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Publication Date

2008

Abstract

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, the review of empirical research on surrogate decision making in this Article challenges this justification. The authors 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. The authors therefore urge states to consider certain statutory changes that would improve the ability of such statutes to effectuate patient wishes. The authors also identify several avenues for further empirical research that could help to improve the accuracy of surrogate decision making.

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