A Constitutional Challege to the Texas "Futile Care" Statute

Robert Bennett, an attorney out of Gilmer, Texas, has filed a constitiutional challenge to the Texas Futile Care Statute. The patient is in the Regency Hospital in Carrollton, Texas--which is in Denton County, Texas.

Robert was able to get a Bowie County probate judge to issue a TRO against the hospital by establishing a guardianship there. Good thinking. You can bet that judges in the smaller counties are shocked by this law--unlike some of the more jaded big city judges.

He has also filed suit against the Texas Attorney General asserting the unconstitutionality of the statute.

I have to say that I don't think that the hospitals and doctors expected the kind of push back they have been getting over this law the past year. I think they thought that they had settled all the issues and won the game when they passed the law in 1999.

They didn't see that there is a huge disconnect between their values and personal ethics and those of the community at large. The fight over this law could be the big showdown.

Hopefully, the utilitiarians and futilitarians will lose big time on this issue.

If they do, then I think that we need for the legislature to start investigating how the state funded medical schools are teaching medical ethics. If they are letting loose a bunch of young doctors who believe that they have the right to force their way about who should live and who should die because of subjective value judgments--the People of Texas are entitled to know that and to take measures to stop it. Pamela Winnick's editorial in the Wall Street Journal is a good indicator that young doctors in this country are eagerly advocating jumping the gun on withdrawal of treatment:

A medical resident--we called her "Dr. Death"--at the Intensive Care Unit
at Long Island's North Shore Hospital chased us down the hallway.
"Your
husband wants to die," she told my mother, again. Just minutes before I had
asked her to leave us alone.
"He can't even talk," I reminded her.
"He
motioned with his hands when we tried to put in the feeding tube," she said.
Not exactly informed consent, I pointed out as we turned our backs on her
and walked down the hallway, trying to avert our eyes from the other patients in
the ICU that night, each of them at various points in the so-called "twilight
zone" between life and death.

Afflicted with asbestos-related lung
cancer, my father, Louis Winnick, was rushed into the ICU in late May after a
blood clot nearly killed him. The next day, my husband and I raced to New York
from Pittsburgh. I packed enough work and knitting for what might be an extended
stay, but I also put in a suit for what I was certain would be my father's
imminent funeral. Still, he wasn't dead yet. And we had no intention of
precipitating the inevitable.
"Dr. Death" was just one of several. A new
resident appeared the next day, this one a bit more diplomatic but again urging
us to allow my father to "die with dignity." And the next day came yet another,
who opened with the words, "We're getting mixed messages from your family,"
before I shut him up. I've written extensively about practice of
bioethics--which, for the most part, I do not find especially ethical--but never
did I dream that our moral compass had gone this far askew. My father, 85, was
heading ineluctably toward death. Though unconscious, his brain, as far as
anyone could tell, had not been touched by either the cancer or the blood clot.
He was not in a "persistent vegetative state" (itself a phrase subject to broad
interpretation), that magic point at which family members are required to pull
the plug--or risk the accusation that they are right-wing Christians.

If the doctors we are educating at state expense in Texas are like the above residents, we Texas Baby Boomers might be paying out our tax dollars to educate doctors who will decide when we are going to die--whether we like it or not.

Hospital Ethics Committees and Conflicts of Interest

This is an issue that I testified about at the Public Health Committee Hearing this past week. As I wrote here, the Texas Legislature is revisiting the Texas Futile Care Statute. I testified within the context of a family I helped where the hospital was going to withdraw life-sustaining treatment. You can read about it in this article. (free registration required)

I am blogging about this because of the comments about the mother's testimony in this case made by another pro life blogger--who with me--is a member of the Texas Advance Directives Coalition. She is also a physician. She said the following about the testimony of the mother, Cynthia Deason, who testified at the hearing:

I'm afraid that most of the problems that I heard about were "acts of God"
(the woman who was found with her ventilator tube dislodged) or angry people
reacting poorly.

First, though the tube may have dislodged through an act of God, it was not an act of God that Kalihla was put on a ventilator which was not capable of alarming when the patient received too little oxygen. Second, she was conscious and recovering prior to this anoxic event.

Less than ten days after the anoxic event, the attending physician was already diagnosing persistent vegetative state and taking the case to the ethics committee for a futility review. Note that the literature says that the diagnosis of PVS is a clinical diagnosis which should take at least 3 to 6 months.

In other words, the ethics committee of the very hospital where this "accident" occurred was going to make the decision to end the life of the patient, and when that was going to happen. That, my friends, is what is called an apparent conflict of interest.

If medical negligence occurred in Kahlila's case, the very hospital that makes the decision to withdraw treatment will financially benefit because--under tort reform--a live, disabled patient is worth more in a law suit than a dead one. That is because the hospital would have to pay for future care. If they don't have to pay for future care, their damages are limited. It is unconscionable for a committee made up of doctors and hospital staff to be allowed to make such a decision in the face of unresolved questions about possible negligence on the part of the hospital. I am not saying that this was the intent of the ethics committee in her case. I am saying that there is such a conflict of interest here, that a hospital committee has no business making such a decision--whether they can be fair or not. Have you heard the phrase: "Appearance of Impropriety"?

It has been amazing to me that the physicians on the Texas Advance Directives Coalition, either fail to understand or refuse to acknowledge, the conflicts of interest that a hospital ethics committee can have that necessarily taint a decision of "futility". Their stubborn refusal to see that this law can be abused by those with less than stellar motives disqualifies them from having all this power, in my opinion. Especially when there are no checks and balances to ensure fairness by the ethics committee.

Further, in the video of the public testimony that I wrote about here, Dr. Vince Friedewald, a retired cardiologist, who works as a consultant with an ethics think tank out of Notre Dame, testified to the financial conflicts of interest that hospital ethics committees have due to the expense of these kinds of patients. (I agree and it seems to me that in most of these cases, the hospital has about run out the insurance and public benefits just before the futility review) You can view his testimony if you move the clip cursor to about 6 hours 48 minutes, you will hear his testimony about this. Click on the Public Health Committee Hearing link.

I am disappointed in the very common tendency of physicians to consider the families in these cases as being merely emotional and angry--and without credibility.

I guess the blogger writing the above comments, hasn't yet listened to the testimony of the wife of Jimmy Givens. He was a conscious man, from whom the doctors intended to withdraw life support. As a result of the intervention of an attorney, Brian Potts, he was moved to a nursing home where he had an additional week to say goodbye to his family. He died surrounded by his family, holding his wife's hand and telling her that he loved her. Had he not been given the additional time to find a transfer, he would have been subjected to a doctor coming into his room to turn off his pacemaker against his will. Can you imagine the terror and anger that death under such circumstances would have caused? Further, another cardiologist looked at the chart and has expressed that there are other questions about the case that should be answered before a rush to judgment about the inevitability of the outcome of Mr. Givens' death.

Going back to my case involving the Kalilah, the hospital told us that she would never wean off the respirator. They were wrong. She has been off the respirator for over 2 weeks as I write this.

I have to say, that before I became involved in these cases, I was disgusted and disillusioned by the profession of law because of the excesses by some lawyers. Participation in the Texas Advance Directives Coalition and these cases has changed my mind.

If it weren't for lawyers, we might have doctors deciding what rights we have and what due process should look like. Given that doctors seem incapable of comprehending what a conflict of interest is, that is a scary thought.

The Texas Legislature Begins Review of Futile Care Law

The Public Health Committee of the Texas House held hearings this past Wednesday, August 9, 2006 on the Texas Futile Care Statutes. It lasted from 10 in the morning until 11:30 at night.

You can watch it by clicking here:


You can hear my testimony by moving the little clip postion to about 6 hours 10 seconds.

But, the testimony that you should really go listen to is the priest on the pro-futile care panel. He begins at about 4 hours 44 or 45 minutes. Listen through until he comes on. He is connected to St. Joseph's in Houston.

His testimony is appalling. He begins by saying that the right to life is not absolute. He first uses the example that you can't kill someone else to live. Then, he segues into the idea that the right to life is not absolute by using the example of when someone is a burden to themselves, a burden to the family or a burden to society.

Just appalling.

A Physician Comes to the Rescue: Life 1- Futile Care Theory 0

Last week, I got a call from the son of a hospital patient located in Beaumont, Texas. His mother, Daisy M. Conner, had been subjected to the futile care protocols of the hospital. She suffered from spinal meningitus that had gone undiagnosed, twice, at the emergency room of a different hospital.

The family member called me on Tuesday or Wednesday prior to the deadline of that coming Saturday. It is fortunate that I once practiced in Beaumont. I called my good attorney friend, Kip Lamb, who practices there. He and his associate, Leigh Parker, sprang into action and obtained a Temporary Restraining Order against the hospital. Here is the story.

Prior to and at the futility review, the family had been told that there was no objective evidence of brain damage or brain death. The family was aghast at the idea of withdrawing support under such circumstances. Further, they thought that she was responsive to them.

Before Kip and Leigh got the TRO, it was discovered that the people who were supposed to be helping with a transfer during the ten day period prior to withdrawal had left town or were unavailable. The hospital case manager had a personal emergency and told the son that he would have to find another transfer himself. The treating physician went out of town on vacation.

The son called the physician who was covering to ask about his mother's treatment prior to withdrawal. Under the Texas futile care statute, the treatment is to continue until the ten day period is up. The son was concerned about keeping the mother stable until a transfer could be arranged. Had his mother become sicker during that period, it would have made a transfer even more difficult.

That physician told the son that she had not looked at the chart, that she didn't have time to look at the chart and that she would not look at the chart. She told him that his mother was brain dead and that he should just let her go as she was a burden to society. The TRO was obtained the day she made those statements and it ordered that the hospital and doctor were to give all treatments necessary to preserve life.

It is fortunate that the attorneys in Beaumont, Leigh and Kip, knew a pro-life physician, Dr. James L. Holly. Dr. Holly agreed to take over the case.

Dr. Holly spent his Saturday at the hospital. He read the complete chart. He assessed the patient, and also thought that she was responsive. However, he noted that a blood flow study had not been done to determine if blood was reaching Mrs. Conner's brain. He asked the family for permission to give the test.

Unfortunately, the test showed that there was no blood flow to the brain. The test confirmed brain death. Dr. Holly, that same day, met with the family for almost two hours explaining things fully, answering all their questions and praying with them for the wisdom and guidance of God. He left the decision concerning continued treatment with the family.

Given that brain death had occurred, the family elected to withdraw life-sustaining treatment. On Sunday, the family went to church and then met Dr. Holly at the hospital at 2 pm. They prayed with Dr. Holly, said their goodbye's and then support was withdrawn and Mrs. Conner passed.

The story is here. The family's press release is below:

Press Release

The Family of Mrs. Daisy M. Conner thanks Dr. James L. Holly for agreeing to assume the care of Mrs. Conner on Saturday, August 5, 2006. Since taking the case, Dr. Holly has treated Mrs. Conner and her family with compassion and dignity.

Dr. Holly took the time to read the complete record, thoroughly assess Mrs. Conner and to order a diagnostic test to determine if Mrs. Conner is receiving blood flow to the brain, a test which had not been performed by the other physicians. After receiving the results of the test, Dr. Holly gathered the family and explained that the results show that Mrs. Conner’s brain is no longer receiving blood flow.

Dr. Holly spent almost two hours, answering the family’s questions and thoroughly explaining the situation. During the meeting, he showed great respect and sympathy for the feelings of the family. He joined with the family in prayer, helping us ask for the wisdom and guidance of God.

Prior to Dr. Holly’s assumption of the care of Mrs. Conner, the family had received only the subjective opinions of the other physicians regarding her condition. The family, because of its moral values and religious convictions, could not in good conscience justify allowing the hospital or prior treating physicians to remove life support based on the subjective opinions of the health care professionals. The family believes that human life is too precious and blessed by God to trust only human opinion regarding ending it, no matter how educated that opinion is.

The family now believes that it has sufficient, objective, information to make an appropriate decision regarding Mrs. Conner’s future. After much reflection, discussion and prayer, the family decided to allow Dr. Holly to remove life support so that our beloved mother, sister and family member could depart this Earth and join our Father in Heaven.

Today, Sunday, August 06, 2006, the family gathered around Mrs. Conner’s bedside to say goodbye. Dr. Holly joined us there so that he could personally order and monitor the removal of life support. He kindly stayed as Mrs. Conner passed. Mrs. Conner passed away this afternoon.

We ask God to bless Dr. James L. Holly for helping us make this difficult and painful decision, and for personally being there to support and comfort the family as Mrs. Conner departed on her final journey to join God in Heaven.

The Family of Mrs. Daisy M. Conner

Date: August 6, 2006




This is how physician's should practice. But, because this law gives a trigger for a "drop dead" deadline to the doctor and hospital, they can dispense with the niceties of objective testing, giving full information and treating the family with compassion and dignity. They don't have to make an acceptable case for withdrawal of treatment. They pull the trigger and then it is up to the family to push the issue of transfer, find other doctors and retain lawyers--all within a short 10 day period.

The law is barbaric.

Thank God for lawyers like Kip Lamb and Leigh Parker. Thank God for Doctors like Dr. James L. Holly. They deserve our profound gratitude.