No Legal Immunity when Bypassing Surrogate Decision Makers (Bret Bohn)

Clinicians are regularly confronted with incapacitated patients whose surrogates seem to be requesting treatment inconsistent with the patient's wishes or best interests. If evidence of surrogate deviation is significant, clinicians not only may, but should, remonstrate with these surrogates. They should even temporarily bypass the surrogate while seeking confirmation of surrogate authority. 

But clinicians do not automatically get civil, criminal, and disciplinary immunity when they bypass surrogates. Clinicians may not be subject to any sanction if their reasons and process for bypass are sound. In other words, they may be "open" to liability but may not be found liable. 

This is the heart of a new opinion from the Alaska Supreme Court that follows a similar opinion from the Georgia Supreme Court. While legal immunity might make clinicians more willing to confront "bad" surrogates, it would also make them "too" willing to challenge surrogates who simply disagreed with the recommended treatment plan.