Texas Pro-Life Group’s Effort to Change Futile Care Law Held Up by Politics

Bioethics   |   Steven Ertelt   |   Aug 8, 2007   |   9:00AM   |   WASHINGTON, DC

Texas Pro-Life Group’s Effort to Change Futile Care Law Held Up by Politics

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by Texas Right to Life
August 8, 2007

LifeNews.com Note: Texas Right to Life is one of the leading pro-life groups in the state and has been working overtime to modify a futile care law. It gives families just 10 days to find medical care for their loved ones after a medical facility determines a patient’s case is futile.

The journey to reform Texas’ Futile Care Law, Texas Right to Life’s number one priority for the 80th Texas Legislative Session, was a challenging and often embittered battle that ended in a disappointing stalemate in the House.

However, the efforts of hundreds of activists, including families whose ailing loved ones were victims of the law and the attorneys and doctors who offered benevolent services to the patients, were not in vain. The statewide and national awareness provoked by this battle will not be forgotten by Texas legislators and the citizens they represent. The end of life euthanasia war has only just begun.

Currently, Texas law allows for a physician to withdraw life-sustaining treatment (including food and water) from a patient despite the patient’s advance directive or expressed wishes.

Once the physician’s decision is approved by the ethics committee at the hospital, the patient and/or family have only ten days to transfer to another facility or another physician. The physician or facility is not obligated to treat the patient beyond the tenth day, which can and has led to the death of the patient. Rarely are transfers effectuated either by the family or the facility within the ten-day allotment.

Senate Bill 439 and House Bill 1094 would have changed the law so that a patient and the family are given sufficient time to locate a transfer during which time the patient would continue receiving life-sustaining medical treatment until a transfer is completed, thereby safeguarding against involuntary euthanasia. Eleven other states require that a patient be treated until he is transferred elsewhere, and Texas should have been the twelfth state to enact such patient protections.

On April 12, the Texas Senate Committee on Health and Human Services heard testimony on Senate Bill 439—Texas Right to Life’s proposed changes to the current Texas Futile Care law. Senator Robert Deuell, M.D., (R-Greenville), the bill’s sponsor, explained that most physicians practice good medicine and communicate effectively with patients and their families.

He emphasized that this law only comes into play when there is a disagreement, and in those situations, the current law does not serve families well. The Senate committee then heard from concerned citizens and organizations, including nurses, doctors, disability rights groups, and Right to Life groups.

Many of the families affected by this ten-day law courageously recounted their experiences in battling against the ten-day clock. They discussed how they were shocked and dismayed that the people entrusted to care for their ailing loved ones would soon be the ones to pull the plug against the will of patients and families if a transfer was not found.

Catarina Gonzalez, mother of 18-month old Emilio who at the time was languishing in an Austin hospital, took time away from Emilio’s bedside to address the committee. She dramatically and tearfully shared that she knew her precious son was dying, but she thought he should die when God called him home, not when an ethics committee rendered Emilio’s life as value-less. (Emilio died on May 20.)

More families echoed her sentiments. Lanore Dixon, sister of Andrea Clark, told how her family should have been spending more time with Andrea during the last days of her life instead of fighting lawyers and ethics committees.

Due to the unjust balance of power conferred upon hospital ethics committees to make these life and death treatment decisions, even the Texas branch of the American Civil Liberties Union spoke in favor of SB 439. Will Harrell, Esq., director of ACLU Texas, stressed that patients are stripped of their due process rights and civil liberties when ethics committees make quality of life judgments and decide the fate of patients in the board rooms of hospitals.

Houston attorney, Robert Painter, played a shocking voicemail message left by a hospital administrator for the family of a patient. While Mr. Painter courteously omitted the name of the administrator and the name of the facility, the recording illustrated the quality of life mindset that has infiltrated some of these facilities.

The administrator pressured the family to agree with the hospital and let “your Daddy pass.” More shocking was this: “If we don’t hear from you by Monday, we’re gonna make him hospice so he can go ‘head onto Glory,” threatening the family about the facility proceeding without their consent.

Needless to say, Mr. Painter’s testimony as an attorney who has helped several families through this process was quite compelling. (The patient who was the subject of the voicemail message was slated to be withdrawn from treatment and “made hospice” in January of this year, but was transferred to a skilled nursing facility where he is stable and receiving dialysis.)

On the House side, the Public Health Committee heard all the bills on advance directives on April 25th. The antagonistic tone of this hearing was dramatically different than the cordial tone set by Senator Deuell in the Senate committee.

The chair of House Public Health, Dianne Delisi (R-Temple) presented her own bill on advance directives and end of life care. While her bill, House Bill 3474, would have lengthened the ten days to twenty-one days, other provisions in her bill actually undermined what little protections for patients currently exist in the law.

The testimony on HB 3474 and the other bills on advance directives lasted until 5:11am. Attorney Jerri Ward, Texas Right to Life’s 2006 Pro-Life Attorney of the Year Award recipient, and other attorneys who have helped many families navigate the ten-day transfer process buttressed the ACLU’s concerns about patients being robbed of their due process, not to mention the errors in medical judgment that can occur.

Chairman Delisi would not allow the attorney to play the “Send him onto Glory” voicemail message in her committee. (The recorded voicemail message is posted at https://www.texasrighttolife.com).

Some opponents to the Hughes bill argued by describing treatments that can be painful to patients and told of families insisting that doctors continue painful treatments that will not benefit their loved ones.

However, Burke Balch, JD, Director of the Robert Powell Center for Ethics (and our colleague from National Right to Life), reminded the committee that appropriate palliative care could resolve nearly all pain and suffering issues and also clarified that this bill does not include a requirement for futile treatment—treatment that is providing no medical benefit to the patient, but rather, HB 1094 would require treatment that is sustaining the life of the patient. He further explained medical groups in the states in which “treatment pending transfer” laws are in place have not complained that they cannot work within the law.

Kristina Harrison, mother of six-year old Klemente, told how doctors tried to pressure her three years ago into withdrawing treatment from Klemente, now disabled and in a wheelchair. Klemente was the star of the hearing and would not have stolen the show if his mother yielded to the pressure of the hospital.

LaCretia Webster stated that the only reason she still flies her Texas flag, despite Texas letting her down with our futile care law, is because her father and brother are military servicemen. Her mother, Ruthie, was transferred to a facility in Chicago after a Dallas area doctor personally intervened to thwart two confirmed transfers within the state. She now must travel from Texarkana to Chicago twice a month to visit her best friend, her mother.

Even though Senate Bill 439 had the support of the majority of the Senate committee members as it was written, the committee decided to vote out a substitute for SB 439—a substitute identical to the unacceptable Delisi bill in the House. Unfortunately, this substitute included six elements that rendered the bill even worse than current law while giving the family only an additional 11 days to find a transfer.

Lieutenant Governor David Dewhurst intervened and oversaw negotiations. He offered his own office for negotiations with the stakeholders, including Texas Right to Life, disability rights advocates, and the medical and hospital associations.

To his credit, Dewhurst would not allow the bill to come to the Senate Floor until the problems were remedied. Because of his assistance, SB 439 emerged from his office and then from the Senate Floor in a clean, acceptable form, albeit not close to the original strength of SB 439. Regrettably, when the bill reached the Public Health Committee in the House, the negotiated agreement masterfully orchestrated by Dewhurst was disregarded, and harmful amendments were added. Nonetheless, SB 439 emerged and was placed on the House Calendar, where it died on the last day of eligibility due to its low placement on the schedule.

HB 1094/SB 439 did not die due to a lack of support. In the House 77 out of 150 members co-authored the bill signifying their commitment to vote for the issue, and about a dozen more members firmly committed to support the measure while choosing not to co-author. Twenty of these House co-authors were Democrats who took active leadership, demonstrating the most bi-partisan effort in the history of Pro-Life bills in Texas. Likewise, 11 of 30 Senators co-authored SB 439 (2 Democrats and 9 Republicans).

Texas Right to Life hopes that such established support coupled with a new awareness of the issue will lay the foundation for a victory in the near future. As we continue to help families in the interim who are victims of this law, we will be reminded of the importance of our perseverance in this battle. And we pray that no one else will be the victim of this state-sanctioned, draconian involuntary euthanasia process.