Family Restoration and Advance Directives in Protocal Medical Care

Advance Directives afford individuals an important opportunity to make their wishes regarding end of life decisions known to medical professionals, courts, and family members.  These documents, signed by the creating party, can confer decisions regarding pain management, hospitalization, and resuscitation decisions.

These decisions are important for individuals and families to understand.

Recent Regent Law Graduate, Colby Barron Hein, researched these concerns under Texas law for her article and presentation entitled "Death Panels in Texas?  An Examination of the Texas Advanced Directives Act." She writes about the case of one individual named S.M., and her family's fight for her life:

For several weeks, S.M. had been complaining of severe headaches to her parents.  S.M. was desperate for relief from the pain, so her parents took her to the emergency room to ensure there were no serious problems.  The doctors performed a brain scan and discovered she had severe sinusitis, which had leaked into the brain and caused an abscess.  To drain the abscess, the doctors performed a routine craniotomy.   S.M. was expected to fully recover in a matter of weeks.  However, the day after the surgery S.M. felt nauseous and complained of severe pain.  Nurses gave her morphine, but it failed to alleviate the pain.  S.M. begged for help and started vomiting.  Frantically tearing at the I.V. and the post-surgical wrappings on her head, the nurses strapped her arms with restraints and administered another dose of morphine.  Without warning, S.M.’s body seized up, her back arched, she gasped, and then collapsed onto the bed.  She flat-lined.

 The hospital staff revived S.M., but the swelling pressure in her head necessitated an emergency brain surgery.  After the second surgery, S.M.’s parents were told that their daughter had two strokes and was in a coma that the doctors believed would be permanent.  Within days of the second surgery, the hospital staff began discussing S.M.’s “options” with her parents.  Doctors and nurses began pressuring S.M.’s parents to withhold treatment, food, and water, which would starve S.M. to death.  When her parents refused to withdraw life-sustaining treatment (LST), the hospital repeatedly harassed them to terminate care and “did everything they could to end . . . [S.M.]’s life  . . . .”  The hospital eventually threatened to convene the ethics committee, which under Texas law can withdraw LST from a patient over the objections of the patient or the patient’s surrogate decision maker.  Fortunately for S.M., an experienced attorney intervened and transferred S.M. to another hospital willing to provide medical care.  S.M. will never be able to take care of herself again; but on the other hand, she is still alive.

S.M.’s parents requested medical treatments that would have permitted S.M. to leave the hospital and be cared for at home, but the doctor’s refused alleged that the doctors refused to provide the treatments because the doctors felt S.M. “wouldn’t have a high quality of life.”  The doctors and nurses believed it was futile to provide S.M. with additional medical treatment, for the appropriate course of action was to “pull the plug.”  When a physician views medical treatment as medically inappropriate and refuses to provide the additional care in spite of the express wishes of the patient or surrogate decision maker, this situation is called a futility dispute.  When a doctor refuses to provide “futile” treatment that conflicts with the standard of care, the doctor must determine the appropriate course of action: transferring the patient to another physician, continuing the futile treatment, or unilaterally removing the treatment from the patient.  Most jurisdictions accept transfer as an appropriate resolution to futility disputes, but, if no providers are willing to accept the patient, the physician can either unilaterally withdraw the treatment or be forced by a court to continue providing LST.   In every single state but Texas, the law prohibits healthcare providers from unilaterally overriding a patient or surrogate’s wishes to continue LST.  The Texas Advance Directives Act (TADA) permits doctors to refer futility disputes to a hospital’s ethics or medical committee, which can choose to deny or withhold wanted medical treatment—including LST—over the express wishes of the patient or surrogate.

When S.M.’s parents discovered the ethics committee had the statutory authority to withdraw LST from their daughter, they were shocked.  S.M.’s case was never officially referred to the ethics committee,  but her story is one in a series of cases raising serious ethical and constitutional issues regarding the broad powers given by the TADA to review committees.  Opponents of the law—ranging from the liberal ACLU to conservative right-to-life groups—claim it gives medical providers too much power and encroaches on patient autonomy.  Proponents—primarily those working in health care—argue the TADA is essential to protect physicians when medical standards indicate treatment is inappropriate and emotional relatives cannot objectively determine the best interest of the patient.  The American Medical Association recommended an approach based on due process as the best method for balancing patient and physician rights in futility disputes.  Texas sought to incorporate a process-based approach to futility determinations in the TADA, but the law does not accurately reflect a true due-process model.

Hein's article is an attempt to reconcile advocates and opponents of the TADA by analyzing the existing law and proposing amendments that would incorporate a true process-based method. She discusses the history of futility disputes, different definitions of futility, and clarifies which definition should be adopted. Her work also describes the genesis of the Texas Advance Directives Act and explains the procedures for futility disputes set forth under the TADA, and lays out the flaws of the TADA and submits proposals to alter and improve the current law. Read the entire article here.

An understanding of the law surrounding the use and application of advance directives is necessary for strong families and a nation's attempts toward family restoration.