In Virginia, can a doctor issue a Do Not Resuscitate order verbally, in person or by phone?

Plain-English summary

A delegate asked whether Virginia law permitted a physician, in person or by telephone, to issue a verbal Do Not Resuscitate order. The AG broke the question into two parts.

First, Virginia law does not recognize a verbal Durable Do Not Resuscitate Order (Durable DNR). The Code defines a Durable DNR as "a written physician's order issued pursuant to § 54.1-2987.1 to withhold cardio-pulmonary resuscitation from a particular patient in the event of cardiac or respiratory arrest." Section 54.1-2987.1 sets out the procedure: a physician can issue one with the patient's consent (or the consent of an authorized decision-maker), and the regulations require a written form. There's no statutory or regulatory authority for a verbal Durable DNR.

Second, the question reached outside the Durable DNR framework. A patient might be in arrest without an existing Durable DNR. In that situation, the applicable regulation says: "[n]othing in these regulations shall prohibit qualified health care personnel from following any direct verbal order issued by a licensed physician not to resuscitate a patient in cardiac or respiratory arrest when such physician is physically present." So a physician physically present with a patient in arrest can give a verbal no-resuscitate order based on professional judgment, and qualified health care personnel can follow it.

But two conditions matter. First, the physician must be physically present, so a telephone order wouldn't qualify. Second, the patient must already be in cardiac or respiratory arrest when the verbal order is given. A verbal order issued in anticipation of an arrest, before it happens, wouldn't comply with the regulation.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does Virginia require a Durable DNR to be written?
Because the decision to withhold resuscitation in the future is consequential and reviewable. The written form, signed by the physician after explaining alternatives to the patient or decision-maker, creates a documented record of the patient's choice. Verbal orders given in real time during an arrest are a different situation, where the urgency overrides documentation concerns.

Can a family member tell paramedics to not resuscitate?
That's outside the scope of this opinion. The AG addressed only physician orders. Family members or surrogate decision-makers have their own authority under other statutes for non-emergency decisions, but emergency responders generally follow the standard of care unless they have a valid Durable DNR or related document.

What about a Physician Orders for Scope of Treatment (POST) form?
The opinion didn't address other forms or end-of-life documents. It dealt only with the Durable DNR Order created under § 54.1-2987.1.

Could a physician issue a verbal order before the patient codes?
No. The regulation requires the patient to be "in cardiac or respiratory arrest" when the verbal order is given. A pre-arrest verbal order doesn't fit the regulatory carve-out.

Does this mean a remote physician can never give end-of-life instructions?
Not exactly. A remote physician can still issue a Durable DNR Order under § 54.1-2987.1, which is a written order. The remote physician just can't replace the written Durable DNR process with a verbal telephone order during an arrest. The physical-presence requirement is specific to verbal orders given in the absence of a Durable DNR.

Background and statutory framework

Virginia law defines a Durable DNR Order as "a written physician's order issued pursuant to § 54.1-2987.1 to withhold cardio-pulmonary resuscitation from a particular patient in the event of cardiac or respiratory arrest." Section 54.1-2987.1 requires the physician to have a bona fide physician-patient relationship and to obtain the patient's consent (or the consent of an authorized decision-maker if the patient is a minor or incapable of making an informed decision).

The implementing regulations, the Regulations Governing Durable Do Not Resuscitate Orders, require the physician to explain the available alternatives before issuing the order and to complete the Durable DNR Order form. A Durable DNR Order must be in writing.

For situations where no Durable DNR is in place, the applicable regulation permits qualified health care personnel to follow a direct verbal order from a licensed physician not to resuscitate when the physician is physically present and the patient is in cardiac or respiratory arrest.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 54.1-2987.1 (Durable Do Not Resuscitate Orders)
• Regulations Governing Durable Do Not Resuscitate Orders (referenced in the opinion without section numbers)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-071_Dance.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

June 21, 2013

The Honorable Rosalyn R. Dance
Member, House of Delegates
Post Office Box 2584
Petersburg, Virginia 23804

Dear Delegate Dance:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You ask a number of questions regarding the application of § 54.1-2987.1 (Durable Do Not Resuscitate Orders) and regulatory interpretations of that statute. Specifically, you ask if Virginia law permits a physician, in person or by telephone, to issue a verbal Do Not Resuscitate Order.

Response
It is my opinion that Virginia law does not create a verbal Durable Do Not Resuscitate Order. It is further my opinion that a physician, physically present with a patient in cardiac or respiratory arrest and for whom a Durable Do Not Resuscitate Order has not been issued, has the authority to issue any orders he deems in his professional judgment to be appropriate under the circumstances.

Applicable Law and Discussion

The Code of Virginia defines a Durable Do Not Resuscitate Order ("Durable DNR Order") as "a written physician's order issued pursuant to § 54.1-2987.1 to withhold cardio-pulmonary resuscitation from a particular patient in the event of cardiac or respiratory arrest." Pursuant to § 54.1-2987.1,

A Durable Do Not Resuscitate Order may be issued by a physician for his patient with whom he has a bona fide physician/patient relationship ... only with the consent of the patient or, if the patient is a minor or incapable of making an informed decision ... upon the request of and with the consent of the person authorized to consent on the patient's behalf.

The Code of Virginia does not create nor authorize a verbal Durable DNR Order.

The Regulations Governing Durable Do Not Resuscitate Orders require that prior to issuing a Durable DNR Order, the physician shall explain to the patient or the person authorized to give consent on behalf of the patient, the alternatives available for response in the event of cardiac or respiratory arrest and if the option of a Durable DNR is agreed upon, the physician shall complete the Durable DNR Order form. A Durable DNR Order must be in writing.

Your question is not limited to written Durable DNR Orders, but includes whether there can be a verbal order not to resuscitate a patient. This is a situation not encompassed by § 54.1-2987.1. If there is no written Durable DNR Order in place, this section is not applicable. The applicable regulation for this question provides, in relevant part, that "[n]othing in these regulations shall prohibit qualified health care personnel from following any direct verbal order issued by a licensed physician not to resuscitate a patient in cardiac or respiratory arrest when such physician is physically present." This regulation confirms a physician's ability to give a verbal order not to resuscitate when the patient is in arrest and the physician is in attendance when there is no Durable DNR Order. Additionally, in response to another question in your letter, it is clear that a verbal order by telephone would not suffice, because the physician must be "physically present." Moreover, a verbal order when the physician is present but before the patient goes into arrest would not comply with the terms of the regulation, which require the patient to be "in cardiac or respiratory arrest" when the verbal order is made.

Conclusion
Accordingly, it is my opinion that Virginia law does not create a verbal Durable Do Not Resuscitate Order. It is further my opinion that a physician, physically present with a patient in cardiac or respiratory arrest and for whom a Durable Do Not Resuscitate Order has not been issued, has the authority to issue any orders he deems in his professional judgment to be appropriate under the circumstances.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General