Battle over futile care erupts in Texas

Some groups say hospitals should continue intensive life support indefinitely; many doctors argue that treatment should not continue when it is medically inappropriate.

By Kevin B. O’Reilly — Posted May 14, 2007

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Disability rights and pro-life activists are pushing for changes in Texas law that would force physicians and hospitals to provide life-sustaining treatment indefinitely in medically futile cases.

Under an advance directives law hammered out by medical, disability and pro-life groups in 1999, the families or proxies of patients on life support have 10 days after hospital officials formally notify them that they plan to withdraw treatment to find another facility to care for the patient.

But the Terri Schiavo controversy and a number of heavily publicized cases in which Texas families scrambled to transfer their loved ones and sued hospitals to continue treatment have taken place since then. Bills now being considered in the Texas Legislature would eliminate that 10-day time limit. A measure in the 150-member House has garnered 80 co-sponsors.

The Texas Medical Assn. argues that these so-called treat-until-transfer bills would force doctors to continue treatment in cases when it's medically inappropriate and that further intervention inflicts pain on patients without any corresponding medical benefit.

The Texas law, which applies only to terminally ill patients with an irreversible condition who are unable to make their own health care decisions, is also unusual because it requires the hospital's ethics committee to review any medical futility case before the 10-day clock starts ticking. While hospitals in other states usually review any decision to withdraw care, such procedures are not legally required. Virginia is the only other state to place a time limit, 14 days, on how long an effort to transfer the patient must continue before life support is withdrawn.

Texas hospitals have used their state's advance directives law 27 times to withdraw treatment over family objections, said Robert L. Fine, MD, one of the 1999 law's architects.

Supporters of the status quo say the process normally extends far beyond 10 days.

"This law is usually invoked after days, weeks or even months of negotiation with families," said Tom Mayo, a health law professor at Southern Methodist University in Dallas who has helped evaluate more than a dozen medical futility cases on various hospital ethics committees.

Those seeking to abolish the time limit, however, allege that hospitals are most concerned about the estimated $10,000 a day it costs to provide intensive-care unit life support in these cases.

"The current statute, effectively allowing euthanasia with a polite and perfunctory 10-day notice, is misapplied and rips families away from the bedsides of their loved ones," said Bob Deuell, MD, author of a Senate treat-until-transfer bill, in an April letter to The Dallas Morning News. Dr. Deuell did not respond to AMNews' interview requests by deadline.

Bob Kafka, a Texas organizer for Not Dead Yet -- a disability rights group that opposes the advance directives law -- said in a statement that "the ability of a doctor to overrule both the patient and their surrogate in withdrawing life-sustaining treatment is in violation of the principle of patient autonomy."

But physicians argue that their obligation is principally to the terminally ill patient, not the family.

"It can be hard for patients' families to wrap their heads around the dying process," said Hanoch Patt, MD, an Austin, Texas, pediatric cardiologist who has served on hospital ethics committees and testified against the treat-until-transfer legislation. His patients often require invasive procedures if there is any hope for recovery, "but when a treatment can cause only more pain and suffering without any hope of benefit, then we're just prolonging the dying process, and I'm obligated to stop the treatment."

Compromise in the works

As this story went to press in late April, a compromise bill authored by House Public Health Committee Chair Dianne Delisi that would give families 21 days' notice to secure a transfer before the withdrawal of life support gained backing from the Texas Hospital Assn. and the Texas Medical Assn. The bill also would not apply to cases in which the only life support provided is artificial hydration and nutrition.

Such a compromise is not ideal, said Mark Casanova, MD, an internist at Baylor University Medical Center in Dallas.

"Physicians are going to live within the legal confines that we are forced to live within," he said, "but morally and based on medical ethical principles that are centuries old, we don't feel that it's necessarily appropriate. It's just 11 more days of suffering and pain for these patients that will not result in a single saved life."

AMA policy on futile care says hospitals should develop policies on how to handle such cases, refer them to ethics committees, involve families to the greatest extent possible and attempt to negotiate settlements. If the committee sides with the attending physician, the ethical opinion states, the hospital should seek a transfer, and if no transfer can be arranged, care should be withdrawn.

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