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Is rationing health care medical malpractice?

The standard of care varies depending on the circumstances

With some hospitals facing shortages of ventilators and other life-saving equipment, concepts like healthcare rationing are getting more and more attention. It’s not just in the United States.

The Telegraph reported that a policy in Italy would lead to withholding care for patients over 80 years old who contract coronavirus. The idea underlying the policy is that there aren’t enough intensive care unit (ICU) beds to go around, so they’ll be saved for younger patients who have better statistical odds of surviving.

Bloomberg predicted a flurry of lawsuits questioning the “excruciating life-or-death decision” that hospitals and doctors will make during the pandemic. The U.S. Department of Health and Human Services has already spoken up, warning in a bulletin that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age.”

How would this work under Texas law?

If patients or wrongful death beneficiaries (certain family members) bring Texas medical malpractice cases alleging injury because of rationed care during the coronavirus pandemic, they’ll be decided based on the standard of care.

The standard of care is what a reasonably prudent hospital or doctor would do under the same or similar circumstances. In other words, the judge and jury will evaluate medical malpractice claims of this nature based on what reasonably prudent healthcare providers would do in the midst of a pandemic, such as the coronavirus.

The dark side of Texas law—even without a pandemic

I’m glad to see that these life-and-death decisions are getting some attention in the news. I think it’s important for people to think about them.

Another type of life and death decision that’s gotten less popular attention is the dangerous Texas law called the Advance Directives Act of 1999.

Under this draconian law, hospital committees are given complete immunity if they follow certain bare-bones procedures and decide to withhold treatment from a patient. The idea behind it is called medical futility, which, in theory, means that a treating physician believes that further care won't do any good for the patient. If they invoke the statute and the patient dies, the law allows no accountability.

The scary part of the statute is that hospitals can make these decisions even when patients or family members disagree. The law is broad and applies to any patient receiving care in the State of Texas. Doesn’t matter if you have insurance or not. It doesn’t matter if you’re awake and alert or not.

Pandemic or not, I recommend learning more about this statute. Check out this article about what you need to know about the Advance Directives Act before being hospitalized.

If you’ve been seriously injured because of substandard hospital or physician care, then contact a top-rated skilled Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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