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Posted on June 7, 2017 at 5:00 AM
In the spring 2017 issue of the NYSBA Health Law Journal, Joe Fins and Robert Swidler make a eloquent and powerful argument for restoring medical futility as a clinical basis for a DNR order under New York law.

Notably, they are not talking about using futility as a basis alternative to consent as in Maryland and Vermont.  Instead, they talking about writing allowing a DNR order with surrogate consent when resuscitation would be futile. If it surprises you that a surrogate cannot even consent to withhold even futile CPR, then welcome to New York.

Pending NY Assembly Bill 3911 would implement this suggestion.  But the bill remains in a second committee. Other recent bills designed to implement this fix have all failed.

The definition of "futility" is that when the event of cardiac or respiratory arrest, resuscitation will "be unsuccessful in restoring cardiac and respiratory  function or that the patient will experience repeated arrest in a short time period  before death occurs."

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