Texas hospitals routinely decide who dies

As President Obama pulls out all of the stops to get health care reform passed, I want to bring light to an area that has received a lot of media coverage, but not much in-depth reporting. “Death Panels,” “Patient Consultations” – call them what you will. The fact is that when you get past the rhetoric on both sides, there are real-life examples and real-life stories of this critical issue of who gets to decide to make life and death decisions – whether that’s an elderly patient, a child, or someone in between. And the culprit is, Texas.

In Texas, hospitals and lobbying groups that support them fought the fight over who gets to decide when to stop treatment, and the hospitals were the victors. The patients, families, and individual rights organizations were the losers. There is now in existence a shocking Texas law that essentially places all the power in the hands of the hospital. And some hospitals do not hesitate to abuse it.

I raise the current Texas law and some real-life Texas examples into the current national health care debate because back when the Texas provision was being debated, it seemed so innocuous, just like the patient consultation provisions seem innocuous in the current health care reform proposals.

In Texas, a hospital committee can make a decision to terminate health care for a patient – even when the decision goes against the family’s wishes, the patient’s medical power of attorney, and a patient’s own wishes stated in a legal advance directive.

“What!?” is usually someone’s reaction when I tell them this. Then they usually say, “Oh, I’m safe because…I have insurance, I’m young, I have a medical power of attorney, I have an advanced directive.” My answer is: “Wrong. None of those things protect you, your family, or even your minor children.”

Even after I tell people this, they still have a hard time believing it. The Texas law is so insidious because it is unbelievable on so many levels.

First, it is a slap in the face to patients. Consider a lady who believes she is making her wishes known by executing an advanced directive (which states she wants life support) and a medical power of attorney (which states she wants her family to make final decisions if she is incapacitated).

Second, it is a slap in the face to parents. Consider a couple who have a little girl that slips into a coma. These parents rightly believe that they, who brought this little girl into this world, should have the right to fight for her life and not give up hope immediately. I have a client that this happened to – Sabrina Martin, a 14 year old girl. The hospital started trying to bully the parents into terminating care just days after a surgery (that the surgeon had promised would have her back on her feet in a few weeks). The mother tells about other tactics that Memorial Hermann Children’s Hospital used, such as turning family members against each other or inserting unauthorized Do Not Resuscitate orders into her daughter’s chart.

Third, it’s a slap in the face to the family as a whole. In one of my cases, my client, Kelly Davis, was frantically trying to transfer her father to different facility because the hospital was going to end his life. Officials with three alternate facilities said the hospital was “tricky,” manipulative, and even urged the facilities NOT to accept her father as a patient. It would appear, the hospital was actively working against her and did not want to see her father live. The Texas law allows this.

Fourth, it is a slap in the face of all Texans. The Texas Legislature passed a law entitled the “Texas Advance Directives Act of 1999.” The law, on its face, is pro-patient. So the law, in application, is anything but pro-patient. It recognizes individual’s rights and establishes a way for someone to make an advance decision about life support and curative care – before they are incapacitated. This was an effort to avoid the family infighting or people saying, “Well, she would have never wanted to live this way.” But then the Legislature inserted a loophole you can drive a tractor trailer through. Through this loophole, a hospital committee can make their own decision if they do not agree with what the patient wanted or with what a family member is deciding. So, basically, the hospital committee has the authority to override anything or anyone. This applies to all patients–young or old, with or without insurance.

If one of my children were to be hospitalized, my wife and I hope to make all life-and-death decisions. I can guarantee, we would fight for our child’s life. If I became incapacitated, I would want my wife to make decisions for me because I know she would fight for my life. But the fact is, a hospital committee can trump me and my wife. If you are thinking, “This is insane! I had no idea!” you are like the vast majority of people I have talked with. But it is what our Texas Legislature continues to allow.

The Obama administration is infatuated with the word “hope.” Well, I, too, have hope. I hope that Texas reverses this nonsense of a law. I hope that America does not get duped into adopting anything even remotely like it. And I hope, in the process, that Americans wrestle back control of their health care from elected officials and bureaucrats.

Robert W. Painter, an attorney at Painter Law Firm PLLC, in Houston, Texas, handles medical malpractice and futility review matters for patients and their families. He has testified in favor of amendments to the Advance Directives Act of 1999 in the Texas Legislature, and has done further analysis of the current law at www.survivinghospitals.com.