| In March 2005, the Fourteenth Court of Appeals decided a case concerning the Act, Nikolouzos v. St. Luke's Episcopal Hospital, 162 S.W.3d 678 (Tex.App. - Houston [14th] 2005). Spiro Nikolouzos, through his wife, had sought a temporary restraining order to stop St. Luke's Episcopal Hospital from ending his life-sustaining treatment as it could under the Act. The court at the trial level declined to issue the restraining order, and the court of appeals in Houston subsequently held that it did not have jurisdiction to review the trial court's order. The Nikolouzos' found no relief in this instance.
In a concurring opinion in that case, Justice Fowler of the Court of Appeals provided an illuminating guide as to how this law was applied in this case to deny the Nikolouzos' family the relief they sought.
In trying to obtain the restraining order to stop the hospital from ceasing her husband's treatment, Ms. Nikolouzos presented two separate affidavits to the court stating that she felt that there were "doctors and hospitals who will be willing to continue treatment for Spiro if sufficient time is given to adequately contact all relevant parties," and that she had contacted a nursing home in San Antonio, and that a social worker there had informed her that it looked likely that her husband would be accepted there as a resident. Nikolouzos, 162 S.W.3d at 682. Ms. Nikolouzos also attached a letter from a doctor stating that her husband did not meet the criteria for brain death. Id. The trial court did not accept these as proof that the plaintiff would be accepted to another facility; in fact, it was also presented with evidence that the nursing home in San Antonio would not accept Mr. Nikolouzos because his Medicare eligibility would be reduced to 80% coverage within two days. Id. at 683. Further, no doctor would release Mr. Nikolouzos to home care with a home-based ventilator. Id. The court also ruled that the issue of brain death was irrelevant under the law as written.
Justice Fowler, while noting the trial court's consideration of and rulings on the evidence with approval, then issued scathing language concerning the statute itself:
"This leads me to my second point. This statute is replete with procedural problems that threaten to sabotage a family's attempt to obtain additional time under section 166. 046(g) to locate alternate care for its loved one. The problems all stem from lack of specificity in the statute and could be rectified if the legislature chose to be as specific in this statute as it has been, for example, with the procedures a minor must follow to obtain an abortion without notification to one of her parents. TEX. FAM.CODE §§ 33.001 et seq. This subject deserves no less specificity because this statute affects no less than the life and death of men, women, and children. Counsel's attempts to comply with the statute and its short deadlines underscore the problems the statute creates. I summarize them below."
Id. at 683.
Justice Fowler then set out the following problems:
• A family's only option is to seek a temporary restraining order which carries no right to appeal;
• To obtain a temporary restraining order, the Act requires "proof by a preponderance of the evidence that "there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted" when a hearing on a temporary restraining order is not an evidentiary hearing at all; in short, families trying to save the lives of their loved ones are corralled into a truncated time within which to do, and have no clear procedure by which to obtain a potentially life-saving or life-extending court order;
• It is unclear in which court families should seek relief;
• It is unclear what procedure families must follow or how much time they are permitted;
• It is unclear and possibly doubtful that a family has a right of appeal under this statute.
Justice Fowler concluded:
"In short, in its current form, the statute creates confusion where there should be clarity. This confusion not only is a disservice to both families and health care providers, but also ironically increases litigation when it should lessen it. I respectfully urge the legislature to revisit section 166. 046 and to clarify the procedures a family must follow to secure alternate care for their loved one. The legislature has already seen the importance of clarity at the inception of life; clarity is no less important at the end of life."
Id. at 685.
Opinion concerning the law is mixed. On the one hand, it does provide some guidance and some timetable for a family trying to keep alive a loved one when their current treaters have determined that such efforts are futile or would simply expend resources that would far outstrip any benefit. On the other hand, Justice Fowler's criticisms in her concurring opinion cannot be gainsaid. Those flaws not only make navigating the judicial system difficult for families under great strain, but can serve as a deterrent and create a landscape of missed opportunities. The law has been tweaked since it was first passed, but the legislative has not yet addressed the concerns set out by Justice Fowler. Additionally, those flaws pose a greater question: is the law meant to clear lost cases from hospital beds and balance sheets, or was it intended to provide families with a measure to counter such a mishap?
There is precedent for this sort of decision making. Where? Britain. Just over a year ago, Public Radio International's program The World reported on Britain's application of rationing and cost-benefit analysis to health care. You can listen to the piece, or read the transcript here. (Note, the headline at the top of the page might seem misleading, but the Britain story was shoehorned in with another story which received top billing).
There are always arguments for solid, cost-benefit analysis, but in a state that prides itself on rugged individualism and a people who won't be told by any government or government act how to live - indeed, even whether to live - this legislation is a bit of a surprise.
See the statute below.
Texas Advance Directives Act
"§ 166.046. Procedure if Not Effectuating a Directive or Treatment Decision"
"(a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.
(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
(1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility;
(2) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;
(3) at the time of being so informed, shall be provided:
(A) a copy of the appropriate statement set forth in Section 166.052; and
(B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and
(4) is entitled to:
(A) attend the meeting; and
(B) receive a written explanation of the decision reached during the review process.
(c) The written explanation required by Subsection (b)(2)(B) must be included in the patient's medical record.
(d) If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process under Subsection (b), the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive. If the patient is a patient in a health care facility, the facility's personnel shall assist the physician in arranging the patient's transfer to:
(1) another physician;
(2) an alternative care setting within that facility; or
(3) another facility.
(e) If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g).
(e-1) If during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.
(f) Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired.
(g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.
(h) This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency. This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142." |
