Patients suffering from serious illness often cannot participate in their own healthcare decisions. From the physician's point of view, the incapacitated patient presents not only medical conditions in need of treatment, but also legal issues to be addressed. Physicians must turn to the patient's guardian, power of attorney, or surrogate for assistance in determining the preferred course of treatment. This article explores the legal issues related to the relationship between the physician, the incapacitated patient, and surrogate.

Incapacitation of acute medical in-patients is prevalent. Some studies place the percentage of incapacity amongst acute medical in-patients at forty percent (40%). These incapacitated patients and their physicians must rely upon surrogates to select and consent to a course of medical treatment. Unfortunately, studies show that many patients and physicians are ill-prepared to handle this situation.

The New York Times recently reported that many physicians indicate that they postpone conversations with terminally ill end-of-life patients. This was particularly the case with older physicians, and specialists, who ordinarily see patients for a brief episode of care. These discussions frequently took place once reasonable treatment options were exhausted and the patient's condition had irreversibly deteriorated. The natural conclusion is physicians are sub-optimally informed of their incapacitated patient's wishes when they speak with that patient's surrogate.

Current studies reveal that patients are woefully unprepared should they need a surrogate to assist in their care. One study found physicians did not know whether their patient even had a Living Will approximately thirty-five percent (35%) of the time. In twenty-four percent (24%) of cases, a physician did not personally speak with the patient's surrogate. In a full ten percent (10%) of cases, the physician could not identify a patient surrogate. Finally, when questioned, physicians reported in sixty-nine percent (69%) of cases, their incapacitated patient either did not have a Durable Power of Attorney for Healthcare or, if such a document existed, the physician was unaware of it.

With these facts as a backdrop, it is no surprise that physicians and patient surrogates experience some level of difficulty in communication. Physicians report that disagreements between themselves and surrogates are common. However, it should be noted that "overt conflict" is rare, occurring only five percent (5%) of the time. Agreement on medical treatment between physician and surrogate is less likely when physicians experience trouble contacting the surrogate.

Even when communication goes smoothly between the physician and surrogate, many difficult decisions are made without any prior discussions with the patient regarding healthcare preference. Over fifty percent (50%) of the time, physicians and surrogates do not discuss healthcare preferences and end-of-life issues with the patient or they are unaware of the patient's desires. Physicians are often placed in a position of taking care of an acutely ill patient without the benefit of any pre-existing relationship. This situation places the physician several steps removed from knowledge of the patient's preferences. Obviously, this presents a challenge for both physician and surrogate. In fact, nearly one-quarter (1/4) of physicians report that decision making in this circumstance causes them a great deal of stress.

While patient preferences and surrogate identities may be difficult to determine, most states have passed statutes which provide some clarity and protection for physicians. For example, in Arizona, when patients are unable to communicate their healthcare preferences, their physician must make reasonable efforts to locate and follow that patient's healthcare directive. Should the patient have a designated surrogate, the physician must then make reasonable efforts to consult with that surrogate. A surrogate under these statues is either a designated healthcare power of attorney or a Court appointed guardian for the expressed purposes of making healthcare decisions. Arizona's statues further addresses what to do if there is no known healthcare power of attorney or a Court appointed healthcare representative/guardian. Here, Arizona statute sets forth the order of priority for determining the patient's surrogate. That priority is: 1) spouse if not legally separated; 2) adult child or a majority of adult children; 3) parent; 4) if the patient is unmarried, that patient's domestic partner; 5) brother or sister of patient; and 6) a "close friend", one who has exhibited special care and concern for patient, who is familiar with the patient's views and desires and is willing and able to become involved in the patient's healthcare and who will act in the patient's best interests."

In most states, physicians must comply with the wishes of their patients' healthcare surrogates. However, physicians acting in good faith typically enjoy statutory immunity for interacting with the patient's surrogate. For example, in Georgia, a physicians are immune from legal action so long as they act in good faith with the patient's surrogate. Healthcare providers in Indiana are not liable for acts in good faith and reliance on the direction of a healthcare surrogate, provided these directions do not contradict the terms of a power of attorney. Arizona law also immunizes physicians when they rely in good faith on an apparent genuine healthcare directive or a decision from a patient's surrogate.

Disagreements between physician and patient surrogates can, at times, be irresolvable. Frequently, these disagreements relate to end-of-life care for the incapacitated patient. Typically, physicians are not forced to carry out treatment instructions from surrogates which the physician believes are immoral or constitute inappropriate medical care. For example, in California, a healthcare provider may decline to comply with a surrogate's for reasons of conscience, medically ineffective healthcare, or healthcare contrary to generally accepted standards. Further, healthcare providers will not be held liable if, acting in good faith, they decline to comply with a surrogate who lacks legal authority. Other states take a slightly more restricted view of healthcare provider's refusal to comply with a surrogate's directions. In Florida, a provider can refuse to comply with a surrogate's directions only if the patient is not in an emergency state and the patient or surrogate has received written information from the healthcare provider regarding the morals and beliefs of that provider or facility.

Even though a healthcare provider may have legal justification and immunity for ignoring a surrogate's directive in certain situations, the provider may still have further obligations. In Indiana, if a physician refuses to comply with a surrogate's request, that doctor must notify the surrogate of the refusal and promptly take all steps necessary to transfer the patient to another provider designated by the surrogate. Indiana's position is not unique. In Georgia, a physician who chooses to ignore a surrogate's decision must notify the surrogate promptly. Then, the surrogate is responsible for arranging the patient's transfer to another healthcare provider. Most states follow similar procedures when a physician refuses to comply with a surrogate's request. However, states vary as to whether the notice to the surrogate must be in writing. Further, states vary as to whether the physician or surrogate is responsible for transferring the patient to another provider after the refusal to comply has been communicated.

Sometimes, no reasonable alternative healthcare provider can assume responsibility for the patient in a timely fashion. This exact situation triggered litigation for a Rhode Island family and hospital. Glen Gray brought an action authorizing him to direct the removal of feeding tubes and further life support administered to his wife, Marcia Gray. Marcia Gray was a hospitalized at the Rhode Island Medical Center, General Hospital following a major cerebral hemorrhage. A frontal craniotomy was performed revealing severe right cerebral hemisphere brain damage. She never regained consciousness after surgery. Feeding tubes and an endotracheal tube were inserted. She was diagnosed as being in a "persistent vegetative state." She remained in this state from January 1986 until May 20, 1987 when Ms. Gray's family requested her attending physician stop feeding her and that she be permitted to die. The hospital denied the family's request. The hospital's denial was based upon its belief that stopping nutrition and hydration was tantamount to euthanasia and such action was inconsistent with the physician's role as a safekeeper of the patient's well being. Further, the hospital expressed fear of civil and/or criminal responsibility for ending Gray's life. The Rhode Island Court ultimately determined that Gray's family had the legal right to terminate her nutrition and hydration. The Court went on to state "accordingly, if Marcia Gray cannot be promptly transferred to a healthcare facility that will respect her wishes, the Rhode Island Medical Center must accede to her request." While there are only a few cases reported that involve a healthcare provider's inability to transfer a patient, common law stresses a healthcare provider must comply with a surrogate's request or directive if there is no other reasonable alternative for providing the patient's care.

In some states, the healthcare provider can legally challenge a surrogate and petition for the surrogate's removal. A provider in New York may, pursuant to New York Public Health Laws, commence a proceeding challenging the validity of a surrogate if that surrogate is not available, unwilling to cooperate, incompetent, or is acting in bad faith. In Arizona, a healthcare provider (directly involved in a patient's care) is considered an interested party and may file a verified petition to determine the validity or effects of a healthcare directive or the decision of a surrogate. However, some state statutes are less clear regarding whether a physician has standing to challenge a surrogate's status. In Ohio, the statute sets forth individuals who may bring an action to invalidate a healthcare power of attorney or named patient surrogate. However, physicians are not specifically included in the list of parties empowered to initiate such action. Healthcare providers wishing to challenge a surrogate's validity should carefully review their state's statutes to determine whether they have standing to bring a legal action.

A recent opinion from Connecticut demonstrates how a physician can be civilly liable when caring for an incapacitated patient. Elizabeth Valentin's father was admitted to St. Francis Hospital in May of 2002. While hospitalized, he suffered several severe cardiac dysfunction resulting in brain damage. Mr. Valentin was placed on life support. After ten days, the decision was made to terminate life support and he died sometime thereafter. St. Francis Hospital was not aware of the daughter's existence. Accordingly, she was not consulted about the decision to terminate her father's life support. In fact, Ms. Valentin did not learn of her father's death until three days after he died. Ms. Valentin filed suit against St. Francis Hospital alleging negligent infliction of emotional distress based on the hospital's failure to contact her or allow her to participate in the decision terminating her father's life support. The hospital moved to dismiss her action. The Connecticut court found "...the hospital's duty to the Plaintiff should be construed as a duty to make reasonable efforts to inform the known and available next of kin so that he or she could participate in the decision, based on what the decedent would have wanted, prior to the removal of life support." Id at pg. 10
Although the Connecticut case involved only one daughter, an identical situation could involve a patient with several children. Based on the above case, it is reasonable to conclude a healthcare provider has some duty, at least in one state, to "inform the known and available next of kin" of an incapacitated patient's situation. Said differently, it may not be sufficient to consult with one or even two family members. More contacts might be required. The decedent in the Connecticut case failed to name a healthcare power of attorney while he still had capacity. Arguably, communication with a designated healthcare power of attorney would sidestep the need to consult with all of the incapacitated patient's next of kin. In Connecticut, the law advises a provider contact all next of kin if a healthcare power of attorney has not been previously designated by an incapacitated patient.

Conclusion

Given the high prevalence of acutely-ill hospitalized patients that are incapacitated, healthcare providers should have procedures for dealing with patient surrogates. The authors recommend that providers discuss with patients their desires in end-of-life scenarios. Further, providers should request copies of their patient's Living Wills and Durable Healthcare Power of Attorney. These documents, along with any documented discussions with the patient about end-of-life, can significantly reduce uncertainty when dealing with loss of capacity. Healthcare providers should also communicate any moral positions which may impact their willingness to carry out a patient/surrogate's preferences for treatment. Studies indicate that an early free flow of information between the provider and the surrogate reduces overall disagreements. Finally, healthcare providers should be familiar with their state's statutes regarding appointment and removal of surrogates. Minimal planning and effort upfront can dramatically reduce the potential for a provider's future liability in treating an incapacitated patient.