By Devin McDonough
A Texas district court recently decided that Tinslee Lewis, an eleven-month-old baby girl, can be removed from life support at Cook Children’s Medical Center in Fort Worth – against her family’s wishes. The Texas Advance Directives Act (Tex. Health & Safety Code Ann. § 166.046), or the “10-day rule”, stipulates that healthcare providers may cease life-sustaining treatment after ten days if another hospital is unable to treat the patient. The controversial rule has recently drawn much ire, as it is seen to strip parents of their decision-making ability.
Tinslee Lewis has been hospitalized since birth and suffers from a rare heart defect called Ebstein’s anomaly, chronic lung disease, severe chronic high blood pressure and acute systolic heart failure. A ventilator helps her breathe. Due to these health conditions, doctors and nurses believe she is in pain. Originally, her doctors intended to remove Tinslee from life support on November 10, 2019, after the 10-day rule had expired. Tinslee’s family filed an emergency motion to ensure maintain Tinslee’s care while an appeal of the District Court’s decision is ongoing, and the hospital stated it would wait seven days before ceasing care to allow Tinslee’s mother to appeal the decision. Among Tinslee’s advocates are Texas Governor Greg Abbot and Attorney General Ken Paxton, who released a statement stating: “The case of Tinslee Lewis is complex and heartbreaking, and the state will continue to support Ms. Lewis’s exhaustion of all legal options to ensure that Tinslee is given every chance at life.” The Texas Second Court of Appeals will hear oral arguments on February 4, 2020.
The hospital was acting pursuant to the 10-day rule, which has come under fire in light of Tinslee’s case. The law was created through collaborative effort, where legislators, lawyers, doctors, and pro-life groups worked in a task force to create the law. Per the statute, if doctors and their patient or the patient’s caregiver disagree as to the continuation of life-sustaining medical treatment, the hospital’s ethics committee may hear the disagreement. If the ethics committee agrees with the doctor, the 10-day rule may commence. Ultimately, if neither the hospital nor the patient’s caregiver can find a hospital to care for the patient and a court does not grant an extension, medical treatment can be terminated. Tinslee’s is the most recent case challenging the 10-day rule.
In 2018, Cook Children’s Medical Center was again involved in one of these cases, where nine-year-old Payton Summons was declared brain-dead by her doctors before going into cardiac arrest. Physicians wanted to take her off life support on October 1, but a court order sought by her parents held off the hospital. Payton’s parents were granted an extension to find another hospital to continue Payton’s treatment, but Payton passed away just after the decision was handed down.
In September 2004, Sun Hudson was born with a rare and lethal form of dwarfism known as thanatophoric dysplasia. Sun’s doctor brought his case before Texas Children’s Hospital’s Biomedical Ethics Committee, arguing that Sun’s case constituted “futile treatment.” A temporary injunction was brought against the hospital, where the hospital was ordered to maintain providing treatment to Sun. The injunction lasted five months until a judge determined that there was “no reasonable expectation” another provider would continue treatment for him, and the hospital terminated Sun’s treatment the following day.
Unfortunately for patients and their families, the 10-day rule is a rather insular rule – all the procedures that terminate a hospital’s responsibility of providing life-sustaining treatment are housed there. There is no mention as to whether the patient is entitled to any outside representation, and the only option a patient or caregiver has at stopping the decision of the committee is found within section (g), where a court may grant an extension of time. Furthermore, while section (a) states the patient’s attending physician is not permitted to serve as a member on the committee regarding that particular patient, the ethics committee is constructed by employees of the hospital itself. The glaring bias – particularly where this statute was implemented to isolate doctors from liability by following the procedures of the statute – does not appear to be met with any restrictions other than the attending physician’s required absence from the committee. So as to protect the best interest of the patient, there should be some sort of check on the neutrality of at least some of the members of the ethics committee, whether they be physicians from varying hospitals or even an attorney who may be considered an expert in ethics.
Additionally, the 10-day rule arguably leaves patients and caregivers living in lower income communities with very few options. If there are limited resources for hospitals, it may be unlikely any nearby hospital would be able or willing to take the patient. Patients and their families could also lack the resources to petition a court to have the 10 days extended, and therefore be at the mercy of an ethics committee’s decision.
These Texas cases illuminate the reality where a caregiver or surrogate and the health care provider’s idea of what is best for the patient greatly differ. Caregivers and surrogates perhaps hold out for a miracle or believe the prognosis is not as dire as doctors have described. Unfortunately, there are times where physicians and hospitals try every method of treatment for a patient and believe it to be evident the patient will never recover, rendering such treatment futile. Regardless of where one may fall in the argument, at the center of this one is a baby girl and one can only hope the best decision is made for her.
Devin McDonough is a third-year day student at Suffolk Law. A native Bostonian, Devin works as a law clerk at a Boston boutique civil litigation firm, a practice area she hopes to continue professionally.
Sources
Tex. Health & Safety Code Ann. § 166.046
Marisa Iati, “Judge rules that doctors can take baby off life support against mother’s wishes.” The Washington Post. January 3, 2020 (7:58PM)
Office of the Texas Governor, “Governor Abbott, Attorney General Paxton Release Joint Statement Regarding Case of Tinslee Lewis.” January 2, 2020
Jamie Stengle, “Spotlight on Texas’ ’10-day rule’ in life support cases.” Associated Press. November 13, 2019. https://apnews.com/442abb92a9d74e8e8d1aba57fd6e890a
Associated Press. “Girl dies after court allows more time on life support.” October 19, 2018.
https://apnews.com/87972618952d43ab827206fff9d491c9
NBCDFW. “Tinslee Lewis Case Headed for Court of Appeals Next Week.” Last updated on January 28, 2020 at 3:15 AM
https://www.nbcdfw.com/local-2/tinslee-lewis-case-headed-for-court-of-appeals-next-week/2299396/
Lance Lightfoot. The Ethical Health Lawyer: Incompetent Decisionmakers and Withdrawal of Life-Sustaining Treatment: A Case Study, 33 J.L. Med. & Ethics 851 (2005)
Dr. Amir Halevy and Amy L. McGuire. The History, Successes and Controversies of the Texas “Futility” Policy, 43 Houston Lawyer 38 (2006)
Nora O’Callaghan. Dying for Due Process: The Unconstitutional Medical Futility Provision of the Texas Advance Directives Act, 60 Baylor L. Rev. 527 (2008)
Thaddeus Mason Pope. Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment, 75 Tenn. L. Rev. 1 (2007)
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.