Unhooked from Life Support

You can't turn on a TV without hearing about Terri Schiavo. Right to Life group are shocked at the thought that after 16 years in a Persistent Vegetative State and at least 11 applications to the Florida Court of Appeal in this case resulting in four published decisions; four applications to the Florida Supreme Court with one published decision (Bush v. Schiavo); three lawsuits in federal district court; three applications to the U.S. Supreme Court and nearly untold motions in the trial court, and after three attempts to bribe Terri's husband into ignoring the fact that Terri told him she would never want to be kept alive under conditions like this, he continues to honor her wishes. Now we have the Senate and the House agreeing on legislation to violate States Rights and turn this matter over to another 16 years of battle in the Federal Court. The President is even traveling back to Washington to sign this legislation.

While this is going on the Houston Chronicle is reporting that National Right to Life, the organization that is helping to lead the fight to keep a Florida hospital from removing life support for Terri Schiavo, helped write the Texas Futile Care Law that allows St. Luke's Hospital to unhook Jannette Nikolouzos's husband from life support tomorrow.

According to the Chronicle Spiro Nikolouzos had been unable to speak for some time, and was fed through a stomach tube by his wife at home. But she said he was able to recognize family members and show emotion. A month ago she rushed him to the hospital, where it was determined he had bleeding related to a shunt in his brain. He has been on a ventilator since.

Doctors apparently determined further care was futile. Under the law, the hospital's ethics committee met last week to consider the case, with Mrs. Nikolouzos able to participate. The committee, over her objection, agreed with the doctors.

She then had 10 days to find another facility to take her husband, while the hospital made a good-faith effort to do the same. When she was unable to find such a facility, she went to court.

Judge Tony Lindsay expressed "most sincere sadness and apologies," but said the law required Nikolouzos show a reasonable expectation of finding an alternative facility before Lindsay could order the hospital to continue treatment it did not feel was advisable.

It's the same law under which another judge denied Wanda Hudson's request to force Texas Children's Hospital to maintain Sun Hudson on life support.

The law was passed in 1999 and amended two years ago. Acting as a negotiator for Houston-based Texas Right to Life, Burke Balch flew in from Washington "20 to 25 times" to sit at a table with representatives of the Texas Hospital Association and other parties to negotiate the law and its amendment.

Balch is director of National Right to Life's Robert Powell Center for Medical Ethics.

Right to Life was at the table partly because then-Gov. George W. Bush had vetoed a similar bill two years earlier at the request of some members of the religious right, according to its sponsor, then-Sen. Mike Moncrief, now mayor of Fort Worth.

Making compromises

After new negotiations, the bill went before a Senate committee without opposition. Balch testified in favor, as did representatives of the Baylor Health Care System and the Texas Conference of Catholic Health Facilities.

Balch said both the right to seek an alternative facility and the 10-day period to do so were negotiated compromises.

"When you're dealing with legislation, you make compromises," he said.

The Texas Futile Care Law provides (in Section 166.052): When an attending physician refuses to comply with an advance directive or other request for life-sustaining treatment because of the physician's judgment that the treatment would be inappropriate, the case will be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review..... If after this review process both the attending physician and the ethics or medical committee conclude that life-sustaining treatment is inappropriate and yet you continue to request such treatment, then the following procedure will occur:

1. The physician, with the help of the health care facility, will assist you in trying to find a physician and facility willing to provide the requested treatment.
2. You are being given a 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, maintained by the Texas Health Care Information Council. You may wish to contact providers or referral groups on the list or others of your choice to get help in arranging a transfer.
3. The patient will continue to be given life-sustaining treatment until he or she can be transferred to a willing provider
   for up to 10 days from the time you were given the committee's written decision that life-sustaining treatment is not appropriate.
4. If a transfer can be arranged, the patient will be responsible for the costs of the transfer.
5. If a provider cannot be found willing to give the requested treatment within 10 days, life-sustaining treatment may be withdrawn unless a court of law has granted an extension.
6. You may ask the appropriate district or county court to extend the 10-day period if the court finds that there is a reasonable expectation that a physician or health care facility willing to provide life-sustaining treatment will be found if the extension is granted.

"Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.

In Florida if your next-to-kin says you would not want to live like this you may be forced to live for 16 years and your next-of-kin may be forced to go through numerous legal hearings all of which say he is right, and then the Federal Government may stick its nose in and make him do it all over again, but in Texas if your next of kin wants you to receive treatment, but if your doctor does not want to treat you, and if she cannot find another hospital that will treat you in 10 days you can be starved to death.

If the Federal Government is going to stick its nose into end-of-life matters, which case should it address first?

As blogger James Joyner says So, now, we're going to spend hundreds of thousands of taxpayer dollars to subvert the legal process and the wishes of both Michael and Terri Schiavo in this matter?

Meanwhile, as Duncan Black and Mark Kleiman point out, the state that he's leaving, Texas, routinely allows hospitals to pull the plug despite the will of the patient once money runs out. Kleiman discusses the contrasts between the Sciavo case and that of Spiro Nikolouzos, a Texas patient profiled in the Chronicle piece, at some length. I must agree that I find the latter much more problematic. Perhaps Congress should involve itself in this, a much larger public policy problem, rather than involving itself in a single case that's already been adjudicated.

HealthLawProf Blog has a whole series of posts on these issues written by law professors specializing in health care issues.

As blogger Mark Kleiman says The Texas cases contrast with the Schiavo case in two ways:

1. Schiavo is in a persistent vegetative state, but isn't terminal. The two Texas patients were terminal but not vegetative. It seems to me that the distinction between a patient who is aware and a patient who isn't aware is the morally relevant one, while the disctinction between a death that is sure to occur soon and a death that is sure to occur eventually is morally irrelevant. (Try pleading as a defense to a murder charge that the victim had a terminal ailment.)
2. Terry Schiavo's husband has decided that she would have wanted to die, and the courts have upheld his view against the view of her parents. The mother of Sun Hudson wanted her child to live, and the wife and children of Spiro Nikolouzos want him to live. So while the Schiavo case is an intra-family dispute, the two Texas cases pit the families against health-care institutions motivated at least in part by financial considerations.

Update 5/21 20:45 Tom Maguire raises some interesting points that may distinguish the Florida case from the two Texas cases. There is no direct evidence that these two Texas cases involved the hospitals refusing to treat for financial reasons, but based on my reading of the Texas Law, financial reasons certainly could be the cause for non treatment.