SURROGATE DECISION MAKING AAOS ETHICS COMMITTEE Joan Krajca-Radcliffe, MD 1

Be familiar with the established levels of medical-legal surrogacy and the hierarchy within each level Be aware of your state’s specific statutes regarding surrogate decision making, hierarchy, and limitations Be able to identify and utilize available resources to help in decision making and resolution of conflicts Objectives 2

Case The patient is a 40 year-old single male, stable, but in frail health due to multiple chronic medical conditions. Previously he had bilateral total shoulder replacements and is now hospitalized with infection in both shoulder joints. 3

Despite the recommendation of his orthopaedic surgeon, he refuses any type of surgical intervention, even after lengthy discussions regarding the risks and potential catastrophic consequences, including implant failure, sepsis, and death. 4

Medically-legally, can he do this? What is the issue? 5

After evaluation, the patient is deemed competent to make his own decisions. He is started on IV antibiotics. After continued discussions with his surgeon, he accepts only fluoroscopically- guided needle aspirations. 6

He does quite well initially but, while on his course of IV antibiotics, the shoulder infections worsen. He becomes septic and is moved to the ICU. After continuing to refuse any surgical intervention, his condition deteriorates and he is no longer able to participate in his care or make competent decisions. 7

He has no living will, advance directives, or durable power of attorney for healthcare (DPOA). His twin sister, who has reluctantly accepted his decisions so far, is torn between honoring his wishes and trying to save his life. She is aware of his decision never to agree to surgery, having seen his struggles with his chronic medical conditions and previous difficult surgeries. She plans to honor his wishes. 8

Who is the legal decision maker? 9

Later that day, the patient's younger brother arrives in town and is horrified by his sister's decision. He has always looked up to his older brother as a role model and strongly advocates for the surgery recommended by his surgeon. 10

What is the established hierarchy for surrogate decision makers? 11

What if there is no living will, advance directives, durable power of attorney for healthcare (DPOA), or available family members? 12

What if the patient's preferences are known but are not in writing? What if the patient has selected a surrogate informally, but legal documents are not completed? What if the patient is married but estranged and not yet legally divorced? 13

What if there is a designated surrogate, but his/her decision is inconsistent with the patient's known preferences or values? What if there is a conflict of interest or seemingly ulterior motive of a surrogate or involved family member? What if there are disagreements between surrogates? 14

When patients lose their decision- making capacity, it is imperative to ensure that health-care decisions are legally and ethically made on their behalf. Establishment of patient competency and surrogate decision making must be done appropriately. The physician must be familiar with his/her role in the process. Summary 15

American Academy of Orthopaedic Surgeons: Code of Ethics and Professionalism for Orthopaedic Surgeons, I. F. Adopted October 1988, revised American Academy of Orthopaedic Surgeons: Standards of Professionalism on Providing Musculoskeletal Services to Patients, Mandatory Standard 4. Adopted April 2005, amended April Lo B: Resolving Ethical Dilemmas – A Guide for Clinicians, ed 4, Chapter 13. Philadelphia, PA, Lippincott Williams & Wilkens, References 16

Van Norman G: Clinical Ethics in Anesthesiology: A Case-Based Textbook, Section 1, Chapter 4. Cambridge, Eng, Cambridge University Press, Council on Ethical and Judicial Affairs: Code of Medical Ethics, Opinion Chicago, IL, American Medical Association, ed