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12 In 2010, the former DNR law was superseded by the Family Health Care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.