A 49-year-old man was alive because emergency physicians had saved his life once before. Now, three years later, another emergency physician saved his life again. But instead of a thank you, this physician and the hospital that saved his life are now facing a lawsuit seeking nearly $10 million.
It all began with nine words reportedly spoken by another physician: “That damn ER doctor should have never intubated you.”
Sometimes when you save a life, there are consequences. Just three years earlier, this same patient had survived a cardiac arrest. His resuscitation required CPR, endotracheal intubation, and aggressive emergency treatment. Although he survived, the experience left lasting consequences. He suffered broken ribs from chest compressions and significant post-intubation anxiety. His recovery was incomplete, leaving him moderately debilitated but living at home.
At some point following that experience, he completed a valid do-not-resuscitate (DNR) order with his primary care physician. Then, one night the patient became infected and everything changed. He became septic and developed severe respiratory distress. When the paramedics arrived and evaluated him, his respiratory rate was approximately 4 breaths per minute, and his pulse was weak. But he was not in cardiac arrest. He was transported to the local emergency department, where an emergency physician immediately recognized that without airway intervention, the patient would likely die. The physician was made aware of the DNR order. With the patient not being in cardiac arrest and unable to communicate, he did the next best thing, which was to speak with the patient’s legally appointed health care decision maker. The physician expressed that the patient was critically ill and a decision needed to be made quickly to save his life or let him die. They collectively, and with what we believe would be shared decision-making, decided to intervene and save his life.
Real physician voices, twice a week
Free, and one click to unsubscribe.
The reasoning the appointed decision maker utilized was straightforward: His son had been intubated before, survived, and could potentially survive again. The emergency physician then intubated the patient, and the patient survived and came off the ventilator in two days and with no new deficits.
From an emergency medicine perspective, the physician had recognized an immediately life-threatening condition, considered the existing DNR order, and sought contemporaneous authorization from the legally designated surrogate. So now, why would a lawsuit develop? Nine words that ignited a lawsuit. During the hospitalization, a palliative care physician (PC physician) evaluated the patient. The patient has said that he really never wanted to be intubated again. The PC physician, rather than first exploring the circumstances surrounding the emergency intervention, reportedly said, “That damn ER doctor should have never intubated you.” The PC physician then indicated that a POLST (Physician Orders for Life-Sustaining Treatment) would be completed to prevent a similar intervention in the future.
Words are impactful, especially when the words come from a physician. This patient, already traumatized by a previous resuscitation, was now being told by another physician that the treatment responsible for his survival should never have occurred. This now caused the patient to become angry. And what do patients do when they get angry? They call attorneys.
The emergency physician, who was simply just providing good care and even took the extra step to facilitate a conversation prior to intervening, is now facing a lawsuit seeking nearly $10 million for pain, suffering, and wrongful prolongation of life.
What does DNR actually mean?
This case exposes a dangerous misunderstanding that continues to threaten patient safety. A DNR order does not automatically mean do not intubate. A conventional DNR order directs clinicians to withhold specified resuscitative measures when cardiac or respiratory arrest occurs, according to the applicable order and jurisdiction. In some jurisdictions, it applies to just chest compressions, and in others, it applies to both compressions and intubation. The DNR order does not prohibit intubation for potentially reversible respiratory failure before cardiac or respiratory arrest. Nor does it automatically mean comfort measures only, no ICU admission, or no treatment of critical illness. Those are all separate decisions requiring clarification of the patient’s wishes for care. This distinction matters enormously.
A patient may reasonably refuse CPR after cardiac arrest while accepting a temporary trial of mechanical ventilation for respiratory failure. Likewise, the existence of a health care agent does not eliminate the importance of the patient’s own previously expressed treatment preferences. Surrogate decisions must be evaluated against those wishes and applicable law.
The critical questions are whether intubation was specifically prohibited, whether the patient had decision-making capacity, and whether the surrogate’s authorization was consistent with the patient’s known preferences. A DNR label alone cannot answer those questions.
Can physician communication become a patient safety risk?
Perhaps the most troubling aspect of this case is not the intubation. It is what occurred after.
The PC physician’s statement may have transformed a complex clinical and ethical decision into an accusation of wrongdoing before the facts were fully reconciled. Patients deserve honest explanations when care may have contradicted their wishes or occurred in error. Potential errors should never be concealed and should be handled in a professional manner.
But what is important here is that physicians have a responsibility to distinguish disagreement from negligence and to investigate before assigning blame. Words carry extraordinary influence when spoken by someone wearing a white coat and wearing the title of physician. In this case, one physician’s characterization appears to have helped transform an approved lifesaving emergency intervention into allegations of wrongful prolongation of life.
Every physician should learn a lesson
Advance care planning (ACP) is very much needed and is not simply about completing documents. ACP is about ensuring that treatment preferences are clear, clinically applicable, accessible, and correctly interpreted when seconds matter. DNR orders, living wills, and POLST forms are not interchangeable and at times not clinically interpretable. Each document or medical order serves a different purpose, and each can create patient safety risks when misunderstood.
The emergency physician’s actions deserve evaluation based on the patient’s actual instructions, the clinical circumstances, surrogate authority, and applicable law. Not a retrospective emotional judgment. And perhaps the most important lesson is this:
Before telling a patient that another physician should have allowed them to die, make absolutely certain you understand what the patient actually wanted. Because sometimes the greatest harm is not caused by the physician who saves a life. It is caused by the words spoken afterward.
Ferdinando Mirarchi is the chief executive officer and chief medical officer of MIDEO Health Technologies, LLC. He is the principal investigator of the TRIAD (The Realistic Interpretation of Advance Directives) Research Series, which identified a significant patient safety risk involving the misinterpretation of living wills, DNR orders, and Physician Orders for Life-Sustaining Treatment (POLST).
His research has been featured by The New York Times, The Washington Post, and other national media outlets, and it led to the development of MIDEO (My Informed Decision on VidEO), an evidence-based video advance directive and portable physician medical order designed to clarify patient wishes and improve emergency decision-making.
He is a reviewer for leading peer-reviewed journals, including CHEST, JAMA, and JAGS, serves on the editorial board of Patient Safety magazine, and authored Understanding Your Living Will. A fellow of both the American College of Emergency Physicians and the American Academy of Emergency Medicine, he previously held multiple leadership positions at UPMC Hamot and chaired the national palliative care committee at US Acute Care Solutions.
