Who gets the last word on CPR?

In 2003, an upstate New York hospital, seeking policy guidance, put the question to Attorney General Eliot Spitzer. Spitzer interpreted the state law to mean that even in these cases, a doctor could not enter a DNR order over the objections of a family. A doctor's only recourse was to proceed to mediation, and then, if necessary, go to court.

"We have gone from one extreme to the other," said Dr. Kenneth Prager, chief of medical ethics at New York-Presbyterian/Columbia, "from physicians making unilateral decisions to the situation where the family and the patient have all control."

At the same time the New York statute was being enacted, stories around the country emerged of doctors going through the motions of a code for the benefit of a family. Hospital slang like "slow code," to suggest a leisurely walk to the bedside, "Hollywood code" (in deference to TV hospital programs) or "light-blue code" (an allusion to code blue, the term for a cardiac arrest resuscitation) became public.

In reaction, states passed advanced-care directive laws and hospitals drafted new ethics policies.

Certainly the goal of the legislation was to create dignity and transparency in end-of-life decisions. And in a litigation-rich era, the policies and laws were also intended to help insulate doctors from lawsuits.

Dr. Robert V. Brody, chairman of the ethics committee at San Francisco General Hospital, where the policy ultimately favors the doctor's decision, says the task of performing CPR usually falls to the younger resident staff at a hospital rather than to an attending physician. The burden is mostly felt, he said, at smaller community hospitals, who believe that they do not have the deep pockets to withstand a lawsuit. "Nurses and doctors hate it," Brody said. "It's a mess."

George Annas, a health-law expert at Boston University Law School, said that in such cases, doctors wound up doing what they considered to be forced bad practice.

"We're back to the days of light blue, slow code, Hollywood codes," Annas said.

He added that a doctor could not be successfully sued for refusing to administer CPR if the procedure would have violated good medical practice.

Sulmasy, chief ethicist at St. Vincent's Manhattan Hospital and New York Medical College, studied a half-dozen cases in which the decision makers for a dying patient refused to consent to a DNR order.

"We measured the stress of making a DNR decision for someone else and found it was like someone surviving a house fire," he said. "Before the attorney general's opinion, we could say to some families, 'This is it, your loved one is dying.' And they would say, 'All right, it's your decision. As long as it's not on me.' And they could get on with the task of mourning."

Fins thinks that the focus on DNR orders is in itself misguided.

"DNR is a game plan for the last 15 minutes of your life," he said. "By planning for those last 15 minutes, we're distorting priorities. Instead of talking about futility, we should be discussing what has utility, like pain management, comfort, closure. Recasting the discussion has led to turning irresolvable dilemmas into problems that can be addressed."