Suit testing futile care law gets hearing
Case could dramatically change end-of-life treatment in Texas
The day Chris Dunn died at Houston Methodist Hospital, following an emotional battle over doctors’ plan to withdraw life support, the family’s attorney asked Evelyn Kelly if she was ready to call it quits.
Kelly, Dunn’s mother, had enlisted lawyer Joe Nixon to file the restraining order that halted Methodist’s use of the Texas law that gives hospitals the authority to discontinue lifesustaining treatment doctors deem futile. Now, he wanted to know whether she wanted to try to have the law itself repealed.
“I am in it to win it,” the Pasadena woman told him that December 2015 day. “I don’t want see any other mother put through what I went through.”
Kelly and Nixon subsequently filed a lawsuit challenging the constitutionality of Texas’ futilecare law, arguing it violates due process protections under the Texas and U.S. constitutions. A Harris County judge is scheduled to hear arguments in the case Friday.
The case could dramatically change end-of-life treatment in Texas, guided for nearly two decades by the law, which is considered a model by much of the medical community for the solution it offers in some terminal cases, and an affront by families who say it allows doctors to play God with their loved ones. No other state gives such power to doctors and hospitals.
Some of the conflicts have been just as charged as England’s Charlie Gard case that drew international attention this summer: Texas Children’s in 2005 became the first U.S. hospital to discontinue an infant’s life-sustaining care against a parent’s wishes; six months later, a similar decision involving a 7-yearold cancer patient at Baylor Regional Medical Center in
Plano provoked allegations so inflammatory that the hospital secured a court order to release information normally protected under federal privacy laws; Dunn’s fight at Houston Methodist included a video that went viral in which the 46-year-old man clasps his hands in prayer to indicate his desire to live.
Such conflicts have made the law a frequent subject of reform efforts in the Texas Legislature, but bills typically died because it was so hard to get consensus. A few lawsuits were filed but never made it to courtrooms.
Kelly’s suit may seem a long shot except for one thing: Texas Attorney General Ken Paxton has filed a brief on her side.
Paxton, who frequently talks about the importance of upholding the rule of law, declined Chronicle requests for an interview about why his office is not defending the futile care statute. His brief, however, says the law “leads to the denial of a constitutionally protected interest — the right to life and the right to determine one’s medical treatment — and it does so through woefully insufficient procedures.”
Such attorney general advocacy against a statute passed by the legislature is unusual, but not unprecedented, experts said.
“It’s the subject of amazement nationally that a conservative state like Texas has the nation’s most explicit, doctor-friendly law in these matters,” said Art Caplan, director of bioethics at the New York University Medical Center.
The only surprise about the lawsuit, he said, is that it took so long for the statute to be challenged.
Suffering vs. benefit
The law was enacted in 1999 in response to physicians’ push for futile care to be identified and eliminated. Such care involves cases in which doctors believe continued treatment causes suffering rather than benefit in dying patients.
Under the law, doctors can withdraw life-sustaining treatment as long as a hospital ethics committee agrees continuing care would be medically inappropriate and the patient’s family is given 10 days to find a facility to which the patient can be transferred. If those conditions are met, doctors and hospitals have immunity against lawsuits in such cases.
For opponents itching to challenge the law legally, Dunn seemed the perfect case to take to a judge.
Dunn was taken to Methodist in October 2015, after doctors found a mass on his pancreas. In ensuing weeks, it grew so large it began pinching his small intestine and kidney and caused organs to begin failing. Methodist doctors placed him on a breathing tube, but told Kelly they had done all they could and invoked the law.
Nixon’s temporary restraining order stopped the process before the 10-day transfer period elapsed. Methodist continued care, and a few weeks later Dunn succumbed to the illness.
Nixon emphasized that the lawsuit, which asks for $1 in damages, is not about Dunn’s care at Methodist.
“The issue is the authority given hospitals to withdraw care altogether, the lack of due process,” he said. “The only other time the state is allowed to take a life is capital punishment and look at all the procedural safeguards there.”
He rattled off a litany of what he said are problems with the law: it provides no definition of futile care; no criteria for the make-up of the ethics committee; no right for the patient to have an advocate at the committee hearing; no record of the hearing or right of review; and no avenue for court appeal.
The criticisms resonate with some bioethicists and lawyers who favor a formalized futility process. Though he does not believe the law is unconstitutional, University of Texas Medical Branch at Galveston ethicist William Winslade said he understands why families can feel “overwhelmed, intimated and browbeaten” by doctors and hospitals.
Thaddeus Pope, director of the Health Law Institute at Mitchell Hamline School of Law in St. Paul, Minn, does think the law is unconstitutional. He wrote a lengthy journal article last December calling the law a commendable attempt to balance competing interests but “far more efficient than it is fair.” He argues ethics committees are too beholden to hospitals, their workings too secretive and their decisions unilateral.
Law has support
Methodist refused comment beyond a statement that said it follows the law “as it is written, and our goal is to always make medical decisions that promote comfort and dignity for our patients.”
In court filings, Methodist lawyers have asked that the case be dismissed, arguing Dunn was not harmed because his care never was interrupted and the matter moot because he no is longer alive. They say the hospital “is not the proper party to defend the constitutionality of a state statute,” but add, “simply put, Methodist did not violate plaintiff’s constitutional rights.”
Methodist is supported by a number of groups as unexpected in some ways as Paxton is for the other side — the Texas Alliance For Life, the Texas Catholic Conference of Bishops, the Coalition of Texans With Disabilities and the Texas Alliance for Patient Access. Those organizations joined with state physician and hospital associations in a brief arguing the law provides an important tool for balancing doctors’ difficult choice between “the desire to carry out patients’ wishes and ethical duty not to increase or prolong patients’ suffering.”
Among the law’s defenders is Tom Mayo, a Southern Methodist University lawyer and bioethicist.
“The law may not be a perfect statute, but it’s constitutional,” said Mayo, who helped draft the law. “It was designed to improve care, and it accomplishes that on a regular basis. Families often have unrealistic expectations about what medicine can accomplish. This law tamps down those expectations.”
He added that nothing in the statute prevents judicial review of a hospital’s decision. The bill’s authors just did not want to provide a road map, he said.
The case will be heard in Harris County’s 189th District Court by Judge Bill Burke, a 2003 appointee of Gov. Rick Perry. Legal experts said that though it is impossible to know how Paxton’s brief will influence Burke, it is bound to have some effect.
If Burke does strike down the law, most experts interviewed said they think it unlikely the Legislature will be able to pass an improved version because the issue is so contentious. Pope said all but one of 50 reform bills introduced in the legislature over the years failed. A number of states that tried to copy the law had no better luck.