Preserving Do No Harm: Supreme Court Tosses Challenge to Medical Ethics Committee Law.
By Joey Berlin Texas Medicine February 2020

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Twenty years after it took effect, Texas’ medical ethics committee review law has withstood challenge after challenge. The Texas Supreme Court is on the verge of ending the latest high-profile attack on the law that ensures physicians can uphold their professional obligation to “do no harm.”

In October 2019, the state’s high court declined to take up Kelly v. Houston Methodist Hospital, in which the mother of a deceased patient attempted to overturn a provision of the Texas Advance Directives Act. Justices’ action leaves intact an appeals court decision that preserves physicians’ ability to use their medical judgment in end-of-life cases.

The Texas Medical Association supports the law. If a patient or a patient’s representative wants to continue life-sustaining treatment – but an attending physician believes the treatment isn’t medically appropriate – the law allows the physician to take the patient’s case to the hospital’s ethics committee. If the ethics committee agrees that the treatment isn’t medically appropriate, the physician and hospital have 10 days to make a reasonable effort to transfer the patient to another facility. After the 10th day, the physician may withhold or stop the life-sustaining treatment without facing either civil or criminal liability, unless a court order mandates that the treatment continue.

Robert Fine, MD, clinical director of Baylor Scott & White Health’s Office of Clinical Ethics and Palliative Care, helped craft the law before its passage in 1999. The idea behind it, Dr. Fine told Texas Medicine, “was to say good families and good doctors can disagree with each other on what’s the right moral action to take – whether it’s a so-called right-to-die case where the family is demanding that the patient be allowed to die and the doctors and nurses are saying, ‘We’re not sure it’s time for that yet,’ … or, it’s a case where the patient’s clearly dying and the family is demanding that treatment be maintained, which prolongs the dying and prolongs the suffering.”

TMA, the Texas Alliance for Patient Access (TAPA), and others supported Houston Methodist Hospital with friend-of-the-court briefs earlier in the case.

Evelyn Kelly, who pursued the suit with backing from Texas Right to Life, the state’s largest pro-life group, asked the Supreme Court to reconsider its decision not to hear the case. The  high court denied that request just before press time, bringing the case to an end.

In November, attorneys for both Methodist and Ms. Kelly declined comment for this story because the case was still pending; Texas Right to Life did not return messages from Texas Medicine requesting comment.

TMA and others back the law

Ms. Kelly filed suit nearly four years ago after the death of her son, Chris Dunn. He was admitted to Methodist in October 2015, and the hospital began life-sustaining treatment. According to court documents, Mr. Dunn’s treating physicians soon came to believe the treatment was making him suffer. Ms. Kelly disagreed with their decision; Mr. Dunn’s father favored withdrawing the life-sustaining treatment as the physicians recommended, court documents say.

So the patient’s case went before the hospital’s medical ethics committee, which agreed with his care team. Attorneys representing the patient initiated legal action, and Methodist agreed to a temporary restraining order to keep him on the life-sustaining treatment. He was still on it when he died on Dec. 23, 2015.

Ms. Kelly released a statement  to a local TV station thanking Methodist for continuing the treatment and vowing to “continue the fight against this horrible law.” She then filed suit against Methodist in February 2016 alleging a violation of her son’s due process rights, as well as hers. The suit claimed Methodist “prematurely applied the procedures” of the law, which “allows doctors and hospitals the absolute authority and unfettered discretion” to stop the life-sustaining treatment of any patient.

A Harris County court ruled against Ms. Kelly in September 2017, saying any adjustment to the law would need to come from the legislature, not the courts. She took her case to the First Court of Appeals, which ruled in March 2019 that the case was moot because Mr. Dunn’s rights weren’t violated when the hospital invoked the ethics-committee law. Justice Julie Countiss wrote that “no action inconsistent with Dunn’s alleged desires regarding his medical treatment” was taken.

In both courts, TMA joined in a brief filed in the appeals court with TAPA, the Texas Hospital Association (THA), the Texas Catholic Conference of Bishops, Texas Alliance for Life, and others. The groups argued against forcing medically inappropriate treatment, saying it “threatens the proper and ethical practice of medicine.”

While the wishes of patients and families are “entitled to substantial deference, they cannot and should not override conscientious medical judgment,” the groups wrote. “Doctors must objectively determine if a given treatment will help or harm the patient.”

Ms. Kelly asked the state Supreme Court to review the case in June 2019 and again in October. She argued in a filing that the ethics-committee law “denies patients constitutional due process before a life-terminating decision is made. There is no impartiality in the hospital’s ethics committee. There is no right to be heard by the committee.” She argued that the ethics committee procedures “expose patients to a risk of mistaken or unjustified deprivation of rights guaranteed by both Texas’ and the United States’ constitutions,” court records state.

Methodist answered with a filing that said if the high court wanted to address the law’s constitutionality, “and even if it decides to do so in the absence of any deprivation of life-prolonging care, it should wait for a different case – a case involving a state actor rather than a private hospital and a case in which due process was strictly limited to what [the law] requires. Much more due process than that was given to [Ms. Kelly] and her son.”

The Supreme Court denied Ms. Kelly’s requests for review.

Repeated challenges

Dr. Fine says opponents of the law have routinely tried to eliminate or undermine it since 2003. One recent example was Senate Bill 2089 in the 2019 session of the Texas Legislature, which would have required hospitals to treat an end-of-life patient until a transfer to another facility occurred. TMA members responded to an urgent call from the association to oppose and help ultimately defeat the bill.

Despite opponents’ attempts to amend or eliminate the ethics-committee process, Dr. Fine says it has remained effective.

“They’ve tried everything from just totally eliminating the dispute resolution process, to changing the time to search for an alternative willing provider, to everything from months to, ‘You can never transfer. You can never stop treatment at all.’ They’ve tried all kinds of ways to undermine the law,” Dr. Fine said. “And the question that I think they’ve never had an answer to is: Is there ever a time when it’s appropriate for a physician advocating for her patient to resist a family’s request? And [opponents] seem to say no, [that] the family gets to do what I call practice medicine.

“TMA understands that’s not good. The THA understands that’s not good. The Texas Catholic bishops understand that’s not good. The Texas Alliance for Life understands that’s not good.”


Tex Med. 2020;116(2):22-23
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Last Updated On

February 18, 2020

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Court Cases | End of Life Care | Legal

Joey Berlin

Associate Editor

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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