Duc in Altum

There are currently two women in the state of Texas who are living under a sentence of death. Neither has committed a crime. Neither are they currently incarcerated. Instead, they are guilty of requiring medical care which their physicians have determined should no longer be provided them despite their own wishes and the wishes of their family members.

There is a provision under Texas law which allows hospitals to refuse to give care despite the expressed desires of the patient and their families. In both of these women's cases, the hospitals have invoked these law provisions to decide that within ten days of the hospitals' decisions, the care will either be suspended or the patients will have been moved to other facilities.

The more widely known case is that of Andrea Clark who has been a patient of St. Luke's in Houston since November of last year. In January of this year she underwent open-heart surgery, and in February she began bleeding in her head. She currently requires a respirator and dialysis. However, she is not terminally ill, and her health care is being provided through her own private insurance. The attending physician has determined that continued care is futile. Under the provisions of the Futile Care Law, the physician's decision was reviewed by a hospital ethics committee who agreed with the decision.

Under Chapter 166 of the Texas Health and Safety Code, if an attending physician disagrees with a surrogate over a life-and-death treatment decision, there must be an ethics committee consultation (with notice to the surrogate and an opportunity to participate). In a futility case such as Andrea's in which the treatment team is seeking to stop treatment deemed to be non-beneficial, if the ethics committee agrees with the team, the hospital will be authorized to discontinue the disputed treatment (after a 10-day delay, during which the hospital must help try to find a facility that will accept a transfer of the patient). These provisions, which were added to Texas law in 1999, originally applied only to adult patients. In 2003, they were made applicable to disputes over treatment decisions for or on behalf of minors. One of the co-drafters in both 1999 and 2003 was the National Right to Life Committee. Witnesses who testified in support of the bill in 1999 included representatives of National Right to Life, Texas Right to Life, and the Hemlock Society. The bill passed both houses, unanimously, both years, and the 1999 law was signed by then Governor George W. Bush. The statute was designed to keep these cases out of court. Source

However, provisions in the law also require that the hospital and the attending physician assist in any type of transfer of the patient. The family of Andrea Clark, indicate that hospital has not cooperated in their efforts to have Andrea transferred.

Clark's sisters, Lanore Dixon and Melanie Childers, point out that under a little known Texas law, a self-appointed ethics committee can decide to forcibly remove care from a patient. Once that decision is made, the patient and family have 10 days to find another hospital to provide care for their family member.

But they say the law also requires that the attending physician help with the transfer which they say hasn't been done in Andrea's case. They say that the hospital has unlawfully and unjustly transferred responsibility to them, a denial of due process.
...
Houston hospitals have a policy in that once the medical treatment of a patient has been deemed "medically futile" no other hospital in the area will accept transfer of that patient to their facility. This means that the patient, who is usually in a very delicate condition anyway, has to be transported over a long distance, in order to receive care, her sister explains.

When asked if Andrea is capable of being transferred to another facility, the hospital hedges but reluctantly admits that she could be, according to the sisters. Hospital representatives will not discuss the case with media.
Source

Andrea's family and Andrea herself have expressed her desire to live.

Family members say that even though their sister can't speak, they know her wish is to live. They say that she can communicate by moving her lips and blinking her eyes.

"If their ethics committee makes a decision, it doesn't matter what the patient wants," Dixon said. "It doesn't even apparently matter what the patient's condition is, because our sister is not in a coma, she's not brain dead," Dixon said.
...
"Andrea, until a few days ago, when the physicians decided to increase her pain medication and anesthetize her into unconsciousness, was fully able to make her own medical decisions and had decided that she wanted life saving treatment until she dies naturally", Childers said. "We have learned that this is part of the process, when hospitals decided to declare the "medical futility" of continuing treatment for a patient.

"Andrea, when she is not medicated into unconsciousness (and even when she is, and the medication has worn off to some degree) is aware and cognizant", her sister said. "She has suffered no brain damage to the parts of her brain responsible for thought and reason or speech. She has only suffered loss of some motor control. The reason that the physician gave to medicate her so much is that she is suffering from intractable pain in the sacral region (in other words, she has a bedsore that causes her pain). This is not reason enough, in our books, and we are trying, as we speak, to get Andrea's medication lowered so that she can speak to us.

"There is also some disagreement as well as to whether Andrea is really in that much pain. When she is not medicated to this degree, and she sees her son, Charles, she smiles. She also mouths words (Andrea is very vocal, normally, even with a trach, and asks for food, etc., when she is not overly medicated) Andrea has voiced her wishes, over and over again, an d if she were not on so much pain medication, she would voice them again", Melanie says. Source

Another woman, Yelang Vo, finds herself in the same straits. According to Jerri Lynn Ward of the Texas Advance Directives Blog,

Ms. Vo is in her 60's. She is a patient at St. David's North
Austin Medical Center here in Austin, Texas. She has been diagnosed with persistent vegetative state--but that is disputed by the family. Ms. Vo's daughter, Loann Trihn, is an emergency room doctor and she disputes the diagnosis. Such a diagnosis is very subjective and involves clinical assessments. Dr. Trihn and her father have both witnessed her mother being responsive.

The attending physician wishes to withdraw dialysis, That is not acceptable to the family--and it against the express wishes of the patient expressed before she became unable to communicate. Ms. Vo needs a new shunt surgically implanted for her dialysis. She is receiving it by a different means at the present. The physician, apparently, does not believe that her state of life justifies the surgery.

Withdrawal of dialysis with no further attempt at creating a surgical access port not only condemns Ms. Vo to a rapid and untimely death, but prevents any initiation of dialysis on an outpatient basis should her sepsis be successfully treated and maximum medical improvement be obtained. The family have all observed signs that the mother retains certain cognitive abilities which may well improve with continued treatment. Removing dialysis is a preemptive and premature act which deprives her of a more natural path toward a peaceful end of life and is contrary to her expressed wishes to fight with all her strength until her time has come. Dialysis is no longer an extreme procedure and is performed for many patients on a routine outpatient basis and can in some case be self administered. To deny such a service in a critically ill patient without family consent and access to judicial due process is ethically, morally and very possibly legally wrong. The care for this lady should continue according to the highest current medical standard. Source

Ms. Vo is facing the same problem that she would require a transfer to a distant medical facility.

The irony in this is, of course, how the law that is being used to provide cover for those who are taking the lives of these two women was supported by pro-life organizations and unanimously passed by both Texas houses and signed into law by then Governor Bush. In other words, a great number of people who thought they were doing a good thing to keep these type of health care disputes out of courts have given the power to hospitals, doctors, and insurance companies to determine whether people should receive adequate care or not. As these two cases illustrate, the law has actually stripped away a patient's protection from those who would want to deny them adequate care. Patients now find themselves in the hands of people who seem far more concerned about costs than about people. Clearly, the supporters of this law did not read the language very carefully. Or perhaps some, such as the Hemlock Society, who testified in support of the law, did understand the implications of the law. Because what the law does is provide just yet one more inroad for euthanasia.

H/T: Blogs for Terri