Surrogate Selection: An Increasingly Viable, but Limited, Solution to Intractable Futility Disputes

My article, "Surrogate Selection: An Increasingly Viable, but Limited, Solution to Intractable Futility Disputes," was just published by the St. Louis University Journal of Health Law and Policy (vol. 3 at 183-252).  Here is the issue cover.  Here is a final prepublication draft.  Here is an abstract:

The focus of this Article is on the avenues for resolution, if the futility dispute proves to be intractable. Many New England Journal of Medicine poll respondents wanted to simply override the son, but noted that they would not do so because of legal concerns. [FN12] Physicians are overwhelmingly reluctant to withhold or withdraw treatment without the *187 consent of the authorized decision maker. [FN13] Accordingly, without explicit permission to do otherwise, physicians generally comply with surrogate requests for treatment even when they think it is cruel and wrong. [FN14]

Only under Texas law do physicians have clear permission to refuse to provide inappropriate treatment. [FN15] When providers and patients' surrogates cannot agree on appropriate life-sustaining medical treatment (“LSMT”), the Texas Advance Directives Act (“TADA”) designates the hospital ethics committee as adjudicator of last resort. [FN16] If the hospital committee agrees that the requested treatment is inappropriate, the provider earns legal immunity for refusing to provide it. [FN17] The Idaho State Senate recently passed a bill to do the same thing. [FN18] And policymakers in other states have considered, or are now considering, similar legislation, albeit most are vaguer than TADA. [FN19]

*188 But Harvard Medical School Professor Robert Truog argues that this too-provider-friendly sort of internal dispute resolution legislation is both unnecessary and dangerous. [FN20] He argues that current healthcare decision laws in every state already give healthcare providers an adequate mechanism to avoid providing inappropriate medicine demanded by surrogates. Specifically, when a surrogate demands treatment that providers deem medically inappropriate, these “surrogate selection” laws often permit (or even encourage) providers to designate a different new surrogate from whom consent to withhold/withdraw can be obtained. [FN21]

*189 Truog argues that a mechanism like TADA is most useful, and most justified, when surrogates make decisions not in the best interests of patients. But in precisely such a situation, there is no need to resort to a TADA-type mechanism. Instead, Truog argues, the “remedy should be to use existing pathways to challenge the legitimacy of the surrogate to make these decisions and to seek appointment of another decision maker.” [FN22]

The logic behind these “surrogate selection” laws is simple. A surrogate is the patient's agent and, as such, must act according to the patient's instructions, known preferences, and best interests. When a surrogate exceeds the scope of her authority, she can and should be replaced. [FN23] For example, providers took a surrogate selection approach in the famous Helga Wanglie case. [FN24] Instead of asking the court to directly determine that their recommended treatment was correct, providers instead asked the court only to make a procedural decision appointing a new surrogate. [FN25] This surrogate, in turn, would make the substantive decision (presumably in accordance with provider recommendations). [FN26]

*190 In Section One, I describe the nature and prevalence of futility disputes. In Section Two, I describe the role of surrogates and the standards that they must apply when making medical treatment decisions on behalf of patients. Unfortunately, the available empirical evidence indicates that surrogates do a rather poor job of representing patient's preferences and interests. So, in Section Three, I argue that unfaithful surrogates should be replaced.

In Section Four, I demonstrate that surrogate replacement is a proven and viable dispute resolution mechanism. While providers were ultimately unsuccessful in both Wanglie and similar cases during the early 1990s, surrogate selection has, more recently, proven to be a successful approach. Emblematic of this trend is a string of cases during 2008 and 2009 in which several courts replaced patients' surrogates because they were demanding inappropriately aggressive end-of-life treatment. [FN27]

Finally, in Section Five, I argue that while surrogate selection has become increasingly well grounded both in statutory standards and in judicial precedent, it remains only a partial solution to intractable futility disputes. To replace a surrogate requires evidence of a contradiction between the surrogate's decision and the patient's instructions, known preferences, or best interests. But, for two main reasons, providers will frequently be unable to demonstrate any such contradiction. First, providers will often lack enough evidence of patient instructions or preferences to demonstrate surrogate deviation. Second, in many cases, surrogate decisions will actually be in harmony with patient wishes.

In sum, Professor Truog is right to endorse surrogate selection as a solution to intractable futility disputes. It is a mechanism that can work, and one that, where possible, should be preferred over power-shifting laws. Yet, since surrogate selection cannot resolve significant categories of conflict, we must still develop dispute resolution mechanisms to handle those remaining disputes in which providers conflict with “irreplaceable” surrogates.