Comparing the FHCDA to Surrogate Decision Making Laws in Other States

Abstract:     
This is my invited contribution to a special symposium issue of the New York State Bar Association’s Health Law Journal titled “Implementing the Family Health Care Decisions Act.” While this issue will be of keen interest to medical and legal practitioners in New York, it also holds significant value for those in other states looking to either amend or better implement their own healthcare decisions statutes.

There seem to be at least three distinct missions of this special issue of the Health Law Journal. First, several articles have an empirical focus. They describe how the FHCDA has been implemented in hospitals and nursing homes. Second, several articles have a normative focus. They describe how the FHCDA can and should be extended to health care settings (e.g. hospice, home care) to which it does not now apply. Third, several articles take a broader normative focus. They explain how the FHCDA might be better implemented (e.g. by training ethics committees).

This article serves the third mission. It focuses on those provisions at the heart of the FHCDA: the authorization of surrogates to make health care decisions on the patient’s behalf. Specifically, this Article compares the surrogate rules in the FHCDA to the “default” surrogate rules in other states’ health care decisions statutes. These comparisons can be usefully grouped into three categories: (1) the surrogate list, (2) the scope of surrogate decision making authority, and (3) the resolution of conflicts between and among surrogates.

Number of Pages in PDF File: 10

Keywords: health law, healthcare, health care decisions, surrogates

JEL Classification: K32

Accepted Paper Series