1. SURROGATE
Shaden Eldakar

2. • Basic Definitions
• Advance Directives and use
• Surrogate statutes
• Vermont’s take
• History in law
OUTLINE

3. • Autonomy
– Ability to act with intention and understanding,
separate from another person or controlling force
– Underlying concept of informed consent
• Substituted Judgment
– Choosing what the patient would have chosen
• Best Interests
– Unknown patient preferences or patient has never
had capacity
– Decision is made in evaluating what may be in the best
interest of the patient
DEFINITIONS

4. • Guardians
– Appointed by the court
• Agents
– Appointed by the patient
• Surrogates
– Appointed by the clinician
DEFINITIONS

5. • Sanctioned in 1976
– Uphold patient autonomy
• Patient Self Determination Act in 1990
– Medicare institutions
– Provide information to patients
HISTORY OF
ADVANCE
DIRECTIVES

6. • 5-25% of patient have
completed Advance
Directives
• 25-45% of hospitalized
patients lose capacity
WHY IS THIS
IMPORTANT?

7. • Primary purpose is to make clear that
the typical method of utilizing family
members as decision makers is legally
ok
• Avoid costly guardianship hearings
SURROGATE
STATUTES

8. • Implemented with an executed advance
directive
• Operative when patient loses capacity
• Priority of persons who may serve as a
surrogate
SURROGATE
STATUTES

10. • We don’t have a statute!?!
• Why fix something that isn’t broke?
WHAT DOES
VERMONT DO?

11. • Property law
• “interested individual”
• COLST, hospice
VERMONT

12. • More than one decision maker
• Physicians are involved
• Focus on the core values of the patient
– “tell me about your loved one”
• “This is what we would recommend…
does that seem right to him/her?”
SUBSTITUTED
INTEREST
MODEL

13. • Predicting who will need decision making
is difficult
– Cognitive impairment, cva and NH
residents
• Completed ADs more likely to receive care
of preference
– Increase in AD completion
– ADs for typical course, DPHOA for
unforeseen
AD AND
DECISION
MAKING

14. • Hypothesis: Surrogates “are not better
than chance” at substituted judgment.
• Asked patient/surrogates what they
would do in certain scenerios
– Assessed the accuracy of patient
designated vs legally assigned
surrogates
– Impact of prior discussions of
patient’s preferences
ACCURACY OF
SURROGATE
DECISION
MAKERS

15. • Surrogates failed to predict patient
preference 1/3 of the time
• There was no difference in patient
designated vs legally designated
surrogate
• Previous discussions did not improve
accuracy of the decision
RESULTS

16. • State do not have to accept substituted
judgment of family members if they feel
there is insufficient proof that this
represents the patient’s desires
DUE PROCESS
CLAIM

17. • Nancy Cruzan
• Cruzan vs Director, Missouri Dept of Health
WHY IS THIS
IMPORTANT?

18. • Karen Ann Quinlan
• Devote Catholics
• Extraordinary means
WHY IS THIS
IMPORTANT?

19. • Mary O’Connor
• Multiple CVAs, NH resident
WHY IS THIS
IMPORTANT?

20. • Terry Schiavo
• 1990 cardiac arrest, PVS
• 1998 feeding tube removal requested
• 2001 feeding tube was removed for the
first time
• 2005 FT removed
• 14 appeals and numerous motions,
petitions, and hearings in the Florida
courts; five suits in federal district court
WHY IS THIS
IMPORTANT?

21. • Patient Autonomy- Advance Directives
• State statutes hope to avoid
guardianship
CONCLUSIONS

22. • There’s more work to be done.AND…

23. • 1 Bliss, Sally. Personal interview. 2/2014
• 2 Brody, H et al. Withdrawing Intensive Life-Sustaining Treatment-
Recommendations for Compassionate Clinical Management. New
England Journal of Medicine. 2007. 336;9: 652-657
• 3 Cruzan by Cruzan v. Director, Missouri Department of Health. 1990.
• 4 Health Care Decisions Act Summary.
http://www.uniformlaws.org/ActSummary.aspx?title=Health-Care
%20Decisions%20Act. Accessed 2/2014
• 5 Making Medical Decisions for Someone Else, A Vermont Handbook.
Vermont Ethics Network. 2009.
• 6 Matter of O’Connor. New York Court of Appeals. 1988.
• 7 Matter of Storar. New York Court of Appeals. 1981.
• 8 Pope, T. Making Medical Decisions for Patients without Surrogates.
New England Journal of Medicine. 2013. 369; 21: 1976-8.
• 9 Silveira, M, et al. Advance Directives and Outcomes of Surrogate
Decision Making before Death. New England Journal of Medicine. 2010.
362; 13: 1211-18.
• 10 Sulmasy, D., et al. Substituted Interests and Best Judgements.
Journal of American Medical Association. 2010. 304; 17: 1946-7.
• 11 Torke, A., et al. Scope and Outcome of Surrogate Decision Making
Among Hospitalized Adults. Journal of American Medical Association.
2014. Published electronically January 20, 2014
• 12 Vermont Statutes Online.
http://www.leg.state.vt.us/statutesmain.cfm. 2/2014
REFERENCES