Dual-Physician Decision-Making for Unrepresented Patients: Legal and Ethical Obligations for the Second Nontreating...

AbstractPatients without capacity or a surrogate decision maker are known as unrepresented. These patients are highly vulnerable and frequently encountered in healthcare settings, though there is little consensus regarding how medical decisions should be made on these patients' behalf. Several states now require a second nontreating physician (SNTP) to evaluate nonemergent medical decisions for unrepresented patients. This article examines the legal and ethical challenges faced by SNTPs in the dual-physician authorization process, including biases in SNTP selection, time constraints, power dynamics, and accountability concerns. We propose a checklist to guide SNTPs in the care of unrepresented patients while minimizing biases and conducting rigorous risk-benefit assessments. Institutional strategies to address the challenges faced by SNTPs include systematic SNTP selection processes, protected time for evaluations, peer review panels, training to mitigate implicit bias, and iterative review for quality improvement. By providing an ethical framework for dual-physician authorization and actionable processes for minimizing bias, we seek to promote fair and thoughtful decision-making on behalf of unrepresented patients.