Bioethics, end of life, euthanasia, media bias, medical ethics, Medical Futility, Texas Advance Directive Act

There’s (Still) No “Futile Care Act” in Texas

I keep running across news articles like this one in the Dallas Morning News (free subscription required) which claim that Texas has some sort of “futile care” law. There is no such thing as a “Futile Care Law” in Texas and never has been. (Previous LifeEthics posts include several in April, 2006.)

There is a law called the Texas Advance Directive Act (TADA). (Here at the Texas Statutes website in pdf, and an excerpt with my comments, here.) The law was written by a coalition of doctors, lawyers, patient advocates, disability rights groups, and pro-life groups such as Texas Right to Life, National Right to Life, and Texas Alliance for Life.

In that DMN article above, please note that Dr. Fine was interviewed without knowledge that he would be quoted in an article about a very sad case, one which had not come to the point of being subject to TADA at the time of the interview.

I am concerned that Texas Right to Life is not speaking up about why they found the law acceptible in 1999, but feel that they can condemn it – and all doctors and hospitals – now.

We never stop treating the patient. The TADA has never been invoked in order to withhold food or water from patients or from a patient who only needs artificial food and water. The Texas Advance Directive Act does, however, allow doctors to refuse to use medicine and technology that is not in our patient’s best interest, treatment that is harmful or futile.

There are no futile patients, and no “futile care law,” there is only futile medicine and technology.

If my patient suffers organ failure after organ failure, some medicines and technology can become harmful — sometimes by causing side effects and more organ failure, often by prolonging the patient’s dying.

In fact the TADA coalition has been trying to come to a consensus on making sure that the Act cannot be invoked if the only intervention needed is food and water. It has also been agreed that the Coalition will support a longer period of notice before the ethics committee meeting is held, that medical records need to be offered in a timely manner and that the family should have two weeks in order to find another doctor or facility.

The cases in Texas which have been cited to criticize the TADA include:

  • A woman who had been in the ICU for 4 or 5 months after heart surgery, who had had a stroke and was on a ventilator. Her doctors had suggested to her family that perhaps they should not begin dialysis when her kidneys failed. The family rejected the suggestion and the patient had to have continuous, then intermittent dialysis. She then needed increasing doses of medicines to raise her blood pressure. After a while, the attending doctor again suggested stopping or withholding the addition of new treatments because of the risk of pain and complications that each treatment added on top of the previous complications. Again, the family refused. The doctor decided that he couldn’t continue to escalate the interventions and asked for an ethics committee meeting under 166.046. The family members postponed several times, putting off the meeting. Somewhere in this time, the family threatened legal action, picketing, and raising as much bad publicity for the family as they could muster. Finally, the hospital set a meeting for a firm time and refused to budge. The ethics committee members agreed with the doctor and began the process to help the family find a new doctor or a new facility for the patient. The family began protests that became news nation-wide. A new doctor was found and additional treatments and invasive interventions were performed on the patient. Finally, the doctor reported that the patient had had a heart attack, and the ventilator was stopped without verifying brain death.
  • In another case, the patient was brain dead, but the family members sued to prevent the doctor – who had been the woman’s family doctor for years – from turning off the ventilator. A new doctor came in, did an additional test, and confirmed that the patient was brain dead.
  • A third case involved a woman who had a stroke, was unconscious and required a ventilator and dialysis. The patient’s daughter was an ER doctor in that hospital. There are no Texas long term facilities that offer dialysis to an unconscious patient on a ventilator. The patient was sent home with home dialysis and ventilator.
  • A fourth case involved another woman who had had a stroke, was unconscious and required dialysis. There is still no facility in Texas that offers dialysis for a comatose patient on a ventilator. Her family objected to the hospital’s “forcing” them to move her to another facility. Eventually, she was moved to another state, where there is a long term facility that could provide the treatment she needed.

Unfortunately, a repeating theme from some of the lawyers at the meetings is an objection that doctors are protected from malpractice if they follow the Act.

Two identical Bills before the Texas Legislature, SB 439 and HB 1094 not only remove the current protection from risk of malpractice for doctors who follow their consciences and would require doctors to use ever escalationg “life saving treatment” until (as in the case of Andrea Clark) the family decides to remove it or until transfer to another doctor or facility is arranged, without a time limit.

Do we really want to override doctors’ consciences? Remember the NEJM article from last week.

Concerning abortion due to failure of contraception and prescribing contraceptives to 14 to 16 year olds when parents object, the Chicago Tribune reports that some believe this is the case:

That approach doesn’t even give a patient the option to access other physicians,” said R. Alta Charo, a professor of law and bioethics at the University of Wisconsin-Madison who was not involved in the study. “It’s a raw imposition of your personal beliefs on all those who come to you for professional services.”

About bnuckols

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


6 thoughts on “There’s (Still) No “Futile Care Act” in Texas

  1. >Your arguments are not substantively compelling. "Futile Care Law" is merely a label, and while the title of the Act is different, it, nonetheless, accurately captures the essence of the highly problematic nature of one its provisions. Namely, persons other than one’s self (or their attorney-in-fact) have the power to deny life prolonging treatment. This is a violation of the individual’s unalienable human right to life and liberty. It also violates Constitutional guarantees to the freedom of religion if the individual is unable to carry out their deeply held religious convictions because of overly burdensome laws that have the actual and/or intended effect of prohibiting its practice. Finally, there is no due process. Death row inmates get more reviews than the innocent and afflicted. There is no procedural due process, right to cross examination, evidentiary standards, explicit standards or burdens of proof, explicit rights to appeal or review, etc.. As to the doctors and their good intentions, it does not matter what any doctor thinks or surmises regarding the “futility” of care. The assessment is merely probabilistic in nature, and it is prone to error because it lacks certainty in every instance. Moreover, there are numerous factors that impair the judgment of those making the decision by virtue of the direct and indirect benefits they derive by virtue of their association with the institution burdened by the case and general medical community at large.This law is an affront to the dignity of human life.

    Posted by RightLawyer | April 24, 2008, 5:22 am
  2. >There is a strong ethical history behind both the right of the patient to refuse treatment and the right of all humans to refuse to act against one's conscience. Each is essential to the very core of human dignity. The safeguard is "medical judgment" and the oversight of other professionals in the form of the ethics committee.No one has the right to the labor of another against the other's conscience and will, except in very limited circumstances. The conscience and medical judgment of the physician is the basis of his actions in the interest of his patient. Is it not ironic that the very person whose judgment you would override is the person you want to provide medical care?

    Posted by | April 24, 2008, 7:37 pm
  3. >It's 12-19-08 and the HHS has announced that healthcare workers cannot be forced to provide services that violate their ethical code. Does this mean that I as a doctor cannot be forced to provide aggressive care that only prolongs the suffering of a terminally ill patient?

    Posted by S. Fitzgibbons MD | December 19, 2008, 1:25 pm
  4. >I believe the usual phrase is treatment which prolongs dying – not treatment which prolongs the life of a patient. The refusal is never intended to actively end the life of the patient – we wouldn't smother a patient who continues to breathe off the ventilator or inject potassium chloride into one with an irregular heart beat. We certainly wouldn't refuse to allow oral liquids or forbid the use of a feeding tube that is in place if the patient can tolerate it without discomfort.The Texas Advanced Directive Act already outlines a process for the doctor to refuse to provide treatment that is not medically necessary. The safeguards are in the review by the ethics committee and peers.

    Posted by | December 22, 2008, 7:07 am
    • Sorry to take so long to answer – I didn’t notice the changes on this blog.
      Those cases are from the testimony at the Texas Legislature in August, 2006 and other news at the time the post was written.
      The article you reference gives the story of Sun – his bones and lungs were not growing and he had been on the ventilator for all of his six months of life. A judge had heard the case and agreed with the doctor who objected to continuing the ventilator.

      Posted by bnuckols | April 27, 2013, 5:34 am

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