Can money play a role in the hospital and doctor's decision to pull the plug?
Texas tort reform laws and the Advance Directives Act of 1999 work together to create frightening financial incentives
A California judge recently ruled that it would be up to the jury to determine whether a teenage girl is deceased. Many people may reasonably think that questions of life and death are well settled, but in modern medicine and law that is not always the case.
The California judge is presiding over a medical malpractice lawsuit involving a 13-year-old girl who went into cardiac arrest after a routine procedure to remove her tonsils. The doctors and hospital told the girl’s parents that she suffered irreversible brain injuries and recommended terminating life support. The parents disagreed.
After the medical malpractice lawsuit was filed, the hospital filed pleadings to take advantage of a California state law that limits a total recovery to $250,000 in wrongful death matter involving medical malpractice.
This tragic case reminds me of the current state of Texas law, and how it sides with hospitals and physicians when it comes to life-and-death decisions.
Legal incentives to pull the plug
Under Texas law, if a doctor and hospital’s negligence causes a severe injury to a patient, then they are responsible for the cost of past and future care to take care of the injury. Some people get confused at the impact of tort reform, so I should point out that this type of economic expense is not capped by Texas tort reform laws.
In my career as a Houston, Texas medical malpractice attorney, I have handled many cases where patients of various ages have sustained brain injuries as a result of hospital or physician negligence. Patients with these types of injuries require extensive therapy and medical and nursing care. In addition, they often have to live the rest of their lives in an assisted-care facility or have at-home attendants. This can cost millions of dollars to provide.
On the other hand, if a doctor and hospital’s negligence causes severe injury to a patient, but the patient dies shortly after the medical negligence occurs, then the healthcare providers are responsible for a dramatically reduced amount. Let me explain how this works.
When a patient is seriously injured by medical malpractice, but then dies, it immediately stops the accrual of all expenses to take care of the patient.
Under the Texas wrongful death statute, a patient’s surviving spouse, children, and parents can file a lawsuit regarding the medical malpractice.
In order to determine what additional damages might be recoverable in the wrongful death lawsuit, we have to look at the deceased patient’s future earning capacity. In a case involving a young child, this may be difficult to prove. In a case involving a stay-at-home mother or father, or a person who is retired, there would likely be no lost income whatsoever.
If there are no future medical bills or lost future income, then often all that is left the claim would be the intangible, non-economic damages suffered by the patient’s family members. These harms and losses include the loss of the relationship with the deceased family member, pain and suffering, and mental anguish. Concerning non-economic damages, Texas tort reform laws cap the total liability for all physicians at $250,000, and another $250,000 for the hospital.
Many clients who come to my office to discuss their potential wrongful death cases are shocked when they realize how the law works.
But that’s not all. When you superimpose the Texas system of damages caps with provisions the Advance Directives Act of 1999, even a freshman economics student could see that there is a potential problem and conflict of interest.
The Advance Directives Act allows a hospital committee to make a unilateral decision to terminate care, food, and water to a patient, with very limited protections to the patient and family. The committee can meet with 48 hours’ notice to the patient, and can terminate care, food, and water with 10 days’ notice after the committee decides that further care would be medically futile. Plus, as long as the committee follows these basic rules, both the hospital and the committee members are exempt from criminal prosecution, civil lawsuit, or even administrative review of their licensure.
Mind you, like “brain death” and other nebulous concepts, “medical futility” is in the eye of the beholder. These hospital committees are typically composed of hospital employees, like nurses, risk managers, and administrators, as well as physicians on the hospital medical staff. Do you think that the financial advantages of having a deceased versus living patient, who was the subject of medical malpractice, ever crosses the committee members’ minds during their deliberations about medical futility?
What you can do
If you are faced with a situation where hospital administrators, nurses, or physicians are encouraging you to “pull the plug” or consent to withholding treatment for a loved one, I encourage you to slow down the process and make sure that you have all of the information.
Was your loved one healthy, but now you are being told that he or she is brain dead? What exactly happened? What testing have they done to show brain death? Do the hospital representatives and doctors seem rushed in their decision making?
If you are being pressured into signing a do-not-resuscitate (DNR) order, you should be aware that Texas law allows a physician to enter such an order without your consent. If this topic is brought up, and you believe that it is inappropriate, then it is time to get help.
The experienced medical negligence attorneys at Painter Law Firm, in Houston, Texas, understand the requirements of the Texas Advance Directives Act of 1999, how DNR orders work, and how to find evidence that shows whether medical malpractice is motivating a hospital or physician decision to terminate treatment. We have represented clients at hospital committee meetings or litigation involving hospitals in the Memorial Hermann system, Kindred system, and Kingwood Medical Center.
For a free consultation about your potential case, call us at 281-580-8800.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He represents patients and their families in hospital and medical ethics committee proceedings, and investigates and files medical malpractice and wrongful death lawsuits. He is a frequent author and speaker on topics including medical malpractice, medical futility and ethics, and end-of-life issues.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
A physician has to supervise the care and prescriptions of nurse practitioners and physician assistants under written, signed agreements [...]read more
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes [...]read more
A physician has to supervise the care and prescriptions of nurse practitioners and physician assistants under written, signed agreements
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes
This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine
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