END-OF-LIFE CARE: THE NEW YORK MEDICAL ORDERS FOR LIFE SUSTAINING TREATMENT (“MOLST”)
 

By: Jillian L. Romaniello, Esq.

Background

As the national conversation on health care becomes increasingly focused on end-of-life care and, more specifically, the quality of such care, states have become progressively interested in providing patients with a clear and efficient manner in which to direct their end-of-life care choices. On June 1, 2010, the New York State Department of Health updated its existing Medical Orders for Life Sustaining Treatment form, the MOLST form,1 to make it more user friendly and to align it with provisions of the Family Health Care Decisions Act (“FHCDA”)2. A MOLST form is generally for patients who have serious health conditions and have a life expectance of less than one year, want to state their wishes regarding life-sustaining treatment or patients who reside in long-term care facilities. The MOLST form is printed on bright “pulsar” pink heavy stock paper3 and is a medical order signed by a New York State (or a border state) physician.  
 
MOLST v. Health Care Proxy v. Living Will

A Living Will and a Health Care Proxy are advance directives. Advance Directives are filled out by an individual over the age of 18, while that person has decision making capacity. These forms are only used once a person has lost his or her mental capacity. These forms contain general instructions and cannot be used by EMS providers in an emergency situation.
 
MOLST is not intended to replace a Living Will or Health Care Proxy. The medical orders in the MOLST form apply immediately and are not conditioned on a physician determination of the patient’s mental capacity. Additionally, the MOLST form may be used with minor patients. There are special instructions for completing the MOLST form with minor patients.4 There are numerous instructions for the completion of this form for adults which take into account the existence of other advance directives, FHCDA surrogates and the patient’s mental capacity.
 
What does MOLST include?
 
The MOLST form includes patients’ goals and preferences regarding the following areas: (i) Resuscitation instructions when the patient has no pulse and/or is not breathing; (ii) Instructions for intubation and mechanical ventilation when the patient has a pulse and the patient is breathing; (iii) Treatment guidelines; (iv) Future hospitalization and transfer; (v) Artificially administered fluids and nutrition; (vi) Antibiotics; and (vii) Other instructions about treatments not listed.
 
The MOLST form must be completed based upon the patient’s current medical condition, values, wishes, and the informed consent by the patient or his/her health care decision-maker. At a minimum the physician must discuss with the patient and/or the patient’s health care decision-maker the patient’s diagnosis, prognosis, goals for care and treatment preferences. The conversation should be documented in the medical record. The physician must sign the MOLST form after completion.  
 
Patients do not have to make all the decisions at once. The patient may elect to only fill out page one of the MOLST form (CPR/DNR) and make the remaining decisions at a later time. The physician should cross out any sections the patient has not decided upon and write “Decision Deferred.” If the patient reaches a decision at a later time, a new MOLST form must be completed.
 
Voluntary but Binding

It is voluntary for a patient to fill out a MOLST form. Additionally, a patient or the health care decision-maker may modify or void a MOLST form at any time. Any modifications must be made on a new MOLST form and the old MOLST form must be voided. A request to modify the form may be oral or in writing. In order to void a MOLST form, the physician or patient should draw a line through the document and write “VOID” in large letters on both pages. The physician or the patient should then sign and date the line and check the box “FORM VOIDED, new form completed” or “FORM VOIDED, no new form” as appropriate.
 
All healthcare practitioners must follow the orders on the MOLST form unless a physician has examined the patient, reviews the orders and updates the orders. Non-hospital DNR orders, including those on a MOLST form, must be reviewed by a physician at least every 90 days. All MOLST orders must be reviewed when the patient transitions between healthcare settings, when there is a major change in health status and when the patient or health care decision-maker changes his or her mind about treatment.
 
Liability

No person will be subject to criminal or civil liability, or be deemed to have engaged in unprofessional conduct for any action taken to carry out the terms on the MOLST form that was performed in good faith.
 
EMS personnel, home care services agency personnel, hospice personnel, or hospital emergency service personnel provided with a non-hospital MOLST form must comply with the orders unless, (i) the personnel believe in good faith that the consent to the MOLST form has been revoked or the order has been canceled, or (ii) the family members or others on the scene (excluding these personnel) object to the orders and physicial confrontation appears likely. Hospital emergency services physicians may direct that the MOLST form be disregarded if other significant and exceptional medical circumstances warrant disregarding the order.7 No person will be liable for disregarding the orders on a MOLST form in these circumstances.8 
 
Conclusion

It is anticipated that there will be a standardized, federal form equivalent to MOLST enacted that will take the place of all such state forms. Until such time as there is a national, standardized form, it is important to review forms not only from your state of practice but from neighboring states as well as states from which you may see patients. For example, in New York, the MOLST is the only form authorized under state law for documentation of non-hospital DNR and DNI orders. More information about end-of-life care programs similar to MOLST in other states can be found on the website maintained by the National POLST Paradigm; www.polst.org.
 
 


1The MOLST Form may be found at: http://www.health.ny.gov/forms/doh-5003.pdf 
2The New York State Department of Health is currently making a push to use the eMOLST application, which is an electronic version of the form, and develop a New York State MOLST Registry.
3MOLST forms on white paper, photocopies, faxes or electronic representations of the original signed MOLST form are legal and valid.  
4The special instructions for completion the MOLST form for minor patients may be found at: http://www.health.ny.gov/professionals/patients/patient_rights/molst/docs/checklist_minor.pdf 
5The various instructions for completion of the MOLST form for adults may be found at:  http://www.health.ny.gov/professionals/patients/patient_rights/molst/ 
6New York Public Health Law § 2994-gg.
7New York Public Health Law § 2994-ee.
8New York Public Health Law § 2994-gg.
 
 

Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals,www.DrLaw.com, is solely devoted to the representation of physicians and other health care professionals. The authors of this article may be contacted at 1‐800‐445‐0954 or via email at JRomaniello@DrLaw.com