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Ann Thorac Surg 2003;76:1336
© 2003 The Society of Thoracic Surgeons
a Christian Congregation of Jehovah’s Witnesses, Legal Department, 2821 Route 22, Patterson, NY 12563, USA
To the Editor:
In their ethical discussions, Dr Sade [1] and Dr McKneally [2] err in their assumption that a surrogate decision maker has legal authority to override an advance directive of a formerly competent patient on the basis of nothing more than the surrogate’s belief that the patient "might have changed his mind." If that were all it took to invalidate a person’s express written instructions, all variety of legal documents (eg, wills, insurance policies, other contracts) could easily be nullified. On the contrary, such instruments—including health-care advance directives—cannot be disregarded or evaded with the ease and legal impunity suggested by the hypothetical case and apparently assumed by Drs McKneally and Sade.
In the first place, neither next-of-kinship nor surrogacy in general gives a surrogate decision maker discretion to override a patient’s explicit treatment instructions [3]. As the District of Columbia Court of Appeals observed, "sometimes family members will rely on their own judgments or predilections rather than serving as conduits for expressing the patient’s wishes [4]." In fact, when the patient’s treatment instructions are clear and unequivocal, there is no reason to consult the surrogate. In the case of In re Duran [5], the Pennsylvania Superior Court ruled that the appointment of a husband to act as his wife’s guardian for the sole purpose of consenting to treatment his wife had refused in an advance directive was reversed on appeal. Moreover, in the hypothetical case of Dr Sade, the validity of the wife’s "consent" is highly questionable in view of her lack of legal authority to disregard her husband’s plain and specific instructions. Thus, the hypothetical patient’s surgeon may well have committed a battery for which he could be liable in damages for administering blood without legally valid consent [6, 7]. The facts of the South Carolina Supreme Court case of Harvey v. Strickland [6], which held that the surgeon was subject to liability, obviously served as the basis for the hypothetical case in The Annals.
Although it is not surprising that your journal would present an ethical discussion that in the main is sympathetic to the views of many surgeons, the attitude of Drs Sade and McKneally toward the hypothetical patient (who was one of Jehovah’s Witnesses) borders on condescension; the patient’s religion-based refusal of blood is portrayed as inconvenient and unreasonable because it stands in the way of the surgeon’s perceived duty to do what he believes is "best" from a medical standpoint. However,
rational patients will not want only their medical benefits considered. Reasonable people have a range of objectives they want to pursue. They are interested not only in medical benefits, but psychological, social, economic, legal, religious, and educational benefits. Maximizing the good in one of these spheres will come at a cost in some other sphere. Rational people will trade off benefits in different spheres until the aggregate total is maximized. This means that often it is irrational to maximize one’s welfare in any one sphere. To the extent that the physician is committed to maximizing the patient’s medical well-being, rational patients often will not find the recommended course in their overall interest [8].
Dr Guinn [9] does a nice job of highlighting the paternalism at the heart of the motives and actions of the hypothetical doctor and the views of Drs McKneally and Sade. Their views are not shared by all surgeons. As Mattox and Engelhardt [10] wrote in a treatise on surgical ethics, "when the family or surrogate decision maker reaches a conclusion totally different from the previous wishes of the patient ... , the surgeon’s responsibility is to protect the patient’s authoritative past wishes." In sum, contrary to the views of Drs Sade and McKneally, the legal and ethical victim in the hypothetical case was the patient, not the surgeon.
References
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