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Incompetent Decisionmakers and Withdrawal of Life-Sustaining Treatment: A Case Study

Published online by Cambridge University Press:  01 January 2021

Lance Lightfoot
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Extract

One of the most challenging and rewarding roles for in-house hospital attorneys is serving as a member of their hospital’s Bioethics Committee (the “Committee”). As a member of the Committee, an attorney assists in developing institutional ethics policies and guidelines, and also participates in ethics consultations involving disputes about patient care. Institutions such as the Author’s employer, Texas Children’s Hospital, promote open and honest communications between members of a patient’s health care team and the patient’s parents and family; however, when communications break down, the Committee’s goal is to provide an objective forum where disputes can be discussed and hopefully resolved in a professional, ethical manner.

Type
The Ethical Health Lawyer
Information
Journal of Law, Medicine & Ethics , Volume 33 , Issue 4 , Winter 2005 , pp. 851 - 856
Copyright
Copyright © American Society of Law, Medicine and Ethics 2005

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References

The facts set forth in this article are based on the Author's personal involvement in the case.Google Scholar
Tex. Health & Safety Code Ann. §166.046.Google Scholar
See Belluck, P., “Even as Doctors Say Enough, Families Fight to Prolong Life,” N.Y. Times, March 27, 2005, at <http://www.nytimes.com/2005/03/27/national/27death.html?ex=1128657600&en=110b345a3a233196&ei=5070> (last visited October 5, 2005) (discussing Sun's case along with other end-of-life disputes in Salt Lake City, Boston and Orlando that recently ended up in the courts); Dionne, E. J. Jr., “A Thin View of ‘Life,’” The Washington Post, March 25, 2005, at A19; Alter, J., “Take a Look in the Mirror,” Newsweek, April 4, 2005, at 29 (in which the author characterizes Sun's case as “the first time ever that a court has allowed bean counters to override the wishes of parents”).+(last+visited+October+5,+2005)+(discussing+Sun's+case+along+with+other+end-of-life+disputes+in+Salt+Lake+City,+Boston+and+Orlando+that+recently+ended+up+in+the+courts);+Dionne,+E.+J.+Jr.,+“A+Thin+View+of+‘Life,’”+The+Washington+Post,+March+25,+2005,+at+A19;+Alter,+J.,+“Take+a+Look+in+the+Mirror,”+Newsweek,+April+4,+2005,+at+29+(in+which+the+author+characterizes+Sun's+case+as+“the+first+time+ever+that+a+court+has+allowed+bean+counters+to+override+the+wishes+of+parents”).>Google Scholar
See Tex. Health & Safety Code Ann. §166.031(2) (“Qualified patient” for withdrawal of care means a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician”). A “terminal condition” under the Act is defined as “an incurable condition caused by injury, disease or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of care. Tex. Health & Safety Code Ann. §166.002(13); An “irreversible condition” under the Act is defined as “a condition, injury, or illness (A) that may be treated but is never cured or eliminated; (B) that leaves a person unable to care for or make decisions for the person's own self; and (C) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.” Tex. Health & Safety Code Ann. §166.002(9).Google Scholar
See MedicineNet.com, Definition of Dysplasia, Thanatophoric, at <www.medterms.com/seript/main/art.asp?articlekey=9729> (last visited September 14, 2005) (“Thanatophoric dysplasia, also called thanatophoric dwarfism, was discovered in 1967 by Pierre Maroteaux and his coworkers who used the Greek term “thanatophoric” meaning death-bringing).+(last+visited+September+14,+2005)+(“Thanatophoric+dysplasia,+also+called+thanatophoric+dwarfism,+was+discovered+in+1967+by+Pierre+Maroteaux+and+his+coworkers+who+used+the+Greek+term+“thanatophoric”+meaning+death-bringing).>Google Scholar
See Baker, K., Olson, D., Harding, C. and Pauli, R., “Long-Term Survival in Typical Thanatophoric Dysplasia Type 1,” American Journal of Medical Genetics 70 (1997): 427–36 (stating most affected individuals die of respiratory insufficiency in the first hours or days of life, with the respiratory insufficiency being linked to a small chest cavity and lung hypoplasia).3.0.CO;2-J>CrossRefGoogle Scholar
Tex. Health & Safety Code Ann. §§166.001–166.Google Scholar
See Tex. Health & Safety Code Ann. §166.046(a)-(e-1).Google Scholar
Tex. Health & Safety Code Ann. §166.046(a).Google Scholar
Tex. Health & Safety Code Ann. §166.046(b)(2).Google Scholar
Tex. Health & Safety Code Ann. §166.046(b)(4)(A).Google Scholar
Tex. Health & Safety Code Ann. §166.046(b)(4)(B).Google Scholar
Tex. Health & Safety Code Ann. §166.046(d).Google Scholar
See Tex. Health & Safety Code Ann. §166.046(e).Google Scholar
See id.; Tex. Health & Safety Code Ann. §166.046(g).Google Scholar
See Tex. Health & Safety Code Ann. §166.044(a)-(c).Google Scholar
See Tex. Health & Safety Code Ann. §166.035. (“The following persons may execute a directive on behalf of a qualified patient who is younger than 18 years of age: (1) the patient's spouse, if the spouse is an adult; (2) the patient's parents; or (3) the patient's legal guardian”).Google Scholar
One would logically assume that only the decisions of competent decision-makers carry weight under the Advance Directives Act, but nowhere within the statute is that assumption expressed.Google Scholar
See Tex. Fam. Code §261.101.Google Scholar
See Tex. Hum. Res. Code §48.001.Google Scholar
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Wanda Hudson, as the Mother of Sun v. Texas Children's Hospital, 2004–66483 (333rd Judicial District, Harris County, Texas, filed November 23, 2004). For jurisdictional reasons, Ms. Hudson's attorney subsequently dismissed this case filed in the State District Court and re-filed in the Harris County, Texas, Probate Court. See Wanda Hudson, as the Mother of Sun v. Texas Children's Hospital, No. 352,526 (Probate Ct. No. Four, Harris County, Texas, filed Dec. 29, 2004).Google Scholar
Tex. Health & Safety Code Ann. §166.046(g); Final Order Denying Plaintiff's Request for an Extension of Time Under the Health & Safety Code Section 166.046(g) and Denying Plaintiff's Motion for a New Trial and to Reconsider Ruling Granting Defendant's Special Exceptions. Wanda Hudson, as the Mother of Sun v. Texas Children's Hospital, No. 352,526 (Probate Court No. Four, Harris County, Texas, March 14, 2005).Google Scholar
It is quite easy to imagine a scenario where an elderly man has a stroke and afterwards is deemed to have an irreversible condition under the Texas Advance Directives Act but where his wife, also elderly, is suffering from early dementia and gets confused whenever anyone speaks to her about her husband's medical condition, particularly if the couple has no children or other relatives available to assist in the decisionmaking process.Google Scholar
See Tex. Health & Safety Code Ann. §166.002(4).Google Scholar
See, e.g., 325 Ill. Comp. Stat. 5/5 (“An officer of a local law enforcement agency, designated employee of the Department, or a physician treating a child may take or retain temporary protective custody of the child without the consent of the person responsible for the child's welfare, if (1) he has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the child's welfare without endangering the child's health or safety; and (2) there is not time to apply for a court order under the Juvenile Court Act of 1987 for temporary custody of the child”); Iowa Code § 232.79 (allowing a physician to take the child into custody if the child is in a circumstance or condition that presents an imminent danger to the child's life or health, and, if there is not enough time to apply for an order).Google Scholar
See, e.g., 325 Ill. Comp. Stat. 5/5 (providing that “[a]ny physician authorized and acting in good faith and in accordance with acceptable medical practice in the treatment of a child under this Section shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of granting permission for emergency treatment”).Google Scholar
See Martz, R., “Georgia's Forgotten Children: Doctors' Support Helps Push Terrell's Law' on Fast Track,” The Atlanta Journal-Constitution, Feb. 7, 2000, at El. (stating that “[i]n Illinois, which also permits child protective service workers to take temporary custody of children who are victims of suspected abuse, officials said that in fiscal year 1998, of 6,698 children taken into protective custody, 167 were done by doctors. In fiscal year 1999, of 6,462 children taken into protective custody, 129 were done by doctors”).Google Scholar