Monday, August 11, 2008

New Defense of the Texas Advance Directives Act

While law professor Nora O'Callaghan's recent articles in Baylor Law Review and Health Matrix attack the fairness and constitutionality, a student comment defends the Texas Advance Directive Act: John M. Zerwas, Jr., Medical Futility in Texas: Handling “Reverse Right-to-Die” Obstacles without Constitutional Violation, 43 Tulsa Law Review 169 (2008). I intended to blog about this article weeks ago when the latest issue of the Tulsa Law Review was published, but there was an unusually long delay between print publication and online availability.

Here is the article's introduction:

Sun Hudson was born on September 25, 2004, in Houston, Texas. By September 26, the newborn laid connected to a ventilator at the neonatal intensive care unit of Texas Children's Hospital, struggling to hold on to the life he was just given.

Sun was born with thanatophoric dysplasia, a type of neonatal dwarfism. While this fatal condition causes serious mental and physical ailments, what ultimately causes death is a dangerously narrow chest cavity that restricts the newborn's breathing capabilities. In the following November, the hospital decided that Sun's condition was futile, and that “allowing Sun to die naturally was medically appropriate and the most ethical course of treatment for the tragic situation.” In the view of the treating physicians, continuing to provide care to the baby would only increase his pain and agony. Sun's mother, Wanda, did not consent to withdrawing life support from her newborn baby, believing that he would survive.

The hospital notified Wanda in writing, on November 18, that it would end treatment of her son in ten days, unless she was able to find another health care facility willing to continue life support. Wanda immediately sued Texas Children's, asking the court to compel the hospital to continue treatment. After five months of litigation, the probate court ruled in favor of the hospital, holding that “there was no reasonable expectation that another health care provider would agree to continue treatment if time were further extended.” On March 15, the day after the court's ruling, the hospital withdrew Sun's life support and “a few breaths later” he died in Wanda's arms.

Wanda alleged that the hospital made a devastating mistake, and that when it came to her son, the physicians simply quit after six months. According to bioethical experts, the child's death marked the first time an American court has allowed a health care facility to end a baby's life support against the wishes of a parent.

The Sun Hudson case is one of several cases that have sparked a recent controversy over the Texas Advance Directives Act (Act), specifically the subsection of the statute commonly referred to as the “Futile Care Law.” This Act, signed by then-Governor George W. Bush in 1999, lays out the steps that are to be followed when it has been decided that a patient will not recover, and physicians and families disagree over continued health care measures. With this statute, “Texas [became] the first state to adopt a law regulating end-of-life decisions, providing a legislatively sanctioned, extrajudicial, due process mechanism for resolving medical futility disputes and other end-of-life ethical disagreements.”

The Act permits a health care provider to discontinue life-sustaining treatment against the wishes of the patient, the patient's guardian, or the person responsible for the health care decisions of the patient (for instance, the patient's family). Subsection 166.046(a) of the Act allows an “ethics or medical committee” to hear cases where a treating doctor refuses to adhere to a patient's advance directive or a health care decision made on behalf of a patient by a family member or other appropriate decision-maker. Advance directives, also known as “living wills” or “directives to physicians,” are “document[s] that [take] effect upon one's incompetency and [designate] a surrogate decision-maker for healthcare matters,” or “[explain] one's wishes about medical treatment if one becomes incompetent or unable to communicate.”

In Texas, patients have the ability to make medical treatment decisions via advance directives through other sections of Chapter 166 of the State's Health and Safety Code. A patient can tell his medical care provider to continue or end treatment in circumstances where he is suffering from a terminal ailment from which he anticipates to die soon, even with available life support measures. An advance directive can also instruct a physician to continue care after a patient is unable to make decisions concerning his or her health care. An advance directive to continue treatment, however, can put physicians in a position of continuing life support care that no longer has an effect. If the Act's guidelines are followed, the Act creates a legal safe harbor for health care providers by giving immunity from any liability, civil or criminal, that may result from withdrawing life-sustaining treatment of a futile patient.

The Act's guidelines state that the patient's attending physician cannot be a member of the hospital's ethics or medical committee reviewing the particular case. The patient or family must receive forty-eight hours notice of the committee review process, and be allowed to attend and participate. The committee must provide the patient or family a written report describing the decision and findings reached in the review process. If the ethics or medical committee review process fails to resolve the dispute between the physician and the patient or family, the health care provider must “make a reasonable effort to transfer the patient to [another health care provider] who is willing to comply with the directive.”If no such provider is found within ten days after the day in which the patient or family received the written report from the committee, the physician and hospital may withdraw the medical treatment that has been deemed futile. The “appropriate district or county court shall extend the [ten-day 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.” Had Wanda Hudson shown the court that it was more likely than not that she would be able to find another health care provider willing to continue treatment for Sun, the baby would have been kept alive for an extended amount of time.

History has proven that the term “medical futility” is virtually impossible to define. [Therefore, other states should consider codifying a concrete futile care policy, as Texas did, in order to limit the dangers of inconsistency and confusion among the United States' jurisdictions. Criticism of the Act, however, alleges that it violates the United States Constitution, therefore implying that the Act should not exist, as is, in Texas or anywhere else in the country. The Texas Advance Directives Act is a law that fits within the bounds of the Constitution and established American common law principles. A constitutional challenge to the Act would fail.

Part II of this article will discuss in detail the controversial, and oftentimes confusing, history of medical futility, which ultimately led to the implementation of the Texas Advance Directives Act of 1999. Part III will analyze the Act under constitutional and common law principles, and will support the argument that a constitutional challenge to the Act will fail. Part IV will conclude this comment by summarizing both the history of medical futility and the constitutional analysis.


Deeny said...

Just to let you know there is a healthy happy laughing Thanatophoric Dysplasia baby who just turned 3 August 08.
His parents Keep a website at

Here is a You Tube Video of him Interacting with his mom and laughing adorably.

Thaddeus Mason Pope said...

Thank you.

It is important to remember that predictions of the mortality and morbidity of specific identifiable patients based on population studies are only probabilities and not certainties.

Some patients certainly do defy the odds. Otherwise, we would not call them "odds."

jerry said...