A new idea to fix the Texas 'death panel' law
By eliminating immunity, doctors and hospital committee members would have to think twice before stopping care
The Advance Directives Act of 1999 has been in place for over a decade. Session after session, the Texas legislature has failed to amend it despite a terrible controversy over the provisions governing end-of-life care.
As it stands now, hospital committees, not patients and their families, have the ultimate say-so in whether a person receives curative care, food and water—in other words, they make the 'life and death' decision.
Plus, the due process provisions of the law are dubious: (1) Hospitals only need to give a patient and family 48-hours' notice of the committee meeting. (2) If the committee sides that further care is 'futile' then the patient and family are only guaranteed 10 days to try and find a transfer facility, or curative care, food and water stops. In the 2007 and 2009 legislative sessions, a diverse coalition of organizations (from Texas Right to Life to the American Civil Liberties Union) unsuccessfully lobbied the legislature to extend the draconian 10-day period, either indefinitely or to some specific higher number of days.
With the focus on budget shortfalls and education this legislative session, as well as a number of major agencies coming up for sunset review, who knows how much attention this sad law will get. If it is given serious consideration, I propose a different focus this go-round.
Under Texas Civil Practice & Remedies Code Section 166.045(d), hospital committees and those participating in the medical futility process are granted absolute immunity from civil, criminal, or administrative prosecution—they are, quite literally, above the law. If there is not the political will to change the controversial 10-day period, then how about dropping the immunity provision altogether and waiving the hospital committee privilege for medical futility proceedings, which cloaks everything in a cloud of secrecy. I believe this would go a long way toward removing the cavalier attitude that some doctors and hospitals have shown, because their actions would be subject to review by judges and juries who would use the general negligence standard that governs everyone else.
This 2009 photo shows Robert Painter testifying before the Texas House of Representatives committee that was considering amendments to the Advance Directives Act of 1999. He has testified before such committees in the 2007 and 2009 sessions.
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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