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New risks in the family dynamics of surrogate decision-making

8/11/26

By: Sarah Emrick

For years, hospitals viewed surrogate decision-making primarily as a clinical and ethical issue. Today, we see this topic emerging in the litigation field as well. Florida’s statutory framework provides guidance regarding surrogate decision-making, but the practical realities facing hospitals often extend far beyond simply identifying the correct surrogate.

One challenge hospitals face is distinguishing between a family member acting as an advocate and a family member making an actual surrogate decision. A spouse who authorizes a heart transplant for an incapacitated patient may not even perceive the act as a “decision” if the proposed treatment appears obvious or necessary. Similarly, family members frequently view themselves as merely communicating what their loved one would have wanted rather than exercising their own decision-making authority.

This distinction matters because many family members later involved in litigation may not appreciate the legal significance of their role at the time decisions are being made. What feels like advocacy in the moment can become a focal point of scrutiny years later during discovery and trial.

Even when clinicians follow the statutory hierarchy, family members may later argue that the hospital failed to sufficiently investigate whether the surrogate’s decisions aligned with the patient’s preferences.

As litigation in this area continues to evolve, healthcare organizations should focus on several key strategies.

• First, verify and document surrogate authority under Florida Statute § 765.401. The chart should clearly reflect who was identified as surrogate and why.
• Second, document the patient’s wishes contemporaneously and, whenever possible, use the patient’s own words. Verbatim quotations can become powerful evidence when decisions are later questioned.
• Third, address family conflict on the record rather than through informal conversations. Documentation should reflect the nature of disagreements, who participated in discussions, and how concerns were evaluated.
• Fourth, involve ethics committees early in difficult situations. Ethics consultations can provide important support for clinical decision-making and may later serve as valuable evidence that conflicts were thoughtfully considered.
• Finally, remember that the healthcare provider’s ultimate obligation is to the patient, not to any individual family member.

Surrogate decision-making is no longer simply a matter of identifying the next person on a statutory list. Increasingly, it sits at the intersection of law, medicine, ethics, and family dynamics. As modern families become more complex, hospitals face growing exposure from allegations that a surrogate lacked authority, lacked capacity, misunderstood the patient’s wishes, or acted against them entirely.

In anticipation of litigation, it is important for hospital physicians and nursing staff to carefully document patient’s wishes, clear identification of surrogate authority, proactive management of family conflict, and a consistent focus on honoring the patient’s known wishes. In the coming years, healthcare organizations that treat surrogate decision-making as both a clinical process and a litigation risk will be best positioned to reduce exposure and defend their decisions when challenged.

For more information contact Sarah Emrick at sarah.emrick@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.