Gen. 167] 167

HEALTH

EMERGENCY MEDICAL SERVICES ) LIFE-SUSTAINING

PROCEDURES ) AUTHORITY FOR EMERGENCY MEDICAL

SERVICES PALLIATIVE CARE/DO NOT RESUSCITATE

PROTOCOL 

January 30, 1995

Robert R. Bass, MD, FACEP

Maryland Institute for Emergency

 Medical Services Systems

You have requested our opinion whether the Maryland Institute

for Emergency Medical Services Systems (“MIEMSS”) has the

authority, in conjunction with the Board of Physician Quality

Assurance (“BPQA”), to issue an “Emergency Medical Services

Palliative Care/Do Not Resuscitate Protocol” for pre-hospital

providers.

For the reasons stated below, we conclude that MIEMSS and

the BPQA do have this authority under current law. 

I

Proposed MIEMSS Protocol

MIEMSS, with the BPQA’s concurrence, is planning to issue

a protocol for pre-hospital providers to describe the circumstances

under which emergency medical services (“EMS”) personnel are to

forgo efforts at cardiopulmonary resuscitation (“CPR”) that they

would ordinarily make. The new protocol will authorize the use of

pain relief and other comfort care measures, instead of CPR, if the

patient’s attending physician has issued a palliative care/”do not

resuscitate” (“DNR”) order on a form to be developed and issued by

MIEMSS. 

Under the proposed protocol, the patient’s attending physician

would issue the palliative care/DNR order only under circumstances

authorized by the Health Care Decisions Act, Title 5, Subtitle 6 of
168 [80 Op. Att’y

1

 The protocol would likewise reflect both the grants of authority

and the limitations elsewhere in the Act. See HG §§5-601(n) (limited

definition of “medically ineffective treatment”), 5-602(h) (standards for

health care agents), 5-605(c) (standards for surrogates), 5-606 (required

certifications by physicians), and 5-611 (medically ineffective lifesustaining procedures).

the Health-General (“HG”) Article, Maryland Code. Thus, for

example, the physician might enter the order pursuant to the

patient’s instruction in an advance directive after the appropriate

certification of the patient’s condition had been made. See HG §5-

606(b).1

 The new MIEMSS protocol would establish procedures to be

followed by the attending physician in completing the standard form

that MIEMSS will distribute; the criteria for EMS personnel in

determining when to initiate, withhold, or withdraw CPR; and the

types of care to be rendered in lieu of CPR. 

II

Outpatient “Do Not Resuscitate” Orders Under 

The Health Care Decisions Act

MIEMSS and the BPQA have explicit statutory authority to

adopt a protocol that will require EMS personnel to provide comfort

care, instead of CPR, to a patient with an appropriate physician’s

order. The Health Care Decisions Act includes an instruction to

EMS personnel to follow a particular DNR protocol: 

Certified emergency medical services

personnel shall be directed by protocol to

follow emergency medical services “do not

resuscitate orders” pertaining to adult patients

in the outpatient setting in accordance with

protocols established by the Maryland

Institute for Emergency Medical Services

Systems in conjunction with the State Board

of Physician Quality Assurance. Emergency

medical services “do not resuscitate orders”

may not authorize the withholding of medical
Gen. 167] 169

2

 EMS personnel who follow a DNR order issued pursuant to this

section are immune from liability as a result of their withholding or

withdrawing CPR. HG §5-609(a).

3

 EMS personnel are also to follow a DNR order issued by either

an on-line EMS medical command and control physician or a physician

physically present at the scene. HG §5-608(c)(2)(3). EMS personnel must,

in any event, provide CPR to a patient who requests it prior to cardiac or

respiratory arrest. HG §5-608(b).

4

 We are aware of nothing in the legislative history that would

(continued...)

interventions, or therapies deemed necessary

to provide comfort care or to alleviate pain.2

§5-608(a) of the Health-General (“HG”) Article, Maryland Code.3

An EMS DNR order is specifically defined in HG §5-601(h):

“Emergency medical services ‘do not

resuscitate order’” means a physician’s

written order in a form established by protocol

issued by the Maryland Institute for

Emergency Medical Services [Systems] in

conjunction with the State Board of Physician

Quality Assurance which, in the event of a

cardiac or respiratory arrest of a particular

patient, authorizes certified emergency

medical services personnel to withhold or

withdraw cardiopulmonary resuscitation

including cardiac compression, endotracheal

intubation, other advanced airway

management techniques, artificial ventilation,

defibrillation, and other related life-sustaining

procedures.

This definition limits the scope of an EMS DNR order to “the

event of a cardiac or respiratory arrest ....” This term, not itself

defined in the act, is to be given its ordinary meaning. See In re

Douglas P., 333 Md. 387, 392, 635 A.2d 427 (1994); Atkinson v.

State, 331 Md. 199, 215, 627 A.2d 1019 (1993).4 In an earlier
170 [80 Op. Att’y

4

 (...continued)

cause us to read the term “cardiac or respiratory arrest” in any

unconventional way.

5

 CPR involves procedures that are “‘highly intrusive, and some are

violent in nature. The defibrillator, for example, causes violent (and

painful) muscle contractions....’” In re Riddlemoser, 317 Md. 496, 501

n.2, 564 A.2d 812 (1989) (quoting Matter of Dinnerstein, 380 N.E.2d

134, 136 (Mass. App. 1978)).

opinion, we cited the following definitions: “‘Cardiac arrest is the

sudden unexpected cessation of heartbeat and blood pressure....

Respiratory arrest is the sudden cessation of effective breathing.’”

79 Opinions of the Attorney General 218, 221 (1994) (quoting

Office of Technology Assessment, Life-Sustaining Technologies and

the Elderly 168 (1985)). 

As a practical matter, the scope of EMS DNR orders, as thus

delimited, might not always fully carry out the wishes of a

competent patient or legally authorized decision-maker on behalf of

an incapacitated patient. Suppose, for example, that a patient in a

terminal condition had executed an advance directive flatly ruling

out the use of CPR. Such a directive presumably would reflect the

patient’s judgment that the suffering associated with even successful

CPR was not justified by a sufficient benefit under the

circumstances.5

 A physician’s order to EMS personnel to implement

that advance directive would logically rule out CPR even if the

patient were experiencing serious cardiac or respiratory distress

short of full arrest. 

The Health Care Decisions Act, however, does not address that

contingency. If MIEMSS and the BPQA have authority to issue a

protocol calling for palliative care, instead of CPR, in circumstances

other than cardiac or respiratory arrest, the source of that authority

lies elsewhere than in the Act. 

III

Authority to Issue Palliative Care Protocol

Among other responsibilities, the EMS Board at MIEMSS is

to “develop and adopt a Emergency Medical System plan to ensure

effective coordination and evaluation of emergency medical services
Gen. 167] 171

6

 EMS personnel who follow the palliative care aspects of such a

protocol would do so within the immunity granted by §§5-309, 5-309.1,

and 5-310 of the Courts and Judicial Proceedings Article, Maryland Code.

delivered in this State.” §13-1D-09(a) of the Education (“ED”)

Article, Maryland Code. The plan is to include “[c]riteria and

guidelines for the delivery of emergency medical services including

provisions to assure proper medical direction of emergency medical

services.” ED §13-1D-09(b)(1)(ii).

In accordance with this plan “and other relevant policies

adopted by the EMS Board,” the Executive Director of MIEMSS is

to “[c]oordinate a statewide system of Emergency Medical

Services,” “[c]oordinate the training of all personnel in the

Emergency Medical Services System and develop the necessary

standards for their certification,” and “[i]mplement all

programmatic, operational, and administrative components of the

Institute.” ED §13-1D-10(1), (4), and (12).

Taken as a whole, these provisions authorize the Executive

Director of MIEMSS, working within the framework of the EMS

plan, to establish protocols under which EMS personnel are to be

trained, certified, and governed in their day-to-day operations. If the

Executive Director believes that the policies underlying the Health

Care Decisions Act can best be furthered by a protocol that

addresses not only DNR orders for patients who suffer cardiac or

respiratory arrest but also DNR orders for patients who are not yet

clinically in cardiac or respiratory arrest, the Executive Director may

develop such a protocol.6

Furthermore, the Board of Physician Quality Assurance has

statutory authority to participate in the adoption of such a protocol.

Under §14-305 of the Health Occupations (“HO”) Article, Maryland

Code, an emergency medical technician-paramedic may perform

without licensure certain activities that fall within the scope of the

practice of medicine. Specifically, HO §14-305(d) provides as

follows:

Subject to the rules, regulations, and orders of the

Board, an emergency medical technician-paramedic,

while delivering emergency health care services or

undergoing training, may perform the following services

without a license: 
172 [80 Op. Att’y

(1) All phases of cardiopulmonary

resuscitation; 

(2) All phases of prehospital advanced

life support; 

(3) Administering of drugs or intravenous

solution as directed by a license physician by

radio, telemetry, or written or oral instruction;

and 

(4) Obtaining blood for laboratory

analysis.

See also HO §14-303 (b) (cardiac rescue technicians). The “rules,

regulations, and orders of the Board” may include the BPQA’s

concurrence in a palliative care protocol for certain patients

receiving the services of these pre-hospital providers. 

IV

Conclusion

In summary, it is our opinion that MIEMSS and the Board of

Physician Quality Assurance have authority to issue a protocol to

implement DNR and palliative care orders by physicians.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

Opinions & Advice