I’ve written on several occasions about how inhumane the Texas Advance Directives Act is for families. The law itself is draconian, particularly considering the timing when it’s often raised by hospitals and their risk managers and doctors—when they’re wanting to force an end-of-life decision on a patient or family members.
This statute is codified at Texas Health & Safety Code Chapter 166. Here are some of the key points:
• With 48 hours’ notice, the hospital can convene a committee meeting to determine whether further medical care and treatment is medically futile. The committee is often called an ethics or medical futility committee.
• The statute doesn’t define medical futility. It also doesn’t require avoiding conflict of interest on the committee membership. That’s why they are typically stacked with employees and friends of the hospital and physicians.
• The patient or family is not guaranteed the right to legal representation at the committee proceeding.
• If the committee determines that further care is medically futile, with just 10 days’ notice it can override the wishes of the patient or family and terminate all curative care.
• I’ve called these committees death panels because Texas law gives them authority over making life and death decisions with complete immunity from civil liability, criminal prosecution, or even licensure or administrative review.
• There is no prohibition of a hospital committee action terminating care after medical malpractice that occurred at the same facility. Unfortunately, this ties into Texas tort reform measures to create a perverse financial incentive for hospitals to stop treating their own victims of medical malpractice. It’s impossible to say how often, if at all, this occurs. I have my own suspicions. It’s also impossible to say, though, that the financial incentive is not there.
Recently, some hospitals have decided to ditch the Advance Directive Act medical futility procedure in favor of going straight to the plug. Pulling the plug, I mean.
That’s precisely what happened in a pending case that was filed on September 30, 2020, in Houston, Harris County, Texas. The case is styled Mario Torres v. Texas Children’s Hospital; Cause No. 2020-61396, In the 234th District Court.
The background facts of the case are simply tragic. Around September 24, 2020, a 10-month-old infant was found unconscious in a bathroom tub. He was rushed to Texas Children’s Hospital in The Woodlands, where he was admitted to the pediatric intensive care unit.
He was transferred to the main campus of Texas Children’s Hospital in Houston’s Texas Medical Center.
According to the petition, after six short days, the hospital and its physicians informed the infant’s parents that there was nothing else to be done and he needed disconnected from all life-support systems. The parents pushed back and wondered what the rush was given that, according to petition, the little boy’s heart was beating on its own and stable and there was no fluid on the lungs.
The lawsuit petition states several reasons why it would be understandable for parents of a hospitalized child to be suspicious of the motives of Texas Children’s Hospital and its medical staff. Here are two red flags:
• The hospital refused to provide the parents with any of their little boy’s medical records or even show them copies of them.
• The communication white board outside the infant room is blank, keeping them in the dark about the details of treatment.
At the trial court level, the parents asked the court to grant a temporary injunction preventing Texas Children’s Hospital from discontinuing care. The hospital filed a response to the parents’ application for temporary injunction argued that, in this infant’s case, it wasn’t required to follow the ethics medical futility committee process of the Advance Directive’s Act. The hospital urged:
“That statutory review process . . . Applies only to the removal of life-sustaining treatment. Based on the express and unambiguous language of that statute and the undisputed facts of this case, the statutory review process does not—indeed, cannot—apply to an individual like [this infant] who is already dead and for whom the removal of life-sustaining treatment is therefore moot.”
Once the trial court denied the application for temporary injunction, the parents took it up on an accelerated interlocutory appeal, where it’s now pending in Houston’s Fourteenth Court of Appeals (Case No. 14-20-00682-CV). On October 5, 2020, the appellate court entered an order that, from the facts stated in the motion, the rights of the parents and child “will be prejudiced and less immediate temporary relief is granted.” As a result, the court ordered treatment to continue until it makes its decision.
End-of-life cases, whether for infant or senior patients, are heart wrenching and distressing to patients and their families. While there are certainly cases where a family has a tough time coping with the fact that their loved one has already passed away, I’ve seen many others where hospitals and doctors were in a suspicious hurry terminate care.
If you find yourself in this position, it’s a good idea to contact an experienced, top-rated Houston, Texas medical malpractice lawyer with experience in handling medical futility and related cases.
