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Liability issues relating to healthcare professionals interaction with patient surrogates in FL Print E-mail
Written by Jeffrey Segal MD JD & Michael J. Sacopulos JD   
Sunday, 18 July 2010 16:37

             Patients suffering from serious illness often are unable to participate in their own healthcare.  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 their patient's guardian, power of attorney, or surrogate for assistance in determining preferred course of treatment.  It is the legal issues related to the relationship between the physician, incapacitated patient, and surrogate that this article seeks to explore.

            Incapacitation of acute medical in-patients is significant.  Some studies place the percentage of incapacity amongst acute medical in-patients at forty percent (40%).[i]   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, especially older ones and specialists, indicated that they would postpone conversations with terminally ill end-of-life patients.  These discussions frequently took place once no more treatment options were available and the patient had deteriorated. [ii]  It could be surmised from this that physicians may not be fully informed as to their incapacitated patient's wishes when entering into conversations 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 that physicians did not know whether a patient had a Living Will approximately thirty-five percent (35%) of the time.  In twenty-four percent (24%) of the time, a physician did not personally speak with the patient's surrogate.  In a full ten percent (10%) of cases, the physician could not even identify a patient surrogate.  Finally, when questioned, physicians reported sixty-nine percent (69%) of the time that 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. [iii]

            With these facts as a backdrop, it should be no surprise that physicians and patient surrogates experience some level of difficulty in communication.  Physicians reported that disagreements between themselves and surrogates were common.  However, it should be noted that "overt conflict" was rare, occurring only five percent (5%) of the time.  It is also been reported that agreement on medical treatment between physician and surrogate was less likely when physicians experience trouble contacting the surrogate.  Also, Asian physicians experience more difficulty reaching agreement with surrogates than their white colleagues.

          Even when communication went smoothly between the physician and patient's surrogate, many difficult decisions had to be made without any prior discussions with the patient as to healthcare preference.  Over fifty percent (50%) of the time, physicians and surrogates had either not discussed healthcare preferences and end-of-life issues with the patient or were unaware of the patient's desires as to these issues.  It should also be noted that physicians may be placed in a position of taking care of a patient in an acute condition with whom they had no pre-existing relationship.  This situation places the physician several steps removed from determining patients' preferences.  Obviously, this less than optimal condition is difficult for both physician and surrogate.  In fact, nearly one-quarter (1/4) of physicians felt that decision making in this circumstance caused them a great deal of distress. 


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About the Authors

Jeffrey Segal is a board-certified neurosurgeon who was educated at the University of Texas and the Baylor College of Medicine, earning  Phi Beta Kappa and AOA Medical Honor Society recognition. Dr. Segal is the founder and CEO of Medical Justice.

Michael J. Sacopulos is a partner with Sacopulos, Johnson & Sacopulos of Terre Haute, Indiana.His area of practice concentrates upon healthcare litigation including medical malpractice defense and third party payor issues.   He is General Counsel of Medical Justice Services, Inc.


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Contact via email or call 877.MED.JUST (877.633.5878). 


[i].         The Lancet, Prevalence of mental incapacity in medical inpatients and associated risk factors: cross-sectional study, Volume 364, Issue 9443, Pages 1421-1427, 16 October, 2004;

[ii].        The New York Times, Denise Grady, Facing End-of-Life Talks, Doctors Choose to Wait, 12 January, 2010;

[iii].       Journal of General Internal Medicine, Alexia M. Torke, M.D. MS, Physicians' Experience with Surrogate Decision Making for Hospitalized Adults, 25 July, 2009;




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