Bioethics, end of life, Futility, medical ethics, Medical Futility, medicine, public health, public policy, Texas, Texas Advance Directive Act

Not a Texas “Futile Care” Case?

I think our heart strings are being pulled for the wrong reasons in the case of a Dallas woman. I don’t believe that the case is covered by the Texas Advanced Care Act.

I wonder whether the doc was forced to admit that Mrs. Webster is a “long term care patient” that has a chronic condition and that further hospitalization – and therefore dialysis at that hospital – is not “medically necessary” under Medicare guidelines?

If so, this isn’t a Texas Advance Directive Act case at all. It’s just a case where the patient needs to go home and receive outpatient dialysis. Medicare will pay for the latter, but will not pay for “long term care.”

From the little I can find about Ruthie Webster, it doesn’t sound like this woman needs to be in a hospital at all now that she’s off the ventilator. She now needs “long term care,” which is not covered by most insurance, including Medicare. All patients who are diagnosed with end stage renal disease automatically become Medicare eligible.

And that’s where things really get complicated.

As I understand it, Mrs. Webster had some sort of complication that caused seizures while on kidney dialysis early this summer. There is very little chance that the dialysis was done at the hospital where she is now, since most dialysis is done at out patient, dedicated dialysis centers. Mrs. Webster was taken to the hospital, and required a time on the ventilator. She is now off the ventilator, but seems to be in a coma and still has end stage renal failure, requiring dialysis.

From The Dallas Morning News, August 18, 2006 (free subscription required):

Children fight to save mom

Carrollton: Hospital seeks to end care of woman with brain injury

08:18 AM CDT on Friday, August 18, 2006

By EMILY RAMSHAW / The Dallas Morning News

The children of a North Texas woman with a severe brain injury are fighting to keep her alive, after a Carrollton hospital ruled it would discontinue life-saving treatments.

And the family’s attorneys are waging a legal battle to prove that a Texas statute allowing hospitals to end treatment against the family’s will is unconstitutional.

Lacresia Webster and her siblings say their mother, Ruthie Webster, is deeply religious and believes only God should give and take life. While Ruthie Webster has been largely unresponsive since early this summer, when a bad reaction to a kidney dialysis treatment sent her into seizures, her kids say she has shown signs of improvement. The 61-year-old is now breathing without a ventilator.

“My mom spent her life in the church. She always felt like, ‘Who are we to decide? God decides,’ ” Lacresia Webster said Thursday. “If this is the way she’s going to be, she’s still my mom. I’m not giving up on her.”

But documents signed by officials at Regency Hospital of North Dallas, where Ruthie Webster has been since late June, indicate that Mrs. Webster is not expected to recover and that continuing the treatments would be futile.

Mrs. Webster has not been declared brain dead, and hospital officials wouldn’t say whether she’s in a vegetative state. But family members said she appears to be in a coma: She opens her eyes and moves her feet and hands slightly but doesn’t speak.


Mr. Bennett said that so far, Regency has taken great care of Mrs. Webster. All of her bedsores healed, he said. And in letters to family members since the decision to remove Mrs. Webster’s treatment, hospital officials offered to help them seek another facility for her. The hospital has informally agreed to cover the costs of the move, Mr. Bennett said.

But for the Webster children, who are considering moving their mother to facilities in Atlanta or Indiana, it’s the principle that matters. They don’t want to be forced to move their mother. And they certainly don’t want anyone outside of the family deciding when it’s time to end treatments.

“My mother, she’s breathing on her own, just like you and I are today,” said Helena Webster Hill, who lives in Atlanta. “As long as she’s fighting to live, we believe we ought to stand with her and fight with her.”

I wonder whether the doc was forced to admit that Mrs. Webster has a chronic condition and that further hospitalization – and therefore dialysis at that hospital – is not “medically necessary” under Medicare guidelines.

She became Medicare eligible – whether she signed up or not – when she was diagnosed with end stage renal failure. I can’t imagine that any private insurance would allow her to *not* sign up, as so many retired people who had insurance as part of their benefits have found.

Medicare is a stickler about proper diagnosis, coding, and standard of care. Her doctors and the hospital are at risk of felony charges if they don’t treat her the same way as every other long-term care patient, eligible for Medicare.

I’m not even sure whether the family is allowed to pay for her to stay in the hospital, without the hospital and docs becoming ineligible for Medicare and all Federal and State funds.

Medicare will not pay for indefinite stays in the hospital – or, more specifically, it pays a set price for any given diagnosis, regardless of the course of the patient. They also watch for “fraud and abuse” in diagnosis, length of stay and treatments. Medicare defines “long-term care” patients as patients with chronic diseases – those who are stable and whose status is not changing. From

Long-term care is a variety of services that includes medical and non-medical care to people who have a chronic illness or disability. Long-term care helps meet health or personal needs. Most long-term care is to assist people with support services such as activities of daily living like dressing, bathing, and using the bathroom. Long-term care can be provided at home, in the community, in assisted living or in nursing homes.
Medicare doesn’t pay for this type of care called “custodial care”. Custodial care (non-skilled care) is care that helps you with activities of daily living. It may also include care that most people do for themselves, for example, diabetes monitoring.(emphasis in the original)

Again, if she’s a Medicare patient, the docs and hospital are at risk for jail and triple fines or losing all ability to take care of any Medicare, Medicaid, TriCare, or Workman’s Comp – and most insurances – if they try to work around the Medicare definitions, diagnoses and codes.

Medicare will pay for outpatient dialysis. In fact, all end stage kidney patients are automatically covered for dialysis.

But most dialysis facilities are *out patient* – away from the hospital – and aren’t set up for comatose patients.

So, the woman needs a nursing home with the ability to dialyze her or one that can transfer her by stretcher to an outpatient dialysis center that can handle a comatose patient. Payment for her dialysis needs to be changed to private pay or Medicaid, with Medicare Part A, B and/or Medicare/Medicaid.

What I wonder is why don’t her children want her near them and why did lawyers and courts get involved?

Edited 4/27/13 to fix formatting errors – BBN

About bnuckols

Conservative Christian Family Doctor, promoting conservative news and views. (Hot Air under the right wing!)


2 thoughts on “Not a Texas “Futile Care” Case?

  1. >"I think our heart strings are being pulled for the wrong reasons in the case of a Dallas woman. I don't believe that the case is covered by the Texas Advanced Care Act.That statement makes no sense. The hospital went to the ethics committee to withdraw treatment under 166.046. The reasons given the children have to do with her comatose state. The hospital specifically used the statute in order to withdraw the treatment. The doctors at the Advance Directives Coalition claim that they don't use these futility meetings because of lack of funding. You just demonstrated in your analysis that they actually do use funding as a reason.If you read 166.046, you will note that it does not require that a patient be qualified, i.e., that the patient be unable to communicate or have a terminal or irreversible condition. It only requires that the treating physician believe that the treatment is "inappropriate" and that the ethics committee agrees.Your comment about "heartstrings" is disappointing and not on point. If the family can't find a place to transfer her, she will not receive dialysis and she will die.Further, we have been unable to find an outpatient dialysis center (in other cases) that will take patients who can't sit up. We've had to look for nursing homes who can do the dialysis in-house. Finding such a bed has been a very difficult task. The lady in my Austin case had to be taken home to be dialyzed there.

    Posted by Jerri Lynn Ward, J.D. | August 28, 2006, 10:29 pm
  2. >P.S. The lawyers and the courts got involved because the hospital was forcing withdrawal of treatment through 166.046.You will NEVER get lawyers out of this issue. This is an issue about people's lives and choices that are being overruled by doctors and hospitals.The Texas Constitution gives people the right to have disputes concerning property and life decided in the Courts by juries. We aim to see that people have those rights protected.If you think we will stop fighting you–you are very mistaken. In fact, you may very well lose the gains you made in tort reform over this.

    Posted by Jerri Lynn Ward, J.D. | August 28, 2006, 10:35 pm

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