The balance of power between patients and physicians about end-of-life health care decisions has seesawed over the years. The development of “advance directives,” led to a nationwide shift in favor of patients. Advance directives allow patients the opportunity to convey end-of-life decisions prior to a need arising. In Texas, these patient rights have diminished as legislators focus on development and implementation of the futility review process that authorizes health-care providers to have the final say under certain circumstances.

Development of Advance Directives Law

In 1990, Congress entered the debate over this balance of power by enacting the Federal Patient Self-Determination Act of 1990.1 Generally, this federal law requires medical facilities that participate in Medicare and Medicaid to provide patients with written information about their rights under state advance directive laws, including their rights under state law to make health care decisions and the facility’s written policies implementing those rights.2 In addition, the law requires a patient’s medical record to document whether or not the patient has an advance directive and expressly prohibits discrimination based on the existence or absence of one. In essence, the federal law focuses on mandating disclosure of state law advance directive rights to patients and compliance with those state law rights.

In 1999, the Texas legislature passed the Advance Directives Act of 1999 (“Act”), which is a comprehensive approach to advance directives in this state.3 The Act originally passed with broad support of hospital, medical, pro-life, and civil liberty groups. Within a few years of enactment, however, the coalition dissolved when there were strong disagreements over how this particular provision was implemented by health care providers.

One of the most passionately debated topics in Texas health law over the past two legislative sessions is a provision of the Act establishing a medical futility review procedure. This procedure allows a hospital ethics committee to make the final decision on when to end curative care, including the provision of food and water, if there is a disagreement between the attending physician and the patient or family.4 Health care providers are empowered to seek the advice of the ethics committee for a dispositive medical opinion to use during the futility review proceeding if the physician believes that continuing curative care would be futile.

Critics’ charge that the Act gives hospitals and physicians near-absolute power over when to terminate treatment—even when it means that a patient will die—and that they have abused this statutory grant. Supporters counter that the Act allows health care providers to bring a humane end to medically futile care when family members cannot reach a decision.

Both sides will continue to lobby intensely in future legislative sessions until there is a compromise or the law is amended. In the meantime, with the modern emphasis on planning ahead for medical decision-making, attorneys should counsel their clients about this provision of the Act.

Current Texas Medical Futility Law

The Act also establishes the following requirements and limitations on the medical facility when its ethics committee institutes a futility review procedure. A facility must give the patient or the patient’s family at least 48 hours of notice before the proceeding is scheduled to begin.5 After the two days have passed, the facility’s ethics committee can meet to make a determination. The Act specifies that the attending physician may not be a member of the ethics committee6 and that the patient or health care decision-maker has the right to attend the ethics committee meeting where medical futility is being considered.7

By the same token, the Act omits several key issues relating to the committee panel and procedural format during the review process. For instance, there are no details or guidelines concerning how a hospital composes its ethics committee, the number of committee members required, what percentage of members, if any, is allotted to non-health care providers, or even any minimum procedures to guarantee due process. Further, there is no provision that guarantees the patient or the patient’s family any right to have an attorney present during the proceeding. Although ethics committees are frequently reluctant to allow an outside attorney to attend the proceeding, they usually acquiesce with the understanding that there will be no opportunity for cross examination.

The futility review proceeding before an ethics committee typically begins with a presentation from the attending physician and other members of the health care team. During the presentation, health care members provide reasoning and evidence to support why they believe further curative care would be medically futile. Subsequently, most committees also allow the patient and family to present their arguments and evidence.

After the futility review proceedings, the ethics committee must prepare and provide the patient or family with a written explanation of the decision reached during the review process; the Act places no requirements on the extent of the explanation provided.8 If the committee’s decision agrees with the attending physician that further care is medically futile, the hospital and attending physician must give the family or health care decision maker 10 days to arrange transfer of the patient to a different facility before terminating curative care.9 The 10 day period begins on the day the patient is given notice of the written decision.

If the hospital, physicians, and health care providers comply with Section 166.045 of the Act, they enjoy complete immunity from civil and criminal liability and are not subject to disciplinary action by any licensing board.10

In the event a transfer cannot be made within 10 days of a committee decision finding medical futility, there is only one legal mechanism to stop termination of care. The Act permits the patient or someone acting on the patient’s behalf to file a lawsuit in an appropriate district or county to seek additional time.11 Typically, these lawsuits are initiated by the filing of an original petition with a request for a temporary restraining order preventing discontinuation of treatment, nutrition, and hydration. An oral hearing for a temporary injunction normally follows within 14 days, but the temporary restraining order may be extended once for another 14 days upon a showing of good cause.12 The court must grant additional time only if the patient establishes by a preponderance of the evidence that there is a reasonable expectation that another physician or health care facility will accept the patient and continue care.13

Proposed Amendments to Texas Medical Futility Law

A majority of individuals and groups that seek to amend the Act focus on the following time periods that are codified: (1) the 48 hour notice to the family that the ethics committee futility review proceeding will begin; and, (2) the 10 day period for the family to transfer the patient before curative care may be terminated. Civil libertarians and patient rights advocates argue that neither provides sufficient time for the complicated and technical requirements that are thrust onto the patient and family.

In the 2007 and 2009 legislative sessions, a coalition of organizations ranging from Texas Right to Life to the American Civil Liberties Union advocated amendments to the Act that would eliminate the 10 day period for finding a transfer facility. These proposals were opposed by the Texas Medical Association and Texas Hospital Association.

In 2007, identical bills were introduced in the House and Senate, dubbed “treat to transfer” legislation, which would require curative health care to continue until a transfer facility was located.14 The House bill was assigned to the Public Health Committee, chaired by Rep. Dianne Delisi. Rep. Delisi introduced a compromise bill that would increase to 21 days the time given to achieve a transfer.15 No amendment passed that session.

In the 2009 session, Rep. Bryan Hughes introduced House Bill 3325, which was another treat to transfer bill.16 The bill had four authors and 69 co-sponsors.17 This legislation did not make it out of the State Affairs Committee.18 There is little doubt that similar legislation will be pursued in the 2011 legislative session.

Practical Tips for Individual Client Counseling

An issue involving medical futility may come up at any time and is not the exclusive domain of elder law. In fact, of the handful of reported cases addressing a request for extension of time, one involved an infant.19

Although each situation is fact-specific, the best time for patients and families to start thinking through these issues is before they are faced with a serious or life-threatening medical condition.

Many medical futility proceedings seem to occur because there is not a clear understanding of how the patient would want his or her health care to proceed. Indeed, ethics committee members frequently ask, “What would the patient want if he or she could communicate with us?” Without a written advance directive, both family members and health care providers are left to guess. Adults should execute advance directives that define their choices, including whether they want their health care providers to undertake heroic measures to prolong life. Moreover, attorneys should counsel their clients to discuss their wishes with their designated health care agents. Lawyers should also encourage parents to think about and discuss how they would handle this issue if they had to confront it concerning a minor child.

The Houston Bar Association website has a form advance directive.20 For clients interested in an advance directive that calls for heroic measures, the Texas Right to Life form provides those details.21

Robert W. Painter, of Painter Law Firm PLLC, is a trial attorney who represents plaintiffs in medical malpractice matters. He is an associate editor of The Houston Lawyer.

Endnotes

1. Omnibus Reconciliation Act of 1990, P.L. 101-508, Nov. 5, 1990, 104 Stat. 1388-115-7.     2. 42 U.S.C. § 1395cc(f).   3. Tex. Health & Safety Code Ch. 166 (Vernon 2003).   4. Tex. Health & Safety Code § 166.046 (Vernon Supp. 2003).  The Commonwealth of Virginia is the only state with a similar procedure.  See Va. Code § 54.1-2990(A)   5. Id. at § 166.046(b)(2).   6. Id. at § 166.046(a).   7. Id. at § 166.046(b)(4)(A).   8. Id. at § 166.046(b)(4)(B).   9. Id. at § 166.046(e).   10. Id. at § 166.045(d).   11. Id. at § 166.046(g).   12.Tex. R. Civ. P. 680.   13.Tex. Health & Safety Code § 166.046 (g).   14. http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=80R&Bill=HB1094;     http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=80R&Bill=SB439   15. http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=80R&Bill=HB3474   16. http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB3325   17. Id.   18. Id.   19. See, e.g.,Hudson v. Texas Children’s Hosp., 177 S.W.3d 232, 233 (Tex. App.—Houston [1st Dist.] 2005, no pet.).   20. http://www.hba.org/folder-services/pdfs/living.html   21. http://www.texasrighttolife.com/pdf_forms_docs/will_to_live.pdf