Does the Law Reflect Patient Preferences? Discordance Between Legal Surrogate Hierarchy and Chosen Surrogate Decision-Makers in Preoperative Patients

Background All surgeries requiring general anesthesia carry the risk that a patient will be unable to make medical decisions during the procedure. However, only a small proportion of patients who are not critically or terminally ill complete medical power of attorney (MPOA) documentation, with lower rates among underserved populations. If an unexpected value-dependent decision needs to be made during a surgery (e.g., removal of an organ linked to patient fertility that may affect cancer-related outcomes), the medical team must consult a surrogate decision-maker (SDM) assigned per state law. In this study, we seek to understand what preoperative patients in Texas know about SDM laws and how well these laws align with patients’ preferences.Methods Two investigators approached patients in the preoperative area at a private hospital (PV) and safety-net hospital (SN) and provided a standardized verbal survey examining patient knowledge of SDM laws in Texas and who they expected to make decisions for them, as well as patient demographics.Results Of the 101 patients surveyed, nearly 30% designated a preferred SDM that differed from the one assigned by the Texas law. There was no significant difference in rates of discordance between patients by location, language, race, or ethnicity. Only marital status was shown to have significant effect on concordance (p<.001). Patients at PV were significantly more likely to have MPOA documentation (p < 0.05).Conclusions Our study reveals a significant gap in patients’ understanding of local SDM laws. There is likely similarly low understanding of local laws throughout the country. This misunderstanding may miss opportunities for patients to have their preferred decision-maker participate in their care and place physicians at odds with the law when attempting to follow patient preferences divergent from the SDM hierarchy. To best honor patient preferences, surgeons should have early conversations with all preoperative patients about SDM.