Posted by: bridget | 11 April 2007

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.



  1. Hi Bridget,

    This Texas law makes me sick. Not trying to open a whole new can of worms here, but I can imagine with a little research, one might discover that organ donation/transplant groups are behind such laws.

    We personally knew a teenager who was in a car accident in TX, and the doctors declared him brain dead and had the plug pulled in less than a week. His traumatized parents, from another state were pretty much shell shocked to say the least. Not to mention, they were pressured to donate his organs, which they refused, but it was not easy. They said the organ donation people were the most belligerent group of individuals they’d ever ran across. Actually, the organ donation people were requesting his organs before he was officially declared brain dead. It makes me question the actual “brain deadness” of anyone declared to be in such a state.

  2. Oh i’ll be praying for this baby, please keep us updated!

  3. Tammi,

    I didn’t think of the organ donation issue. As a pro-lifer, I’m all for organ donation (why have more people suffer?), but have huge issues with the methods used to obtain those organs.

    It seems as if we need more protection for potential organ donors. I can really understand why your friends did not donate his organs: why let other people profit from their wrongdoing?

    Mommyzabs, I’ll keep you guys updated if I hear anything. My thoughts are with that family… and I’m sincerely hoping that a judge grants a stay.

  4. This is why I won’t let them put “organ donor” on my license. My wife knows I want them donated, but I don’t want the doctors to know that.

  5. Good decision TT. Seriously, I believe they’ll have you checking out before your actual time. I’m really sour on the whole idea of organ donation — because of their methods.

  6. Good call on that one, TT. My family knows that I want to donate (we’re big on organ donations, if at all possible). When my grandmother passed away from cancer, the Lions Club asked for her corneas. We got a good laugh out of the fact that someone is seeing the world through her eyes.

    Gotta love a culture that does not mind appropriating someone else’s life for the comfort of another. We seem to believe that if someone can make a decision on who should live, die, or merely be uncomfortable, that person has the moral right to make such a decision.

  7. I seriously believe that having that “organ donor” on your license influences their opinion about whether to keep trying or whether to give up. Especially when you are some crusty middle-aged guy and they have a young boy or girl desperately in need of a new heart/liver/lung.

  8. Or if the hospital would make significant amounts of money off the procedure. (Some procedures are more profitable than others.) Or, someone may justify it as three lives saved, one lost, while conveniently ignoring the fact that such rationale would mandate that entirely healthy people be harvested for organs for the “greater good.”

  9. Hi Bridget,

    I found this today on this story.

  10. I have resisted having “organ donor” on my driver’s license too, but I thought I was just paranoid. I guess it is true that “just because you are paranoid, that doesn’t mean they still aren’t out to get you.

    Seriously though, I will add this child to my prayer list too and I hope Texas fixes this law.

  11. […] It is always hard to find comfort in these situations, but at least this little boy got to die naturally, in his own time, without the “assistance” of the physicians at the Children’s Hospital of Austin.  I use the term “physicians” rather loosely, since any medical professional who consciously chooses to end a life rather than attempt to save it is no physician to me.  Bridget had a good post about this story and the Texas Futile-Care Law a while back over at Helvidius, a Pachyderm. […]

  12. […] Final thought: the Alliance Defense Fund correctly noted that the Ramirez case was successful because Arizona law requires that a health care surrogate (court-appointed or appointed by the patient in a prior instrument) act in the best interests of the patient when deciding to remove life support.  Obviously, Florida’s laws are not so pro-life; Texas reconfigured its futile-care law, which is now only moderately problematic for patients and their families (here). […]

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