An Ethical and Legal Framework for Physicians as Surrogate Decision-Makers for Their Patients

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U.S. Census Bureau, “2012 National Population Projections,” available at <http://www.census.gov/population/projections/data/national/2012.html> (last visited November 25, 2015). Also see Heidenreich P. A. , “Forecasting the Future of Cardiovascular Disease in the United States: A Policy Statement from the American Heart Association,” Circulation 123, no. 8 (2011): 933–944.

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NCGS §90–322, available at <http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_90/Article_23.html> (last visited December 8, 2015).

Luce J. M. White D. B. , “The Pressure to Withhold or Withdraw Life-Sustaining Therapy from Critically Ill Patients in the United States,” American Journal of Respiratory and Critical Care Medicine 175, no. 11 (2007): 1104–1108; White D. B. , “Decisions to Limit Life-Sustaining Treatment for Critically Ill Patients Who Lack Both Decision-Making Capacity and Surrogate Decision-Makers,” Critical Care Medicine 34, no. 8 (2006): 2053–2059; White D. B. , “Life Support for Patients without a Surrogate Decision Maker: Who Decides?” Annals of Internal Medicine 147, no. 1 (2007): 34–40; White D. B. Jonsen A. Lo B. , “Ethical Challenge: When Clinicians Act as Surrogates for Unrepresented Patients,” American Journal of Critical Care 21, no. 3 (2012): 202–207. One other exception in many jurisdictions is permitting doctors to serve as surrogates for relatives. However, it can be reasonably assumed that these physicians are also not serving simultaneously as the relative's doctor, a practice that is discouraged by both codes of medical ethics (see AMA, “AMA Code of Medical Ethics Opinion 8.19,” available at <http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion819.page> [last visited November 25, 2015]) and state medical licensure boards.

Georgia Code Ann § 31-32-4; Kansas Stat. Ann. § 58–629(d).

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See Street Jr. Haidet , supra note 9; Bensing J. Rimondini M. Visser A. , “What Patients Want: Patient Education and Counseling,” 90, no. 3 (2013): 287–290; Jagosh J. , “The Importance of Physician Listening from the Patients' Perspective: Enhancing Diagnosis, Healing, and the Doctor–Patient Relationship,” 85, no. 3 (2011): 369–374; Levinson W. Pizzo P. A. , “Patient-Physican Communication: It's about Time,” JAMA 305, no. 17 (2011): 1802–1803.

See Institute of Medicine, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life (Washington, D.C.: The National Academies Press, 2015).

Pew Research Center, “America's Changing Religious Landscape,” available at <http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/> (last visited November 25, 2015). However, this most recent Pew survey suggests that there has also been a major increase in the percentage of Americans labeling themselves as unaffiliated, although this should not be taken to infer that they are either atheist or agnostic.

Curlin F. A. , “The Association of Physicians' Religious Characteristics with Their Attitudes and Self-Reported Behaviors Regarding Religion and Spirituality in the Clinical Encounter,” Medical Care 44, no. 5 (2006): 446–453; Curlin F. A. , “Religion, Conscience, and Controversial Clinical Practices,” New England Journal of Medicine 356, no. 6 (2007): 593–600. Curlin F. A. , “To Die, to Sleep: US Physicians' Religious and Other Objections to Physician-Assisted Suicide, Terminal Sedation, and Withdrawal of Life Support,” American Journal of Hospice and Palliative Medicine 25, no. 2 (2008): 112–120; Curlin F. A. , “Physicians' Observations and Interpretations of the Influence of Religion and Spirituality on Health,” Archives of Internal Medicine 167, no. 7 (2007): 649–654.

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See White Jonsen Lo , supra note 18.

See 45 CFR 46, Subpart D, available at <http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html> (last visited November 25, 2015).

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Dent v. West Virginia, in U.S. 1889, Supreme Court, at 114.