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.