I’m heading to Austin today to testify in front of a Texas Senate committee about proposed amendments to Texas Health & Safety Code Section 166.046, the Texas Advance Directives Act. On its face, the law sounds pretty patient-friendly. Nothing could be further from the truth.
Over the years, I’ve helped numerous patients and families who are threatened by cold, callous hospital committees who are empowered under the Advance Directives Act. I remember all of their stories, but one immediately comes to mind today. The family of a lady in her early 60s asked me to represent them at an ethics committee meeting being called by the hospital in midtown Houston.
Under Texas law, a hospital can form a committee that can consider questions of medical futility. Medical futility is a doctrine of medicine, law, religion, and ethics that considers whether additional medical treatment for a patient is appropriate. The committee can go by any name, but they are typically called an ethics committee or medical futility committee.
On a side note, the activities, documents, and proceedings of any properly-organized hospital committee is protected by the broad Texas hospital committee privilege. Except under extremely narrow circumstances, the privilege keeps the documents, information, and many decisions of committees secret and under lock and key.
Back to my client’s story.
Like all ethics committee meetings of this nature, the sole issue on the agenda was medical futility. I suspect that it all started with a hospital administrator’s (bean-counter) decision that they didn’t want to treat this patient anymore. In my experience as a Houston, Texas medical malpractice attorney, that’s usually what happens. The hospital committee was prepared to take advantage of this unusual Texas law to stop treating, feeding, or hydrating the patient, which would, of course, lead to her death.
I’ll never forget what happened when I arrived to the hospital about an hour before the scheduled start time of the committee meeting. A family member brought me to the patient’s room. When I walked in, I saw her sitting up in a hospital bed. She smiled and greeted me and we talked for about half an hour. You read that correctly—this hospital ethics committee was ready to end a patient’s life who is awake, coherent, and talking.
There’s nothing ethical about an ethics committee behaving this way. But, the truth is, Texas law in this area is the worst in the nation and allows this type of abuse. Everyone who’s treated at hospital is at risk. The statute makes no distinction between someone old or young, male or female, insured or indigent, or acutely or chronically ill.
The Advance Directives Act actually has very few requirements that hospitals have to follow. In exchange, hospitals and committee members are given the broadest grant of protections I’ve ever seen under any law anywhere—criminal immunity and protection from civil liability or even administrative or licensure review. This would even be true and circumstances of clear medical malpractice where a hospital was selfishly trying to orchestrate a cover-up and take advantage of tort reform caps by hastening a patient’s death.
The hospital committee must give the patient and/or person responsible for the patient’s health care decision 48 hours’ notice of the meeting. The committee can be stacked—and usually is—with hospital employees and members of the hospital medical staff. The statute allows the patient or healthcare agent to attend the meeting, but doesn’t give the right to have counsel present. You can rest 100% sure, though, that the hospital will have an attorney there.
The law doesn’t require anything in particular to happen at the committee. If the committee does the typical thing and rubber-stamps the initial request to stop life-sustaining care, then the committee is required to issue written notification to the patient that curative care will end in 10 days, unless a transfer facility is located that will accept the patient.
In my experience, once hospitals pull the trigger on the medical futility pathway, they are cooperative with patients and family members in terms of locating a transfer facility. I’ve seen cases where the primary hospital staff has discouraged the transfer hospital from accepting the patient at all.
If the 10-day period expires without a transfer secured, then the hospital and physicians can stop life-sustaining treatment, including dialysis and ventilator support, with total immunity. They can do this over the objection of the patient, healthcare agent, and family. Texas law tilts the deck that far in favor of hospitals.
I’ve been retained to represent patients and families both before hospital committee actions and after a 10-day notice letter has been issued. Once the letter has gone out, there’s really only one legal option available to the patient and it’s difficult to achieve in 10 days.
The law allows the patient to file an application for a temporary restraining order and injunctive relief with an appropriate court. The trial court, though, can only extend the 10-day period if there’s evidence that additional time would allow the patient or family to secure a transfer facility to accept the patient.
These hearings can be interesting. I filed an application for injunctive relief to get a client extra time in a Memorial Hermann medical futility matter several years ago. I informed the court that with additional time we believe that we would be able to have the patient transferred to a certain facility. The attorney for the hospital jumped up and said that was patently false. The judge picked up the phone from the bench and called the transfer facility administrator who backed up everything I had said.
The legislation that I’m supporting in my testimony before the Senate committee today would protect patient rights by repealing the 10-day provision to allow basic life-sustaining treatment to continue until the patient can be transferred to a more appropriate care setting or another physician who will honor the patient’s medical decisions regarding life and death. Some people call this the “treatment-pending-transfer” policy.
I’ll post another article when there are updates from Austin on this important law.
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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.
