To The Editor:
I would like to comment on the recent articles in the "Ethics
in Practice" section of The Journal regarding surrogacy
(82-A: 748-749, May 2000) and paternalism (82-A: 1050-1051, July
2000), by Capozzi and Rhodes. Whenever possible, physicians should
know the correct health-care decision-maker before starting treatment.
Legal liability may attach to the physician who does not adhere
to the directives of the proper party. Physicians may be held liable
for a wrongful death or the costs of a wrongful life. The latter
term applies when unwanted treatment is given to a patient to sustain his
or her life.
A competent patient without exception should direct his or her
own care. Controversy may occur when a patient is incompetent. For
incompetent patients, a bona fide living will is a mandatory health-care
directive. The physician must adhere to these guidelines, which
are the expressed intention of the patient. A bona fide living will
trumps the judgment of any third party.
Drs. Capozzi and Rhodes define a surrogate as "someone
who can be called upon to make health-care decisions on behalf of
a patient when the patient lacks the capacity to make those decisions." By
this definition, a surrogate may be the person legally designated
by the patient as having the durable power of attorney over health
care, a state law-mandated "next of kin," or a
court-appointed conservator. As Capozzi and Rhodes point out, even surrogates
with legal clout may be challenged. The person who has durable power
of attorney must also follow the expressed advance directives of
the patient unless the patient can state otherwise. Statutes with
the next-of-kin order usually are in play to resolve conflicts when
there is no living will or power of attorney. A court-appointed
conservator may also be used to resolve conflicts. In my geographic
area, the term surrogate usually applies when there is no legal
designate. Most often, an individual is designated by family consensus
to make decisions. A spouse does this most commonly, but children
or parents are often surrogates. Most states with the next-of-kin
statute allow family members to abdicate their decision-making status.
Drs. Capozzi and Rhodes define paternalism as "a physician’s
decision to act for a patient’s good without regard for
the patient’s conception of what would be good in the given
situation." My legal opinion would be to avoid paternalism
unless time is of the essence. If time is not of the essence, I would
recommend appealing to the court to obtain the authority before
proceeding with any treatment that would be contrary to the patient’s
wishes. If paternalism is to be used, the physician should explicitly
document his or her reasoning.
Conflicts may occur when interested third parties challenge the
authenticity of a living will, power of attorney, or family decision-maker.
Physicians should look to hospital ethics boards, hospital counsel,
and/or the courts to resolve these conflicts. When time
is of the essence, the physician must still show due diligence and
exercise reasonable judgment. This judgment should be documented contemporaneously.
Physicians have a duty to their patients to follow the
proper directives and to find the proper health-care decision-maker.