Texas Futile-Care Law Backfires

Several years back, disability and life advocates in Texas lobbied to change the state laws regarding treatment of “futile” patients. Formerly, doctors would be able to unilaterally terminate treatment if a hospital determined that continued care would not benefit the patient. The resulting law (Texas Advance Directives Act), signed by then-Governor George W. Bush, gives a family ten days to arrange a transfer of care if a hospital declares a patient to be “medically futilie.” If no transfer is arranged, the hospital may terminate care, even when it would result in the death of the patient. While the changed law is certainly an improvement over its Draconian predecessor, it does not go far enough in protecting vulnerable patients and their families; Texans did not realise that ten days was not sufficient time to arrange for a transfer of care. Several other states allow a hospital to declare that continued care would not be beneficial, but do not allow them to terminate care until authorised by the family.

The parents of a 17-month-old boy on life support are now challenging the law. The hospital that is treating their son declared such treatment to be futile, which triggered the 10-day deadline. The Gonzales family was unable to find a facility that would treat their son during that time and are fighting to prevent the hospital from withdrawing treatment.

Michael Regier, senior vice president for legal affairs of the Seton Family of Hospitals, which includes Children’s Hospital, said the child’s condition continues to deteriorate although he has not met the criteria to be declared brain dead. He said the hospital has contacted 31 facilities “without any single indication of interest in taking the transfer.”

The fact that this child is not brain-dead, nor even persistently vegetative, and may lose life support is simply appalling. We know that he is not brain-dead, although his condition is worsening. It is quite likely that other hospitals are reluctant to take him because of the financial loss; if he receives care under state aid or a private insurance company that balks at paying such astronomical bills, this kid is a huge loss for a hospital.

Certainly, there are quality of life issues to consider. This pachyderm would not want to be on life support after she ceased being her (sarcastic, cynical) self. Yet, it is undeniable that the continuation of life support is a spiritual and emotional decision – i.e. one that is not in the province of medicine. Medicine may render a prediction about or an opinion on certain treatments, but may not determine whether life is worthwhile. (This is the conservative flip side to Wytammic’s post on doctors who refused to artificially inseminate a lesbian.)

In the case of artificial insemination, a physician’s refusal to perform the requested procedure will have no long-term effect on the patient: she is free to seek another, willing doctor and have her children that way. Here, however, the decision of a group of doctors is quite permanent. There should be more protection against the caprice of decisions that cannot be reversed and have incredible consequences than against those decisions which have little or no ultimate effect on a person’s health or life.

Update: A Texas judge has issued a temporary restraining order which will prevent the hospital from cutting off Emilio’s life support until his parents can find another home for him or a full determination is made in trial. Kudos to the attorneys at Alliance Defense Fund who are fighting for the family. Thanks, Tammi, for the link.