Texas law lets hospitals and doctors override your advance directive, and terminate curative care
Houston trial court says that Advance Directives Act of 1999 (Texas death panel statute) "works pretty well"
On September 22, 2017, I attended a hearing in the 189th District Court of Harris County, Texas, where Judge Bill Burke was presiding. The case is styled Evelyn Kelly, Individually and On Behalf of the Estate of David Christopher Dunn v. The Methodist Hospital; Cause No. 2015-69681. Ms. Kelly is Mr. Dunn’s mother. Mr. Dunn died while a patient at Houston Methodist Hospital.
This very interesting oral hearing addressed competing motions for summary judgment filed by both sides over whether Texas Health & Safety Code Section 166.046 (often called the “Texas death panel law”) is constitutional.
Medical futility law in Texas
Texas Health & Safety Code Section 166.046 codifies the Advance Directives Act of 1999. This law allows a treating doctor to ask a hospital committee to override patient and family wishes, and terminate all curative healthcare, food, and water to a patient.
There are minimal protections for patients and their families.
The statute only requires 48 hours’ notice of the committee meeting, and imposes no requirements on the makeup of the committee. Thus, it is no surprise that these committees are typically composed of hospital employees and physician colleagues of the doctor who wants to terminate care.
If the stacked committee agrees with its co-worker’s request, then the patient and family only have 10 days to find a new facility to care for the patient, before curative care, nutrition, and hydration can be stopped.
As a Houston, Texas medical malpractice lawyer, everyone I have ever spoken with about the statute is surprised. Some people think that they are safe because they have an advance directive that specifies their desire to have heroic efforts, including resuscitation, to prolong their life.
They are consistently shocked when I tell them that a hospital committee (often called an ethics or medical futility committee) following the Advance Directives Act of 1999 can ignore an advance directive and, so to speak, pull the plug. Do not mistake that language to imply that this frightening law can only be used on terminally-ill patients. There is no such limitation.
To me, though, what is even more surprising about the statute is that it clothes the hospital, doctors, and committee with complete immunity from criminal prosecution, civil lawsuits or liability, and even licensure review for their actions.
I have written and spoken about this statute on a number of occasions. In fact, I think that the law is so unfair to patients that I have testified before the Texas Legislature twice about how it should be amended. Unfortunately, most of the representatives and senators have shown no interest in fixing the serious risks to patient safety found in this law. I suspect this is because of hefty campaign contributions from hospital lobbyists, but who knows for sure.
What happened to Chris Dunn
According to court documents, Mr. Dunn was a patient in his 40s who is hospitalized at Houston Methodist Hospital. In short, the hospital and doctors on its medical staff recommended ending further curative treatment, but Mr. Dunn’s mother disagreed. The hospital then invoked the provisions of the Advance Directives Act of 1999, and its Bioethics Committee voted to terminate curative care 11 days after the committee gave notice of its decision.
Subsequently, attorneys representing Mr. Dunn and his mother filed a lawsuit and sought injunctive relief to prevent the hospital and doctors from ending care. Houston Methodist Hospital voluntarily agreed to continue to provide curative care to Mr. Dunn while the legal issues were sorted out. On December 23, 2015, he died.
The specific health care provided by Houston Methodist Hospital to Mr. Dunn was not an issue at this hearing. Rather, after Mr. Dunn’s death, attorneys continued the lawsuit for the purpose of challenging the constitutionality of the Advance Directives Act/Texas Health & Safety Code Section 166.046.
Texas Attorney General
While the Texas Legislature has repeatedly declined to amend the law, Texas Attorney General Ken Paxton has stepped up to the plate when it comes to protecting patient safety in these types of situations.
Attorney General Paxton's office filed an amicus brief on behalf of the State of Texas, on October 24, 2016, arguing that the law is unconstitutional. I thought that the amicus brief was excellent. It argued that the denial of life-saving medical treatment is the denial of a constitutionally-protected interest, and that the statute did not afford patients and family members adequate notice, a meaningful opportunity to be heard, and did not guarantee an impartial committee to decide the issue of continuation of care. His office sent an Assistant Attorney General who professionally presented these positions to the Court.
What happened at the hearing
Constitutional protections exist to provide safety to individuals from the government, not other individuals or entities. Thus, the basic constitutional argument against the statute, in this case, is that the Houston Methodist Hospital bioethics committee was acting under the color of state law because the committee is shrouded with legal immunity.
At the hearing, it did not take long to figure out the judge’s feelings or thinking on this issue.
Within the first 10 minutes of the hearing, the judge interrupted the attorney for the Plaintiff and said, “Life is a fatal disease.” The judge then commented that, “It’s odd that the Attorney General is here, because they don’t like the state involved in healthcare. Here, they are sticking their nose in—I consider this a very strange and political that the Attorney General is here.”
At one point, the Plaintiff’s side reference the existence of video evidence that Mr. Dunn, the patient, was awake and conscious, and, though he was intubated and could not speak, signaling his desire to live and even clasped his hands together in prayer. The judge quickly interrupted and said, “If he didn’t pray, could I . . . We’ve left the law and gone into your sermon.” At another point, the judge said, “I can’t tell you how bizarre this sounds.”
After reading these few short comments from the judge, I am sure that you are unsurprised that the Court verbally announced its “tentative” ruling against the Plaintiff. There would be no trial court decision that the statute is unconstitutional in any way.
The Court “tentatively” rejected arguments from the Plaintiff and Attorney General of Texas that constitutional violations are irreparable and survive the death of a patient. Instead, the judge said, “This case became moot when Mr. Dunn died.”
In discussing the Court’s “tentative” ruling, the judge said, “I don’t think there’s any problem with the statute. . . . It looks to me like a pretty good, careful statute that is fair to doctors and patients.” The judge added, “My ruling is that the statute provides lots of due process. In practice, the thing seems to work pretty well.”
In the next few weeks, the Court should issue its final written order. At that point, I believe, the case will likely go to the Houston Court of Appeals, and eventually to the Texas Supreme Court.
We are here to help
I have represented many families in end-of-life situations, including at hospital medical futility/ethics committee meetings and in court. If you find yourself in this situation, call Painter Law Firm, at 281-580-8800, for free consultation about your potential case.
Robert Painter is a medical malpractice and wrongful death attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who files medical negligence and wrongful death lawsuits on behalf of patients and their families.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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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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