Disability Discrimination from NBT/PIT/Futility Withdrawal of Life-sustaining Treatment

In February 2026, the U.S. Court of Appeals for the Fifth Circuit ruled that a disability discrimination case may proceed where Texas providers withheld life-sustaining treatment from Michael Hickson based on determinations that the patient's inability to walk or talk meant that he had a low quality of life.  

"We hold that a plaintiff asserts a cognizable claim for disability discrimination based on adverse medical treatment decisions—or decisions not to treat—when allegations show that the treatment was based 'solely,' in the pejorative sense, on the individual’s disability." 

I blogged about that here. 

On June 25, 2026, the U.S. Court of Appeals for the Fifth Circuit denied the defendants' petition for rehearing en banc. The defendants will now likely seek certiorari from the U.S. Supreme Court. 

Numerous healthcare societies are likely to submit amicus briefs. Already, the Texas Medical Association and the Texas Hospital Association warn that the holding contravenes holdings in every other circuit. And it will (1) expand liability, (2) undermine tort reform because the ADA is not subject to medical malpractice caps and rules, (3) and increase healthcare  costs because insurance does not cover judgments for discrimination.