An 89-year-old New Jersey woman had put in place both “do not resuscitate” and “do not intubate” orders. Despite this, ED providers resuscitated and intubated her anyway.

Her daughter sued the hospital, the EP, and several nurses for disregarding the patient’s wishes. The lawsuit alleged the providers either did not know about the advance directive or ignored it.

A superior court judge ruled the defendants violated the patient’s “fundamental right to refuse unwanted medical care.”1 Timothy L. Barnes, Esq., represented the plaintiff, and says three issues led to a settlement for an undisclosed amount:

  • Providers failed to carefully review the documentation about the advance directive in the medical chart. “The ED staff, both nurses and doctors, must read the entire chart and specifically familiarize themselves with any advance directives,” says Barnes, an attorney with Morristown, NJ-based Porzio, Bromberg & Newman.

  • The nurse failed to tell the resident about the advance directive, who failed to tell the attending in the ED, who failed to tell the hospitalist on the floor after admission. “There was a total breakdown in communication,” Barnes says.

  • No provider acted on the advance directive, despite the fact it was documented in multiple places. Instead, the providers relied on a brief version of the history taken by previous providers, without taking their own history, and without reading the documents in the chart. “Everyone was at fault, so they were all named in the suit. They all contributed to the settlement,” Barnes reports.

EDs can learn a lot from this particular case about how to avoid litigation for disregarding advance directives. “We learned, through discovery, that the hospital revised many protocols as a result of the mishandling of this patient’s DNR,” Barnes says.


  1. Koerner v. Bhatt, N.J. Super. (Law Div. 2017).