I recently met with a new father whose infant has been bounced around three Memorial Hermann hospitals in her short life.
She was born at one Memorial Hermann suburban hospital and then transferred to another one of the system’s suburban hospitals that had a more-equipped neonatal intensive care unit (NICU). When she arrived at the second Memorial Hermann hospital, her family recalls the doctors and nurses saying that she should be fine.
Later, she was transferred to the Memorial Hermann facility in the Texas Medical Center, because of a suspicious infection. Once she arrived there, the father said, the attitude of the healthcare providers was noticeably different and pessimistic.
As I listened carefully to the story of what had happened in this baby’s care, that statement caught my attention.
As a Houston, Texas medical malpractice lawyer, I have represented multiple patients and families at Memorial Hermann hospitals who felt pressured by hospital administrators, doctors, nurses, and social workers to agree to stop curative treatment. On many occasions, my clients felt that the healthcare providers were being too pushy too quickly, without giving the patient time to get better. Some clients suspected that their loved ones’ deteriorated medical condition was because of malpractice, and that the aggressive lobbying by hospital officials was part of a “cover up” effort.
It is seldom, if ever, possible to know what truly motivates this type of aggressive lobbying by healthcare providers. Patients and families are uniformly shocked when they find out how far Texas law allows those health care providers to go.
Texas law gives hospitals almost all the cards
The Texas Advance Directives Act of 1999 gave Texas hospitals sweeping power unlike any other law in
America. I have written in detail about the scary provisions of this law and other articles, which you can read using links at the bottom of this article. I will just summarize the high points here.
A Texas hospital committee has near-absolute power to determine when further health care would be “medically futile” and, thus, can vote to withhold curative treatment, food, and water. This, of course, would lead to the death of a patient.
The law does not require the committee to be called anything in particular, but they are often referred to as ethics committee or medical futility committee proceedings. In order to convene a meeting of this type of committee, a patient and/or family must be given 48 hours’ notice.
The law does not define the term “medically futile,” so that is left up to the committee to decide. Similarly, the law does not specify the committee members, so it is up to the hospital to make up the committee membership. Typically, committee members include hospital administrators, doctors on the hospital medical staff, and nurses and social workers employed by the hospital.
In the event that the hospital committee determines that further care is medically futile, it must provide the patient and/or family with the decision. Upon doing so, the patient and/or family has 10 days to transfer the patient to another facility, or the hospital and doctors can terminate further curative treatment, food, and water.
The Texas law only allows a very narrow means of judicial review to stop the hospital committee. A court can enter a temporary restraining order to prevent the hospital from stopping treatment, food, and hydration, on the sole basis that with additional time, the patient and/or family could find a different facility to accept and continue care for the patient.
So long as the hospital follows the statutory procedures of the Advance Directives Act of 1999, it is immune from civil suit, criminal prosecution, or even administrative or licensure review for its actions. The State of Texas does not require hospitals to report anything regarding these committee decisions, so the only information available outside of hospitals is anecdotal, from attorneys and patient families who have gone through the process.
While I personally find this law to be draconian and unethical, when you consider how it ties in to tort reform legislation, I find it downright nightmarish. If the hospital severely injured a patient as a result of medical negligence, it could use the ethics/medical futility committee process to lead to the patient’s death, and thereby limit the hospital’s financial responsibility.
Memorial Hermann hospitals
I have seen Memorial Hermann hospitals use the ethics/medical futility more frequently than any other hospital system in the Houston area. In my experience, Memorial Hermann hospitals also tend to use aggressive informal encounters with patients and families before pursuing a formal ethics/medical futility committee proceeding.
In various cases, my clients have shared very similar experiences, which typically go like this.
Stressed-out family members are asked by a doctor or nurse to have a family meeting with healthcare providers. The family members are put in a conference room, and then doctors and nurses file in around them, in what is often a standing-room-only situation. One after another, the healthcare providers talk about how further care would be medically futile, the patient would not want to live this way, it would be a strain on the family, and so forth.
As these informal family meetings proceed, my clients have uniformly told me that the healthcare providers present the families with one, and only one, choice . . . agree to end care.
As a Houston, Texas medical negligence attorney, I can easily see why a hospital system might prefer to have these decisions made by the family, rather than healthcare providers. First, there would likely be no record of the intense lobbying by the healthcare providers, but the medical records would reflect that the family consented to end treatment. Second, it eliminates any need to have an ethics/medical futility committee decision, which might be subject to the narrow legal challenge allowed by Texas law.
Children’s Memorial Hermann Hospital’s “CAPS Team”
Now is a good time to get back to the story that I started with. As I was meeting with this dad, he mentioned how his family had been repeatedly approached by the “CAPS Team” at the hospital.
At Children’s Memorial Hermann Hospital, “CAPS” stands for “Chronic and Palliative Services.” A “chronic” condition is one that will be long-standing and is unlikely to be cured or changed. This could be something like heart failure, cancer, permanent brain injury, or a genetic abnormality.
“Palliative” care falls in between curative care and hospice care. Curative care focuses on healing, or curing, and illness. Hospice care provides comfort to a patient, while awaiting death. Palliative care focuses on quality of life, while possibly continuing some medical treatment to prolong life.
The hospital’s website describes the CAPS Team as “a compassionate program” to help parents deal with a life-threatening or complex prenatal diagnosis. In other words, the hospital intends for the CAPS Team to get involved with parents who get the news that their unborn or newly born baby has a genetic abnormality, is not expected to survive much past birth, or has a complex medical condition.
The CAPS Team membership includes a neonatologist, nurse practitioner, registered nurse, pediatrician, social worker, child life specialist, and chaplains.
After speaking with this new father recently, and looking into the Children’s Memorial Hermann Hospital CAPS Team, I found it interesting that the CAPS Team may interact with family members more for a counseling or advisory role, rather than as treating doctors and nurses.
To be clear, if your child is at Children’s Memorial Hermann Hospital, and you are approached by the CAPS Team, then pay careful attention. I do not see any circumstance where that could be good news.
While at first glance, the hospital’s decision to have a specialized CAPS Team may appear to be an effort to add more objectivity to the advisory and decision-making processes, I am wary of another possibility.
When the hospital maintains a centralized CAPS Team to approach parents, it makes it easier for the hospital administration and risk management to hand-pick individuals on the CAPS Team. This could allow the hospital administration to streamline the delivery of a potential hospital-desired outcome of getting the parents to consenting to ending care for their children.
What you can do
I have been involved in many cases where hospital administrators, risk managers, and healthcare providers seem to try to make it sound like parents only have one rational choice for a health care decision. That is not true.
If you have a child hospitalized at Children’s Memorial Hermann Hospital, or any other hospital, be aware that you have choices when it comes to healthcare decisions.
I recommend that any parents with a child admitted to Children’s Memorial Hermann Hospital be familiar with the term “CAPS Team,” what it is, and how it works.
While it is always appropriate to politely listen to recommendations from healthcare providers, if you feel aggressively pressured to agree to end care, with no other choice, then it is time to put a stop to such discussions. It is time to get help.
The experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, understand how both the informal and formal ethics/medical futility processes work at hospitals. We also understand and advocate for the rights of patients and their families. For a free consultation about your potential case, call us at 281-580-8800.
Developments in Texas Advance Directives
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Robert Painter is a medical malpractice and wrongful death attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former editor in chief of The Houston Lawyer magazine, and serves on the editorial board of the Texas Bar Journal. Attorney Robert Painter is a frequent writer and speaker on the Advance Directives Act of 1999, and medical futility/ethics proceedings.