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Based on record review and interviews, the facility staff failed to obtain informed consent from the legal guardian in 1 of 2 incapacitated patients (Patient #11) out of a total of 11 patient records reviewed. This failure has resulted in the intubation of Patient #11 which was against their wishes noted in the advance directive.

Findings include:

The facility staff failed to obtain informed consent from the patient's legal guardian. (See tag A-0131)

An Immediate Jeopardy was determined on 11/25/2020 at 9:05 AM under 42 CFR 482 A-0131 regarding the facility's failure to obtain consent from the legal guardian. The Chief Nursing Officer C was notified of the Immediate Jeopardy on 11/25/2020 at 9:05 AM and the Immediate Jeopardy template was given to the facility on 11/25/2020 at 9:13 AM.

The Immediate Jeopardy was removed on 11/25/2020 at 2:00 PM after the facility presented and implemented an effective removal plan that includes placing a Do Not Resuscitate (DNR) armband on any patient in the Emergency Department who presents with a DNR designation. The Chief Nursing Officer C and Director of Nursing D were notified the Immediate Jeopardy was removed on 11/25/2020 at 2:00 PM.

Based on record review and interviews, the facility staff failed to obtain informed consent from the legal guardian in 1 of 2 incapacitated patients (Patient #11) out of a total of 11 patient records reviewed. This failure has resulted in the intubation of Patient #11 which was against their wishes noted in the advance directive.

Findings include:

The policy titled "Informed Consent - Informed Refusal" last reviewed on 5/30/2017 revealed in part "II. Policy Statement: The [facility-system] recognizes that a patient or his/her representative has the right to be fully informed regarding the patient's health status, diagnosis and prognosis, to actively participate in care planning and treatment, and to request or refuse treatment. This policy addresses the process of obtaining the patient/representative's informed consent to (or informed refusal of) a particular treatment. IV. Policy D. Role of the Qualified Practitioner(s) 2. Ensuring the disclosure of relevant treatment information. b.The practitioner must ensure that the patient/representative receives the following information in laymen's terms and in a language that the patient understands: (1) The patient's diagnosis and prognosis: (2) A description of the proposed treatment, including indications for the proposed treatment, when, where, and how the treatment will be administered, the goals of the proposed treatment and the likelihood of achieving such goals."

The policy titled "Patient Rights & Responsibilities" last reviewed/revised 12/12/2019 revealed in part "IV. Policy C. Patient and/or family involvement in decision-making-advance directives and informed consent. 1. The patient or his/her legal decision-maker and the patient representative have the right and responsibility to be involved in decision-making about the patient's care.....2. The patient/legal decision-maker has the right to accept or refuse the treatment or procedure, or to request other appropriate treatment...3. Advance directive documentation detailing directions regarding the withholding or withdrawal of resuscitation or life sustaining measures, will be used by the Medical Staff in treatment plans and orders for patient care."

Review of Patient #11's document titled "Letters of Guardianship of the Person due to incompetency" dated 2/21/2014 revealed in part "In the matter of Patient #11 [name] is appointed guardian of Patient #11. The guardian of the person has all the duties specified under state statute 54.25(1). 4. The guardian of the person is authorized to exercise the following specific powers in part or in full:....ab. Except as otherwise limited by Wisconsin Statute 54.25(2)(d)2.ab., the power to give an informed consent to the voluntary receipt by the guardian's ward of a medical examination.....and medical treatment that is in the ward's best interest. (2) Individual lacks evaluative capacity in full. Guardian of the person to exercise full power."

Review of Patient #11's document titled "Emergency Care, Do Not Resuscitate Order (DNR)" is signed by the legal guardian and attending physician dated 8/6/2014.

Review of Patient #11's document titled "Physician orders for Life-Sustaining Treatment" (POLST) revealed in part
"Treatment options: When the patient/resident is not breathing and has no pulse. Do Not Resuscitate. Medical Interventions: Limited additional interventions: May include cardiac monitor and oral/IV (intravenous) medications. Transfer to hospital if indicated, but no endotracheal intubation, advanced airway, and cardioversion/automatic defibrillation."

Review of the medical record for Patient #11 on 11/8/2020 at 2:54 PM revealed "Patient #11 arrived via ambulance from a skilled nursing facility (SNF) with chief complaint of increased falls, decreased cooperation and uncontrollable muscle movements for several days with associated fall just prior to arrival with right forearm deformity At 7:52 PM determined patient required inpatient bed, none available at this facility. 10:30 PM referrals made to area hospitals for transfer. 11/9/2020 at 1:59 AM sister hospital in Burlington accepted patient transfer however requested patient be intubated before transfer because patient is on Oxygen 15 L non-rebreather mask and oxygen levels sometimes dipping down into 88% (out of 100%). At 2:20 AM Patient #11 was intubated as a stabilizing treatment. At 2:57 AM patient departed from Emergency Department (ED) via ambulance, intubated."

Review of the medical record for Patient #11 from the receiving hospital on 11/9/2020 at 4:17 PM revealed "Took over care of patient after sign-out by Dr [name]. Long discussion held with patient's sister who is the patient's guardian. Patient was evidently intubated at [name of hospital] and patient is a 'Do Not Resuscitate'. Patient's guardian confirmed this, as well as her wishes to respect this and have patient terminally extubated. Wished to witness all of this on camera. All orders placed for comfort measures only including prn (as needed) morphine (pain medication) and lorazepam (anti-anxiety medication). Patient died on 11/9/2020 at approximately 10:47 PM."

During an interview on 11/23/2020 at 9:00 AM with complainant B stated "We had the DNR order in place to avoid having to make the decision to have the life support removed. This has been a very difficult time for our family."

During an interview on 11/23/2020 at 11:30 AM with Chief Nursing Officer C confirmed that the legal guardian for Patient #11 was not contacted prior to being intubated (placement of a breathing tube) and had a Do Not Resuscitate Order in place.

During a phone interview on 11/23/2020 at 1:00 PM with ED medical director K stated "It was clearly documented in the patient chart that he was a DNR. It was a huge mistake to intubate Patient #11."

During an interview on 11/23/2020 at 1:40 PM with ED physician L stated "I made the mistake to not check in with patient #11's guardian before intubating (inserting a breathing tube). I did not talk to Patient #11's guardian during the emergency room visit."