Of all of the bad laws in Texas for healthcare consumers, in my book one of them is the absolute worst. It’s the Advanced Directives Act of 1999, which became law with wide support across the ideological spectrum.
Even the title below is a bit misleading. While it’s true that some of the text deals with the important topics of advanced directives—decisions patients make about how they want their healthcare managed in the available incapacity—the law also literally guts patient autonomy.
Many patient advocates believe that it would be better to call the law referred to as the “10 Day Law.” The reason is that this statute allows a hospital to convene a medical ethics committee that can override the decision of the patient, family member, or surrogate decision-maker on when to end care.
Patients and families are afforded 48 hours’ notice before the committee meeting. If the committee votes to end treatment, and often the die is cast before the meeting, then the patient and family only gets 10 days to find a new facility to accept the patient before the hospital can terminate care. And that usually leads to a prompt termination of the patient’s life.
On top of all this, the law gives all the cards to the hospital when it comes to making end-of-life decisions. It does so by creating a system of immunity—from civil lawsuits, criminal charges, any relation to review—with limited due process.
As a lawyer, I would like to think about the economic implications of the law. Good laws place economic incentives in the right direction. Bad ones, like the 10 Day Law do not.
By giving hospitals and healthcare providers who follow this procedure complete immunity, it provides an incentive in cases of medical malpractice to misuse the process. After all, a deceased patient’s family often will have a much smaller claim than a catastrophically injured patient who required significant ongoing care.
Based on my experience, I’m convinced that I’ve seen this happen on more than one occasion. I’ve seen some shocking, shady practices by Texas hospitals. To become more familiar with what commonly happens when the 10 Day Law is invoked, visit our companion site, www.survivinghospitals.com, which we created as a reference for the Texas legislature when I offered testimony on this important issue.
Today, I was a speaker and a continuing legal education (CLE) sponsored by the most prominent of patient advocates on this issue, Texas Right to Life. They this nonprofit organization has been aggressive in pursuing due process claims on behalf of patients and their families.
In a 2020 case that they pursued, the Fort Worth Court of Appeals held that the hospital committee was acting under a delegation of sovereign authority. That means that hospital committees must follow constitutional requirements of not depriving any person of life or liberty without due process. This includes the right to have counsel present at the committee meeting. That significant case is styled T.L. v. Cook Children’s Hospital, No. 02-20-00002-CV, Fort Worth Court of Appeals. You can read the decision here.
