Listing patients as 'next of kin' at hospitals may cause legal confusion

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When hospitalized patients list nonrelatives as next of kin, state laws might interfere with those patients’ wishes – and a new study suggests the situation isn’t rare.

In Connecticut, where researchers looked at medical charts of nearly 110,000 hospitalized veterans, eight percent had specified someone other than a close family member as next of kin – in conflict with the state’s “default surrogate consent” laws.

Default surrogate consent statutes are designed to designate a proxy for patients who can’t make their own medical decisions. In most states, spouses are given first priority, followed by adult children, parents and siblings, the authors write in a research letter in JAMA.

But states are inconsistent in their recognition of other relationships, like friends, distant relatives or unmarried or same-sex partners.

In the Connecticut study, unrelated designees noted in patients’ charts included “baby momma,” “common law spouse,” “live-in soul mate,” and “same-sex partner.”

Same-sex partners are almost never included in state statues, said Thaddeus Pope, director of the Health Law Institute at Hamline University School of Law in Saint Paul, Minnesota. In most states, an estranged sister would be appointed proxy before a same-sex partner.

Filling out an advanced directive care plan, which can be done easily online, would avoid the problem, but most people still do not do this, said Pope. (See Reuters story of April 16, 2014 here: reut.rs/1kbCSEV).

“The key piece of advice is to complete an advanced directive,” Pope, who wasn’t involved in the new study, told Reuters Health by phone. “Appoint whoever you trust, who knows you and your values and preferences, and give them a copy.”

“There’s a good chance that the person the state is going to pick for you is not the same person that you would pick,” he said.

Appointing a healthcare proxy or durable power of attorney may take more legal resources, but would also prevent confusion, said Dr. Andrew B. Cohen of Yale University School of Medicine in New Haven, Connecticut, who led the new study.

Cohen and his colleagues examined the next-of-kin relationships listed for 109,803 veterans who received care at Veterans Health Administration facilities in Connecticut between 2003 and 2013.

Almost 93 percent listed a nuclear or immediate family member as next of kin. About 3 percent listed a more distant relative and 4 percent listed a person with no blood or legal relation, often a friend, common law spouse or same sex partner.

Less than 1 percent listed other social connections, like landlady, priest, roommate or sponsor.

Six percent of veterans over age 65 and about 9 percent of those under age 65 had someone other than a nuclear family member listed as next of kin.

It is possible that a next of kin could be denied the right to make medical decisions for an incapacitated loved one if they are not recognized by state law, Cohen said, but he suspects it is not happening often.

“When it’s somebody who falls outside the nuclear family it may get in the way of timely clinical care,” Cohen told Reuters Health by phone.

“Whenever somebody’s not able to make their own decisions, that’s really complicated clinically,” Cohen said. “When there’s uncertainty about whether the person who is appointed as next of kin can do this, it slows down the decision making process.”

There will always be emergency situations where no proxy has been appointed beforehand, so a default state list is still necessary, according to Gina Bravo of the University of Sherbrooke in Quebec, Canada, who was not involved in the new study.

“We can understand that health professionals need a sort of order of who to call,” Bravo told Reuters Health by phone.

Quebec has a similar default consent statute, but does include a category for a person who shows special interest who is not a blood or legal relative, she said. Adding this category to U.S. statues would solve part of the problem, she said.

The choice should not be left to the doctor, who has a conflict of interest when it comes to giving or refraining from treatment, she said.