  section twenty-nine hundred sixty-one of the public health law]    which
     5  shall  mean  an  illness  or injury from which there is no recovery, and
     6  which can reasonably be expected to cause death within one year; or
     7    B. permanent unconsciousness; or
     8    C. a medical condition other than such person's intellectual disabili-
     9  ty which requires life-sustaining treatment, is irreversible  and  which
    10  will continue indefinitely; [and] or
    11    D.  in  the  case  of a decision to enter an order not to resuscitate,
    12  that in the event of cardiac or respiratory  arrest  such  resuscitation
    13  would  be  unsuccessful in restoring cardiac and respiratory function or
    14  that the patient will experience repeated arrest in a short time  period
    15  before death occurs; and
    16    (ii)  except in the case of a decision to enter an order not to resus-
    17  citate based on clause D of subparagraph  (i)  of  this  paragraph,  the
    18  life-sustaining  treatment  would impose an extraordinary burden on such
    19  person, in light of:
    20    A. such person's medical condition, other than such person's intellec-
    21  tual disability; and
    22    B. the expected outcome of  the  life-sustaining  treatment,  notwith-
    23  standing such person's intellectual disability; and
    24    §  5.  This  act shall take effect on the ninetieth day after it shall
    25  have become a law.
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