Difficult Situations
By Joey Berlin Texas Medicine December 2017

Judge's Ruling Upholds Advance Directives Law After TMA Expresses Support

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Law Feature — December 2017

Tex Med. 2017;113(12):37-42.

By Joey Berlin
Associate Editor

Fort Worth internal medicine physician Stuart Pickell, MD, knows what it's like to help decide a dispute between a family desperate for their loved one's survival and a physician determined to do no harm.

Dr. Pickell sits on two hospital ethics committees, which sometimes find themselves in the difficult position of determining whether it's medically appropriate to start or sustain treatment to prolong a patient's life.

In those situations, the committee hears from the patient's care team and the patient's family in an effort to reach common ground. The family likely wants to exhaust every option, but physicians and other care team members could be concerned that an intervention would prolong the patient's suffering, which strays from a physician's ethical boundaries. 

The patient's family is at a disadvantage, Dr. Pickell says, because "they don't know the medical dimensions of it. All they know is that the person they love is very sick."

"It's always hard, because most people want to make other people happy," said Dr. Pickell, who's also chair of the Tarrant County Medical Society Ethics Consortium. "You're in a situation where it's essentially impossible to make everybody happy."

At its core, end-of-life care is one of the most difficult topics in medicine, particularly when circumstances push a doctor and the patient, or the patient's family, to an emotional and philosophical standoff. 

The Texas Advance Directives Act tries to make the decision easier by reconciling the wishes of a patient or the patient's health care decider with the ethical duties of a physician, among other things.

A constitutional challenge to the Advance Directives Act, filed by a woman whose son, Chris Dunn, died at Houston Methodist Hospital in 2015, brought that issue to the fore. Evelyn Kelly sued Methodist after she and the hospital's care team became locked in a dispute over whether to withdraw life-sustaining treatment, which her son ultimately received until his death. Still, Ms. Kelly filed suit claiming the medical futility section of the Advance Directives Act ― which allows a physician to potentially withdraw such treatment without risking liability ― violated her son's due-process rights, as well as hers.

In September, a Harris County district judge threw out Ms. Kelly's lawsuit. The judge's decision came after the Texas Medical Association, the Texas Alliance for Patient Access (TAPA), and other organizations, including several antiabortion groups, submitted a friend-of-the-court brief defending the Advance Directives Act as constitutional.

The case unavoidably touched on the ethical considerations inherent in the Advance Directives Act, but TMA and the other organizations also wanted to keep any changes to a law in the hands of the legislature and not the judicial system.

"This statute was passed back in 1999. It was thoroughly vetted and discussed by all the stakeholders, from health care providers [to] right-to-life persons and organizations," said Brian Jackson, general counsel for TAPA. "But most importantly, it was part of a legislative process that created a law that helped define the obligations and responsibilities of health care providers and patients when we reached end-of-life decisions.

"Any change to that law should occur through the legislative process."

The Challenge to the Law

The medical futility law covers situations in which a physician believes life-sustaining treatment would exacerbate or extend a patient's suffering, and refuses to start or continue that treatment contrary to the wishes of the patient or someone else making the patient's health care decisions. At that point, the law says the doctor can present the case to an ethics committee. If the ethics committee agrees with the doctor that the treatment is medically inappropriate, the physician must make "a reasonable effort" to transfer the patient to another facility within 10 days. Then, the physician would be immune from civil and criminal liability for withholding or stopping treatment.

Dr. Pickell says through his work on ethics committees, he's been involved in cases "where we believed it was in the best interest of the patient to withdraw care, and the family was against it." But in the few cases he's been involved in where that happened, Dr. Pickell says, he doesn't recall treatment ever being withdrawn against a family's wishes; the patient died during the deliberation, the family changed its mind and voluntarily permitted withdrawing the treatment, or the patient was transferred to another facility.

"If the patient's treatment wasn't futile, physicians and families should have no difficulty finding somebody to take over," said Dr. Pickell. "The problem is that in the medical community, generally, [these cases] are going to be universally understood to be futile, and that's why they refuse to accept them."

According to Ms. Kelly's court filings, her son was admitted to Methodist on Oct. 12, 2015, to treat an "unidentified mass on his pancreas which caused damage to other organs." Methodist says in its filings that Mr. Dunn was diagnosed with end-stage liver disease, a malignant pancreatic neoplasm, acute renal failure, sepsis, acute respiratory failure, multi-organ failure, and other illnesses. The admitting physician, Aditya Uppalapati, MD, told Mr. Dunn's family his condition was "irreversible and progressively terminal," Methodist claims in its court filings.

Methodist began giving Mr. Dunn life-sustaining treatment, but his treating physicians eventually concluded the treatment was making him suffer. They recommended to his divorced parents withdrawing that treatment in favor of palliative or comfort care only. According to Methodist's filings, Mr. Dunn's father agreed, but Evelyn Kelly did not.

On Nov. 10, 2015, according to court filings, Methodist informed Ms. Kelly and Mr. Dunn that the hospital would seek to discontinue the life-sustaining treatment. Three days later, the hospital's ethics committee agreed with the care team. But attorneys representing the patient initiated legal action, and the hospital, according to its court filings, voluntarily agreed to a temporary restraining order to continue the life-sustaining treatment.

In its court filings, Methodist says it's undisputed that the life-sustaining treatment for Mr. Dunn continued until his death on Dec. 23, 2015. On that day, Ms. Kelly released a statement thanking Methodist for "continuing life-sustaining treatment for Chris until his natural death." Her statement also vowed "to continue the fight against this horrible law."

Ms. Kelly's lawsuit claims the Advance Directives Act "allows doctors and hospitals the absolute authority and unfettered discretion to terminate life-sustaining treatment of any patient, despite the existence of an [advance] directive, valid medical power of attorney, medical decision determined by a surrogate … or expressed patient decision to the contrary."

The suit claims the hospital "prematurely applied the procedures" outlined in the statute.

"Procedural due process expresses the fundamental idea that people, as opposed to things, at least are entitled to be consulted about what is done to them," a court filing for Ms. Kelly said. It also says the statute "specifically applies to not only the individual receiving treatment, but the person 'responsible for the health care decision of the individual.'"

Mr. Dunn lived with his mother when he was admitted to the hospital and had no spouse or children, the suit notes. Ms. Kelly "received both little and inadequate notice" that Methodist's ethics committee was hearing the recommendation to discontinue the life-sustaining treatment, her suit claims.

"She did not have the right to speak at the meeting, present evidence or otherwise seek adequate review. … Thus, as a person to whom the statute applied, the statute only permits Kelly to sit and watch as an ethics committee determines it is appropriate to remove the life-sustaining treatment of her son; as such, Kelly's right to due process was violated," Ms. Kelly's side claimed in the lawsuit.

Attorneys for Ms. Kelly and Methodist told Texas Medicine they couldn't comment on the case. Texas Right to Life, which publicly backed Ms. Kelly in her fight to keep her son alive and in the subsequent lawsuit, did not return a call requesting comment.

Judge Sides With TMA

TMA joined a friend-of-the-court brief with TAPA, the Texas Catholic Conference of Bishops, the Texas Hospital Association, and other organizations, including antiabortion groups. The brief said medical futility laws, such as the Advance Directives Act, are "necessary to maintain the integrity of the medical profession."

"Doctors believe that being forced to provide medically futile treatment threatens the proper and ethical practice of medicine," the amicus brief said. "Patients' and families' wishes are entitled to substantial deference, (but) they do not negate medical judgment or conscience. Doctors must consider whether a given treatment will help or harm the patient."

TMA's brief also noted it's rare that the Texas law results in discontinuing life-sustaining intervention against the wishes of a patient or patient representative. For example, a Texas Hospital Association survey of 202 hospitals, covering almost 4 million patients between 2007 and 2011, found that no patients were deprived of life-sustaining treatment against the wishes of the patient or patient's family. In the cases in that survey, the ethics committee section of the Advance Directives Act was invoked only 30 times. Several cases resulted in the patient being transferred, while in others, "the process caused the physician or the family to reassess their position. Much of the time, the patient passed naturally while the process was in motion."

TMA and the other organizations further argued that the section of law at issue is constitutional and consistent with guarantees of due process. Someone must prove state action to establish a constitutional violation, the amicus said, and a "private physician's treatment does not constitute state action."

The law being challenged, TMA and the other organizations wrote, is "designed to resolve otherwise-intractable end-of-life disputes. In almost every case ― including this one ― it does so without violating patient wishes. If reform is necessary, it should take place in a legislative venue."

Harris County Judge Bill Burke tossed out the lawsuit in late September. According to a report in the Houston Chronicle, Judge Burke said repealing the law would be "a case of throwing the baby out with the bath water." He echoed the argument of TMA's brief in saying any potential fix to the law needed to come legislatively. Judge Burke also said Methodist provided everything the law required, so it didn't violate Mr. Dunn's due process.

"It would be a big mistake to throw out a statute in place for nearly 20 years that seems to be working pretty well," Judge Burke said, according to the Chronicle. "If you think the law doesn't provide sufficient protection for patients, go to the legislature to remedy it."

TMA President Carlos J. Cardenas, MD, applauded Judge Burke's ruling, saying it "upholds a law that reinforces physicians' professional and ethical responsibility always to put our patients' best interests first."

Texas Right to Life General Counsel Emily Cook said after the ruling, "This statute deprives patients of procedural due process, and hospitalized patients with disabilities are the most at risk. Texas should be adding extra protections to patients, not robbing them of civil liberties."

Jennifer Carr Allmon, executive director of the Texas Catholic Conference of Bishops, told Texas Medicine the Catholic Church believes it's important to strike the right balance between patient rights and physician rights with regard to patient care. The law as written provides that balance, she says, and the Catholic Conference of Bishops has defended the Advance Directives Act in legislative challenges in the past. The organization signed on to the brief with TMA to defend it in the court system as well.

"A patient can't demand a treatment that's inappropriate," Ms. Allmon said. "I can't walk into my doctor's office today and demand chemotherapy when I don't have cancer. The patient doesn't practice medicine, the physician does. … In moral theology terms, there's a moral actor in this scenario of health care delivery. They're the ones who have to do it.

"So if a patient wants something that a physician believes is unethical and immoral, the physician has a right not to engage in that act ― especially when the Advance Directives Act allows the transfer and requires the hospital and physician to facilitate transfer to a willing provider if one can be found."

After Judge Burke threw out the case, Ms. Kelly told the Chronicle she planned to appeal. 

Preventing Wrenching Disputes

Dr. Pickell says invoking the medical futility statute is rare, but "you always have some situations … that are futile." He chairs the Medical Orders for Scope of Treatment (MOST) Coalition, the Texas version of the national Physician Orders for Life-Sustaining Treatment. The groups work to document and honor the treatment wishes of seriously ill patients, with an emphasis on advance care planning and shared decisionmaking among the patients, their loved ones, and their health care practitioners. (See "TMA Policy on MOST Documents.")

As the Chronicle noted, Ms. Kelly's attorney argued that the Advance Directives Act does not define medical futility, which Dr. Pickell says is true.

"I think the courts have intentionally avoided going there, choosing instead to defer decisions of medical futility to medical professionals," Dr. Pickell said. "The problem is that patients don't always see it that way. So what's futile to the patient might be very different from what physicians would consider futile."

Judge Burke's final written order dismissed the case based on Methodist's argument that Mr. Dunn's death had rendered the case moot. The two-page order didn't discuss the constitutionality of the law. Because of that, Mr. Jackson of TAPA says he could see a scenario "where we have another judicial challenge, because the judge did not have to make a ruling" on the law's constitutionality.

Dr. Pickell says the MOST Coalition and its emphasis on advance care planning are important because "we don't really know what patients want if we don't have meaningful conversations ahead of time."

"The bottom line for me is that just because we have the ability to postpone death doesn't mean that we should," he said. "I think we need to seek more clarity as to what medical futility means, or at least communicate it better to patients and their families. But I also think that [physicians] must understand that … grieving families who want to keep their loved ones alive no matter what may have a very different understanding of what 'futile' is."

Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.

Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.

SIDEBAR

New DNR Law Takes Effect in April 2018

This summer, the Texas Legislature's special session brought a change to the state's Advance Directives Act. Senate Bill 11 by Sen. Charles Perry (R-Lubbock) will restrict the circumstances in which a physician may issue a do-not-resuscitate (DNR) order in a hospital or facility. 

For a DNR order to be valid per the new law, it must be issued by the patient's attending physician and must: 

  • Comply with a legally valid directive or treatment decision regarding the patient's care, such as the patient's own written or oral directions, or the directions of a patient's legal guardian under medical power of attorney, or
  • Not go against the directions of a patient who was competent when he or she conveyed those directions, and must be in accordance with the physician's belief that the patient's death is imminent and the DNR order is medically appropriate. 

SB 11 takes effect on April 1, 2018. We'll have more on the new law in the March issue of Texas Medicine.

SIDEBAR

TMA Policy on MOST Documents

TMA policy supports the use of a Medical Orders for Scope of Treatment (MOST) document that is: 

  • A written expression of the unique values and goals of a patient in relation to medical care, expressed by a patient or a surrogate decisionmaker;
  • Produced as a product of a conversation with a physician, a midlevel provider under appropriate supervision and delegation, or another person who is properly trained to conduct the conversation;
  • Signed by the patient or, if the patient lacks capacity, by the patient's surrogate decisionmaker(s);
  • Verified and signed by a physician (or midlevel provider under proper delegation) who has established that the patient or surrogate understands and agrees with the form contents;
  • Reevaluated periodically and when there is a change in the patient's status;
  • A guide concerning patient wishes for medical care to be used by any medical caregiver, but does not override any physician's independent clinical decisionmaking; and
  • Not legislatively mandated or modified in any way.  

Back to article

SIDEBAR

Advance Care Planning Education From TMA

Advance Care Planning: Guide to Legal Forms, a TMA publication, helps physicians become familiar with the documentation needed to protect a patient and make sure his or her living wishes are carried out. Advance Care Planning includes the following forms with additional information on each: 

  • Directive to Physicians and Family or Surrogates;
  • Out-of-Hospital Do-Not-Resuscitate Order;
  • Medical Power of Attorney Designation of Health Care Agent;
  • Authorization Agreement for Nonparent Relative;
  • HIPAA Release of Information Authorization;
  • Statutory Durable Power of Attorney;
  • Declaration of Guardian in the Event of Later Incapacity or Need of Guardian; and
  • Declaration of Appointment of Guardian for My Child(ren) in the Event of My Death or Incapacity. 

Physicians will receive 1 AMA PRA Category 1 Credit™ and 1 credit in medical ethics upon reading the publication and completing a post-test and course evaluation. 

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Last Updated On

January 17, 2018

Joey Berlin

Associate Editor

(512) 370-1393
JoeyBerlinSQ

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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