Georgia Law Review, Vol. 42, p. 979, 2008
37 Pages Posted: 31 Aug 2007 Last revised: 11 Aug 2009
Date Written: November 2008
States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, our review of empirical research on surrogate decision-making challenges this justification. We find that default surrogate statutes do a reasonable job of capturing majority preferences for health care decision-making processes, but do not ensure that patients receive the treatment they would have selected for themselves if able. Rather, surrogates appointed under default surrogate statutes can be expected to frequently make treatment choices that are inconsistent with patient preferences. Nevertheless, in the absence of better alternatives, default surrogate statutes play an important role in the American health care system. We therefore urge states to consider certain statutory changes that would improve the ability of such statutes to effectuate patient wishes. We also identify several avenues for further empirical research that could help to improve the accuracy of surrogate decision-making.
Keywords: health care, decision-making, end-of-life, advance directives, psychology, statutory design
Suggested Citation: Suggested Citation
Kohn, Nina A. and Blumenthal, Jeremy A., Designating Health Care Decision-Makers for Patients Without Advance Directives: A Psychological Critique (November 2008). Georgia Law Review, Vol. 42, p. 979, 2008. Available at SSRN: https://ssrn.com/abstract=1008494 or http://dx.doi.org/10.2139/ssrn.1008494