Welcome to Ethics Consult -- an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma from a true, but anonymized patient care case, and then we seek a legal ruling.
Last week, you voted on a DNR tattoo case. Here are the results from 1580 votes:
1. Do you comply with the DNR tattoo or not?
Yes: 43.04%
No: 56.96%
2. Would your answer change if his friend tells you it was a joke?
Yes: 20.36%
No: 79.64%
And now, Greg Dolin, MD, JD, weighs in with an ethical and legal framework to help you learn and prepare:
It is black letter law that any unconsented touch constitutes battery. That is true even when the "touch" is done for beneficial purposes.
As the Illinois Court of Appeals explained over a century ago in , 118 Ill. App. 161 (Ill. App. Ct. 1905):
"... [U]nder a free government at least, the free citizen's first and greatest right, which underlies all others -- the right to the inviolability of his person. In other words, his right to himself -- is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise and prescribe (which are at least necessary first steps in treatment and care), to violate without permission the bodily integrity of his patient by a major or capital operation, placing him under anaesthetics for that purpose, and operating on him without his consent or knowledge."
Or as the :
"Regardless of the reasonableness of the surgery or its eventual necessity, a physician may not act beyond his patient's authorization, except when a situation seriously threatens the health or life of the patient."
The patient need not deny access to his own body only by virtue of a duly executed document, but by any means that would indicate his refusal, and should a legal dispute arise, it would be the medical professional's burden to show that the procedures performed were consented to.
Thus, the key issue, in this case, is not whether the tattoo is a legal document, but whether the tattoo itself indicates lack of consent to the proposed treatment.
From one view it certainly does, because it clearly states that the patient does not wish to be resuscitated.
However, the patient is always free to change his mind and we simply do not know when the tattoo was executed. Indeed, the problem explicitly states that the patient arrives in the ER "while jet skiing on vacation," meaning that the physicians in that location are unlikely to have seen this individual previously and do not know either when the tattoo was executed and whether it reflected the patient's current views.
The problem may come out differently if this patient were brought in to a facility where the doctors knew him and had an opportunity to discuss those views and ascertain that the tattoo, though it may have been an old one, reflects the patient's present views.
In this situation, it would be quite proper to ignore the tattoo until more information could be obtained (while remembering that the information need not necessarily be a fully signed and executed living will or a healthcare proxy). Since we don't know whether the tattoo reflects the patient's present-day views, consent to treat is implied on the basis of this being an emergency situation.
This implied consent remains in force, until evidence to the contrary obtains. For this reason, the friend confirming that the tattoo was a joke does not really change the analysis.
Indeed, even if the tattoo was a joke a while ago, the patient may have grown to adopt the tattoo's message. Just like the tattoo itself tells us nothing about the patient's present-day desires, neither does a friend's testimony about the reasons for getting the tattoo tell us whether those reasons still hold today.
In short, the legally correct course of action would be to temporarily ignore the tattoo unless and until evidence that the tattoo reflects the patient's current thinking is brought forth.
is associate professor of law and co-director, Center for Medicine and Law at the University of Baltimore, where he also studies biopharmaceutical patent law. His work includes a number of scholarly articles, presentations, amicus briefs, and congressional testimony.