On this New Year’s Day 2019, Hawaii became the latest state to have an assisted-death or assisted-suicide law active and on the books.
The controversial “Our Care, Our Choice Act” allows Hawaii residents with a medical prognosis of six months or less to live to request a prescription for lethal medications to cause their death. To take advantage of this un-Aloha death law, patients must meet these requirements:
· An adult resident of Hawaii.
· Prognosis of no more than six months to live.
· Able to take the medications on their own.
· Must make two oral requests for assisted death at least 20 days apart.
· Must make one written request for assisted death signed by two witnesses.
· Two physicians licensed in Hawaii must agree—one prescribes the medication and one consults on the request.
· Must fill out a final attestation form within 48 hours of taking the drugs, confirming the intent to take medication.
Under the law, the patient has the right to withdraw the request at any time or decide not to ingest the medications.
The Texas approach
Although Texas law doesn’t have an assisted-death statute, its Advance Directives Act of 1999 has some provisions that I think are even more alarming.
While Hawaii and other states with an assisted-death allow patients to make the choice on when to end their lives, Texas gives that authority to a hospital committee. Even worse, the hospital committee is protected by complete immunity from criminal prosecution, licensure complaints, and civil liability for abusing this jaw-dropping authority.
Under Texas law, the magic words are “medical futility.” If a hospital committee (often called an “ethics committee”) decides that providing further care to a patient is medically futile, then it can order an end to curative health care, food, and hydration for the patient. The order takes effect 10 days after the committee reaches a decision.
The statute doesn’t define “medically futile,” so it’s all in the eye of the beholder (the committee). There’s no requirement, for example, that patients have a terminal condition. In my experience, these committees are stacked with hospital employees and physicians on the hospital medical staff. They typically “rubber stamp” any request to pull the plug.
The procedural protections for patients are limited and include:
· The hospital committee must give the patient or family at least 48 hours’ notice before the meeting.
· The patient and family members may attend the meeting, but there’s no right for the patient to have an attorney present.
· The committee must provide a written copy of the decision to the patient.
· The patient or family has a limited right to appeal the committee decision to a state court. The court, though, only has authority to extend the 10-day deadline for stopping treatment, food, and hydration if the patient can show that with additional time another facility would likely accept the patient for ongoing treatment.
I have handled a lot of these cases for patients and families and have seen how hospitals can abuse the law. I’ve personally represented patients and families in cases where this law was used by hospitals to try and end care involving a teenager, a man in his 20s, an elderly lady who was awake and talking to me, and patients with excellent health insurance benefits. It can happen to anyone!
Although it’s hard to know for sure what motivates the decision-making of individual members of a hospital committee, I’ve also observed that this procedure gets invoked frequently when I think medical malpractice caused a permanent brain injury or other life-changing injury. Could it be that the hospital committees are seeking to cut their losses by taking advantage of Texas tort reform caps that would pretty much limit hospital liability if the patient died?
What you can do
The best time to plan ahead is now. I’ve found that two estate-planning documents, in particular, pack a powerful punch in terms of convincing physicians and healthcare providers to do the right thing. I think most doctors and nurses want to do the right thing, but when they don’t know what a patient would want, they’ll often substitute their personal opinions for that of the patient.
Consult an attorney for assistance in preparing an advance directive that gives instructions to your doctor about the type of treatment you want to receive in an end-of-life situation.
An attorney can also help you in preparing a medical power of attorney, which gives a person of your choosing the right to make medical decision on your behalf, when you’re not able to do so.
We are here to help
Do you need a will, advance directive, or medical power of attorney? Or have you or a loved one been seriously injured because of a medical error? If so, the experienced attorneys at Painter Law Firm are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
For medical malpractice matters, all consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
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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. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
