What is a Health-Care Surrogate?

Many times a person may suffer an injury or illness and require medical decision-making for their care.  If that person is unable to understand the doctors or medical professionals and give “informed consent” for such health care, and if that person has not executed a durable power of attorney for health care or an “advance health-care directive” giving another the authority to make such decisions, the medical providers may be unable to render care.  In such a situation, Mississippi law provides for the necessary authority for another to make such medical treatment or health-care decisions.  This is called the “Health-care Surrogate” law.  Our firm is able to provide written documentation of relationship under this law.

Health-care Surrogate.  Section 41-41-211 of the Uniform Health-care Decisions Act of Mississippi allows a third party (known as a health-care “Surrogate”) to make health-care decisions for one who is unable to make such decisions for himself, where no health-care agent or guardian has been appointed for the patient or, if appointed, is not reasonably available.  The Surrogate must be within the designated classes of persons authorized to act as Surrogate, which are in order of priority: (i) spouse, unless legally separated; (ii) adult child; (iii) parent; (iv) adult brother or sister; or (v) an adult who has exhibited special care and concern for patient, who is familiar with patient’s personal values, and who is reasonably available to act.  A Surrogate must make any health-care decision for the patient in accordance with the patient’s individual instructions, if any, and other wishes to the extent known to Surrogate (“substituted judgment” test); otherwise, a Surrogate will make the decision in accordance with the Surrogate’s determination of the patient’s best interest, taking into consideration Patient’s personal values to the extent known to Surrogate.  Since a medical provider has the right to require written evidence of such surrogate status, our firm has developed and can prepare a written Declaration of Health-Care Surrogate for such situations.

The Mississippi Court of Appeals recently considered the authority of a health-care surrogate to enter into a binding admission agreement for the incapacitated patient.  Bankston V. CLC of Biloxi, LLC, NO. 2016-CA-01190-COA.  Jack Bankston fell at his home, hitting his head and fracturing his cervical spine. He was taken to the University of Mississippi Medical Center where he underwent spinal surgery and was eventually transferred to a long-term acute-care center, Regency, at Forrest General Hospital.

Ralph Kahler, M.D., was his primary physician while at Forrest General until his discharge. The same date as his hospital discharge, Jack was admitted to Biloxi Community Living Center. The nurse’s admission notes indicate that he still had a tracheostomy, which interfered with his ability to speak.

That same day, Jack climbed out of his nursing-home bed by crawling over the rails more than once.  Around 8:30 p.m., Jack was found lying on the floor on his back. He was taken to the emergency room at Biloxi Regional Medical Center, where he died the following day.  Jack’s wife, Victoria, as a representative of his estate, filed a wrongful-death complaint alleging negligence against CLC.  CLC responded with a motion to dismiss and compel arbitration.  The court held that Jack was bound by the admission agreement and the arbitration provision contained in that agreement.  Victoria appealed.

Analysis:  Victoria argued that she did not possess the authority as Jack’s healthcare surrogate to execute the admission and arbitration agreement on Jack’s behalf.  Under the healthcare surrogate statutes, a third party may make healthcare decisions for another, but only if certain prerequisites are met.  A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.  CLC argues that Dr. Kahler’s discharge-summary note, charted the same day Jack was admitted to CLC, and which specified that Jack’s diagnoses consisted of a “closed head injury with encephalopathy related thereto” and “acute delirium secondary to [the closed head injury],” constituted a determination that Jack lacked capacity.  CLC also points to the nurse’s admission notes from the day Jack was admitted to CLC, which stated that the “patient does not speak and is confused in nature” and that he “did not acknowledge understanding.”  CLC argues that these medical records showed that Jack was incapacitated.

However, the Court found that nowhere in the record is there an indication that Jack had been determined by Dr. Kahler to lack capacity.  Medical records indicating Jack’s diagnoses and symptomatology are not the equivalent of an affirmative determination by a physician that the patient lacks capacity as defined by the statute.  Additionally, the nurse’s admission note stating that Jack exhibited confusion and did not indicate understanding, which CLC argues supports the finding that Jack lacked capacity, is of no bearing.  A determination that an individual lacks capacity to make healthcare decisions is not one for a court to make after reviewing a patient’s medical records.  The standard is not whether the court, in its opinion, finds that the evidence indicates that the patient lacked capacity.  The standard is whether the primary physician has made the determination that a patient lacked capacity.  Here, there is no evidence in the record that Dr. Kahler made the determination that Jack lacked “capacity” as that term is defined under section 41-41-203(d).  Because there is no evidence that Dr. Kahler determined that Jack lacked capacity, Victoria lacked the authority to act as his healthcare surrogate and thus bind him to arbitration.

BANKSTON v. CLC OF BILOXI, LLC, NO. 2016-CA-01190-COA https://courts.ms.gov/Images/Opinions/CO123050.pdf

For more information, contact an experienced attorney at Courtney Elder Law Associates. We can answer your questions and help you through the process.

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