I have followed with profound sadness the story Alfie Evans, a British toddler whose family is fighting hospital administrators, doctors, and British courts to keep him alive.
In my experience as a Houston, Texas medical malpractice attorney, Alfie’s story is different from what I typically see in Texas cases, yet there are some profound similarities that should cause grave concern for Texans. Both in Texas and Great Britain, the fight is over a question called medical futility. More precisely, who decides when all hope is lost and to end curative treatment, food, and water for a patient.
In Alfie’s case, the British doctors have been unable to determine what is wrong with him, yet the hospital and doctors have given up on him and decided that he should be allowed to die with dignity.
On the family side of the question, Alfie’s parents have requested that their son be discharged from the British hospital that does not want to care for him. They would then take him to any of several other hospitals in other countries that have offered to accept them as a patient and try to help them get better. Just this week, the Italian government granted Alfie citizenship and Pope Francis offered to arrange care for him at a Vatican hospital.
Yet, the British hospital refused and the Family Division of the High Court in Manchester backed it up, finding that Alfie was too ill to travel to Rome for treatment. The British Court of Appeal rejected the family’s request to overturn the Manchester court’s ruling.
In the middle of all this, the hospital and doctors recently took Alfie off life support. His healthcare providers are amazed that, days later, Alfie is still alive. To me, this underscores the fact that they do not understand the cause of his medical condition and should let someone else step in and take over his care.
This could happen in Texas
I imagine a lot of people who have seen some of the media coverage of Alfie’s story think that this could not happen in America. In Texas, at least, that is absolutely untrue.
The Texas Advance Directives Act of 1999 gives hospitals the right to form a committee—often called an ethics or medical futility committee—to overrule patient and family desires when it comes to continuing curative treatment, as well as food and water for a patient. To make it even more one-cited against patients and families, any decision made by such a hospital committee is protected by complete immunity from criminal prosecution, administrative licensure review, and civil liability.
From a due process standpoint, the law has few protections on the patient side.
The committee can be convened with 48 hours notice. This, of course, means that notice could be given on a Friday for a Monday meeting. You may think that such limited notice could interfere with the patient’s ability to find an attorney. While that is true, the law does not give the patient or family a right to have an attorney present for the meeting. Similarly, the Advance Directives Act allows a hospital to stack committee membership with hospital employees and doctors on its own medical staff.
If the hospital committee decides to rubber-stamp a request to end care, which, in my experience, it almost always does, then the patient and family have 10 days to find a facility that will accept the transfer of the patient. If they are unsuccessful, then the hospital and physicians can end all curative care, as well as the provision of food and water to the patient, with absolute immunity.
The statute does afford a very narrow means for judicial review. The patient, or someone acting for the patient, can ask a court to step in and grant additional time. The law is specific, though, that a judge may only do so if the evidence establishes that the additional time would allow securing a new hospital or facility to accept transfer and care of the patient.
Beyond the Advance Directives Act, some hospitals use other legal maneuvers to promote health care providers authority over family decisions concerning patient care. In the past, hospitals in the Memorial Hermann system in the Houston area have gone to court to seek a guardianship that would give them the legal authority to consent to termination of patient care. In my experience, such hospitals have done so when they could not convince family members to give this permission.
Click here to listen to the shocking voicemail that Memorial Hermann Northwest Hospital’s director of case management left for a family member, threatening a guardianship proceeding.
We are here to help
I have handled a lot of cases for Texas patients and families confronted with hostile hospitals and doctors who want to terminate care. In some, but not all, of those cases, I believe that the healthcare providers were motivated to end patient lives to cover up medical malpractice.
If you or someone you love has been seriously injured because of poor healthcare, our experienced medical negligence attorneys can help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
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Robert Painter is a 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 against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. In 2017, H Texas magazine named him one of Houston’s top lawyers. Also in 2017, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.