Many Texans are shocked when they learn about the one-sided powers given to doctors and hospitals by the Texas Advance Directives Act of 1999, which we will refer to here simply as “the statute.” Although, as the title of the legislation suggests, it was originally enacted to provide health care providers, patients, and families a procedure for handling end of life care requests and directives, in reality it makes Texas one of only two states to give doctors and hospitals very liberal power to override the wishes of patients and their families. In many cases, hospitals and doctors have used the statute to terminate a patient’s life, despite disagreement of family members.
- Preventive Medicine
- Health Care Provider Threats
- The Ethics Committee Proceeding
- What Happens After an Adverse Ethics Committee Decision
- Real-Life Examples
- Be Aware and Be Prepared
Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.” I am sure he would have never thought that, by the 21st century, patients and their families would be well-advised to obtain an “ounce of prevention” before seeking health care, but that is exactly what you should consider to reduce the risk that you will be victimized by the health care providers who you entrust to take care of you.
Start by executing an advance directive. Under Section 166.031 of the statute, a directive is an “instruction . . . to administer, withhold or withdraw life-sustaining treatment in the event of a terminal or irreversible condition.” You are probably already wondering, “Who makes the determination of whether or not you have a terminal or irreversible condition?” Unfortunately, the treating doctors and hospital have the final say, and can, in fact, trump both the patient and his or her family’s wishes, if they want to push it that far—but we will address that more later.
Your best bet for having health care providers respect your wishes concerning treatment, resuscitation and nutrition is to sign a properly-prepared advance directive, and to designate a health care agent, in a separate document called a medical power of attorney. These documents work hand in hand to maximize the chance that you will receive the care you want, for two reasons. First of all, when a patient has completed a proper advance directive, it leaves no doubt to family members and health care providers about what he or she wants done. Second, it empowers your designated health care agent to advocate and, if need be, fight for the care you desire.
Painter Law Firm highly recommends that you seek counseling from one of our attorneys, or another attorney of your choosing, who has experience in health care law, before completing or signing these documents, to make sure you completely understand the legal implications of your requests. With that said, Texas Right to Life has prepared an excellent paper and “will to live” form that includes a detailed advance directive. Further, Sections 166.163-166.164 of the Texas statute prescribe a standard form for a medical power of attorney.
Now we will consider the scenario when there is the first hint of disagreement between a family and the health care providers. In my practice, I have seen dozens of cases in which patients and their families want hospitals and physicians to continue providing life-sustaining care, treatment, and nutrition, but they receive resistance, or downright hostility, from their health care providers.
In my experience, there is a very predictable sequence of events that occurs in these cases. I feel compelled to emphasize that this could happen to any one of us—I have seen cases involving patients with insurance and without insurance, and from a variety of races and educational backgrounds.
The sequence of events usually starts when the patient’s condition has deteriorated, which can be from a variety of reasons, including medical malpractice, birth-related medical conditions, health issues affecting the elderly, or even acute illnesses afflicting a patient of any age.
Behind the scenes, on or more doctors, nurses, or hospital administrators decide that providing further life-sustaining care, treatment, and nutrition for a patient should be discontinued, which in almost all cases means the patient would die. It is impossible to know the true motivations underlying such decisions by the doctors and hospitals—they could be good (like a genuine belief that the decision is in the best interest of the patient) or bad (like to cover up malpractice)—but what usually happens next is there is an effort to convince the patient or health care agent to go along with terminating care.
Most often, this step starts when a doctor, nurse, case manager, or administrator suggests that the health care agent or decision-maker (“health care agent”) sign a do not resuscitate (DNR) order for the patient. If the health care agent refuses, a series of escalating conversations usually follow, in which the health care providers assert things like “your loved one is brain dead,” “he has no brain activity,” “if she recovers, she will be a vegetable,” “he would not want to live like this,” or “do not be selfish, and you need to let go.”
This is where it is useful to have the preventive documents, the advance directive and medical power attorney, which we discussed above. Together these documents are very effective tools to fight back against these efforts. First of all, they show who the decision-maker is—the person is clearly and legally defined in the medical power of attorney. Second, the advance directive allows the patient’s voice to be clearly heard over the speculation by health care providers (who usually do not even know the patient) as to what the patient would want to happen.
Once they have decided that it is best to let a patient die, hospitals and physicians almost always are very persistent. When the health care agent does not agree to their requests, I have frequently seen cases where some hospitals and doctors try to turn family members against each other. In other words, the hospitals and physicians try to enlist the support of family members to convince the health care agent to sign a DNR, or to consent to end curative care, treatment, and nutrition. This insidious tactic shows how some providers prey on families in times of need and anguish—and why it is best to enter the hospital prepared.
Although I see this a lot, it still surprises me. After all, Section 1177 of a federal law abbreviated “HIPAA” makes it a criminal offense to disclose to another person (including family members) “individually identifiable health care information” about a patient, without consent.
When I have confronted hospitals and physicians about their disclosure of confidential health care information to family members in an effort to get them to pressure the health care agent, the impermissible conversations quickly stop. I have seen some hospital attorneys, however, argue that the patient or health care agent waived the HIPAA privacy protections by, on prior occasions, allowing family members to participate in or listen to conversations with health care providers.
I believe this is a weak legal position, but think about the practical implications—this would mean that any time the health care agent speaks to a physician with a family member present, then the HIPAA protections would be waived. To avoid this argument being used against you, I recommend one of two approaches for health care agents: (1) do not allow family members to participate in your conversations with health care providers; or (2) if you want a family member to participate in a conversation with a health care provider, make it clear at the outset that you only consent to disclosure for that one conversation.
When attempts to turn family members against each other do not work, health care providers will threaten to send the matter to a hospital committee, usually called an ethics or futility review committee, which can override the patient and his or her family.
Section 166.046 of the statute defines a procedure by which a hospital ethics committee may override the patient or health care agent’s will, and terminate life-sustained treatment, which includes even providing food and water. In my opinion, this section of the law was so poorly thought out that the Texas Legislature and then-Governor George W. Bush unintentionally created a recipe for abuse, which some hospitals and physicians have followed. The statute has no reporting requirement, so it is impossible to say how many patient lives have been ended as a result of this bad law.
Officially, according to Section 166.046(a) of the statute, an ethics committee review is triggered when “an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient.” In my experience, the process usually does not start this way; instead, a hospital administrator makes the suggestion (or, in some cases, makes the demand) to begin the futility review. In 2009, one of my clients, the health care agent for her father, told me that the attending physician confided in her that the hospital administration and other physicians were twisting her arm, demanding that she refer the case to the ethics committee, and threatening her ability to practice at the hospital.
Under the law, the attending physician may not be a member of the ethics committee. Instead, the committee is made up of the attending physician’s colleagues, including other physicians with staff privileges at the hospital, and, usually, nurses and administrators of the hospital.
Most patients or health care agents, and their families, are taken by surprise and first become aware of the futility review or ethics committee process when they are threatened with it by a health care provider or hospital administrator, or when they receive notice of the ethics committee meeting 48 hours in advance. In my experience, before an ethics committee meeting is called, there has already been a great deal of back-room lobbying of committee members, and even an informal poll of the members to see if there is support to terminate life-saving treatment. In one case I handled, Memorial Hermann Children’s Hospital documented this polling in the patient’s medical records. (Read about this patient’s story).
When the ethics committee process is invoked, the statute requires: (1) 48 hours notice (it does not state that it must be written) of the committee review process before the meeting is called to order; (2) a copy of the statement regarding options for transfer of the patient to another facility or physician, as described in Section 166.052 of the statute; and (3) a copy of the registry list of health care providers and referral groups maintained on the Texas Health Care Information Council website.
The health care agent is entitled to attend the meeting and receive a written explanation of the ethics committee’s decision. Think of how the cards are stacked at the actual meeting. As already mentioned, there often has already been an informal poll of the likely outcome. The attending physician and other health care providers who work at the hospital present their case to their colleagues that they work with on a daily basis. The patient’s health care agent and the family, who most often have no medical or legal background and usually have never met the committee members before, but are given just 48 hours, under the statute, to come up with a case and argument to present to the ethics committee.
Because of the lack of state-required reporting of the outcomes of these ethics committee proceedings, it is impossible for anyone to provide good data. In my experience, though, the ethics committees are prone to rubber stamp their colleagues’ requests.
If the ethics committee issues a decision to terminate life-saving treatment, Section 166.046(e) of the statute requires that the health care providers must wait 10 days after the written ethics committee decision is provided to the patient or health care agent before terminating all life-sustaining treatment. During that 10 day period, Section 1660.046(d) requires the attending physician and the hospital personnel to assist in arranging the patient’s transfer to another physician or facility. The patient is responsible for the cost of the transfer.
Again, imagine facing the challenge of having to find another facility to accept your loved one within 10 days, or treatment will end and he or she will almost certainly die. Fortunately, organizations like Texas Right to Life are available to offer families free services to help find placement of their loved ones under these circumstances. It is unrealistic to think that the very providers who advocated ending the patient’s life, through the futility process will instantly morph into a Good Samaritan, eager to assist the family with a transfer. It is not surprising that quite often this does not happen.
Realistically, though, 10 days is not a long time to transfer a patient, particularly if the patient has a lot of care needs, which is often the case. If you are up against the clock and it looks like you are not going to make it, the statute offers only one option to obtain more time. Section 166.046(g) allows a patient or health care agent to file a lawsuit in an appropriate district or county court, and states that the court “shall extend the time period . . . only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient’s directive will be found if the time extension is granted.”
To be clear, the only statutory authority a court has to extend the 10-day period is if the patient or his or her family can show that, more likely than not, a new treating physician or facility can be found with more time. Therefore, at this stage, it is a waste of time to focus on discussing the moral, ethical, or religious reasons why you disagree with the ethics committee’s decision. Your singular focus should be on finding alternate facilities, and do not depend on the hospital or your physician for help.
The legal standard for the court is “preponderance of the evidence,” which is a relatively liberal standard—a slight nudge in one direction, or say a 51 percent likelihood that a transfer could be achieved with more time. If you find any facility that shows a willingness to accept the patient, get a letter from the facility, and the court should order extra time. The next best thing is if a facility states that it will likely accept the patient, but needs time for a medical issue to resolve, to make arrangements, or some other legitimate reason.
As discussed with some real case examples, below, the courthouse options, of seeking a temporary restraining order, injunction, or even taking the case to trial, under current Texas law, only provide you with an opportunity to obtain more time to find a transfer for the patient. Thus, if you are facing one of these proceedings, I urge you to “keep your eye on the ball”—finding a suitable place to accept your loved one.
I believe that there are many cases that never go to court and that we will never hear about, because of manipulation that goes on at hospitals. Let me illustrate a case I handled involving a hospital in Nacogdoches, Texas.
In the Nacogdoches case, the family was pulled from the waiting room, with no notice, into a conference room where about 10 hospital employees or health care providers were sitting. They were told that it was an ethics committee meeting, and were urged to authorize discontinuation of treatment for their teenage son, and to make a decision quickly. During the meeting, they were not told that a DNR order was already in place or provided any formal notice, but were given some sheets of paper explaining the futility review process.
That night, the family read the papers and were shocked to read that, with 10 days notice, the hospital could end treatment, food, and water. The parents approached a hospital administrator the next day who verified that the 10-day period had started the previous evening. I received a frantic call and traveled to Nacogdoches the next day, and spoke with a member of the ethics committee who told me that there had not been a futility review and that the 10-day period had not started. The family spoke with the administrator later that day, who verified the same thing. Isn’t it easy, though, to see how this poor family was confused, when they were given futility review paperwork and then the health care providers told them something that was apparently untrue.
In another case, this one involving Memorial Hermann Northwest Hospital, in Houston, Texas, a case worker called a patient’s son and threatened to send his father “on to glory.” You can hear the audio of that voicemail message here.
In my opinion, in cases like this, the goal of the hospital and physicians is to convey a sense of futility to the family—that is, it is futile to resist the providers, so they might as well give up.
In early 2009, I handled a futility case against Memorial Hermann Memorial City Hospital (“Memorial”), in Houston, Texas. In that case, one of my clients, Kelly Davis, was the health care agent for her father, Maurice Davis. You can view a copy of our original petition, which includes as exhibits copies of the hospital’s ethics committee decision and other materials.
This case provides a good example of why you should be careful about how much you communicate with the hospital and physician about potential transfer facilities—even though the statute requires them to assist in a transfer. According to Ms. Davis, she contacted some facilities who expressed interest in accepting her father, but after she informed the Memorial case worker, the leads suddenly dried up. Ms. Davis said officials with three facilities told her that Memorial urged them not to accept her father as a patient. One facility administrator told me, point blank, that Memorial’s case manager was “tricky” and manipulative. That facility administrator told me that she instructed her staff to not speak to anyone at Memorial regarding this patient, and to refer all calls directly to her.
As a matter of practice, I always try to work out an extension of time directly with the hospital administration before filing a lawsuit. In this case, Memorial granted an extension of a few days, but decided against any additional time. I informed the Memorial administrator that, the next morning, I would file a lawsuit and seek a temporary restraining order.
The next morning, I filed the suit, and shortly thereafter appeared before the ancillary judge on duty at that time, Tracy Christopher, Judge of the 295th District Court, for consideration of my request for a temporary restraining order (TRO). At the TRO hearing, Memorial sent two attorneys, as well as a case manager, administrator, and nurse manager.
Memorial has a long-standing relationship with the lead attorney who appeared on its behalf, Craig Smyser, of the firm Smyser Kaplan & Veselka, LLP. Mr. Smyser is a distinguished lawyer whose firm has contributed to Planned Parenthood, and who has handled some significant cases for the pro-abortion cause.
During the TRO hearing in the Davis case, Craig Smyser essentially argued the same points that Memorial’s own committee had decided—that the patient’s condition was highly unlikely to improve and that there was no facility that was willing to accept the patient. Mr. Smyser seemed surprised, and the Memorial representatives appeared shocked, when I showed the judge a letter from a facility administrator that she was willing to accept the patient, pending a resolution of a few issues. Judge Christopher signed an order granting our request for a TRO, which you can view here.
In the futility context, a TRO is an order from a judge preventing the hospital or any physician with privileges at the hospital from carrying out the futility decision, including withholding health care and treatment, and nutrition. Under Texas Rule of Civil Procedure 680, a TRO may be in place for a maximum of 14 days, during which time it preserves the status quo. Simultaneous with entry of the TRO, the judge will set an oral hearing for a temporary injunction (TI). Rule 680 also allows only one extension of the 14-day period, unless the parties agree. If the judge grants the TI, it will likely stay in place until the case goes to trial.
In my experience, once hospitals have “pulled the trigger” on a futility decision, they continue to fight aggressively every step of the way. The Davis case was no exception. Shortly after the TRO hearing, one of the Memorial attorneys informed me that they were sending a photographer to take photographs of my hospitalized client. I objected and made it clear that we did not consent to any photography, unless the family and a representative from my office was present. We scheduled a date and time, and the photography proceeded, in the presence of a representative from my office, family members, and a Memorial group consisting of an attorney, hospital administrators and a photographer. As a preventive measure, the health care agent should make sure that the medical records reflect a lack of consent for any photographs being taken outside his or her presence and without written consent. It is important to make sure that any video or photos taken show proper context. In other words, you do not want to allow the hospital or its attorneys the opportunity to portray the patient as in a worse condition that he or she truly is.
In the Davis case, we successfully arranged transfer on the morning of the TI hearing. We arrived at the courthouse and met the same battalion of Memorial lawyers and representatives, who were again ready and prepared for battle, this time to have the court deny the temporary injunction, so Memorial and the physicians could end Mr. Davis’s care. Fortunately, that was unnecessary.
Before a hospital admission, both patients and family members need to be aware of the serious risks allowed under Texas law. Before an admission, have your documents in order and make sure your family knows your wishes. It is also crucial to understand that, when it comes to surviving hospitals, it may be necessary to get outside help, or even a court order.