Bills in the Texas Legislature this year could dismantle a law that allows a hospital to stop life-sustaining treatment for a terminally ill patient whose family cannot move the patient elsewhere within 10 days after the hospital decides further care is futile.

The volatile issue pits right-to-life advocates against medical professionals, although both sides in the debate had a hand in writing the Texas Advance Directives Act, Chapter 166 of the Health & Safety Code, which the Legislature passed in 1999.

Greg Hooser, chairman of the Texas Advance Directives Act Coalition, says the coalition wrote the 1999 legislation � the first of its kind in any state � after intense negotiations. The coalition, an ad hoc group, which at that time included representatives of doctor and hospital associations as well as Texas and national right-to-life advocates, drafted a compromise bill after then-Gov. George W. Bush vetoed a 1997 bill that would have allowed doctors and hospitals to withdraw life-sustaining treatment from a patient 72 hours after issuing notice to the patient’s family.

Hooser, a shareholder in Sneed, Vine & Perry in Austin, says members of the coalition, which also now includes advocates for the disabled, have been trying to reach agreement on a bill that would amend the law. However, the right-to-life groups decided to seek legislation based on the treat-to-transfer concept. Hooser says that means physicians must provide life-sustaining treatment in accordance with the wishes of the patient’s family until the family can transfer the patient � an action that he says may never occur.

“It undoes the law,” Hooser says.

Burke J. Balch, an attorney who serves as director of the Robert Powell Center for Medical Ethics of the National Right to Life Committee, says doctors and hospitals are making decisions that the quality of life for some terminally ill patients is too poor to continue treatments.

“It’s our contention that’s a value judgment,” Balch says. “That judgment should be made by members of the patient’s family.”

State Rep. Bryan Hughes, R-Mineola, says the current Texas law gives hospitals no real incentive to assist families in searching for other health-care facilities willing to accept patients with end-stage conditions.

There’s an incentive for hospitals to do nothing, says Hughes, sponsor of H.B. 1094, one of two bills that would require hospitals to treat a terminally ill patient pending the patient’s transfer. “Ten days is not long enough,” says Hughes, an associate with The Lanier Firm.

Hughes’ bill would require a hospital to continue treatment pending a patient’s transfer to another facility.

Dr. Robert Fine, director of the Office of Clinical Ethics for the Baylor Health Care System and a member of the Advance Directives Act Coalition, says the treat-to-transfer concept really means open-ended treatment for a terminally ill patient. Such patients require multiple high-technology treatments in an intensive care unit, and not many facilities are willing to take those patients, Fine says.

But Hughes has found legislative support for the concept. Daniel Deslatte, Hughes’ chief of staff, says 59 House members have agreed to be co-authors of H.B. 1094.

House Speaker Tom Craddick, R-Midland, referred H.B. 1094 to the House Public Health Committee on Feb. 22. S.B. 439, an identical bill by state Sen. Robert Deuell, R-Greenville, is pending in the Senate Health and Human Services Committee where it was referred by Lt. Gov. David Dewhurst on Feb. 21.

A third bill, H.B. 1440 by state Rep. Tan Parker, R-Flower Mound, prohibits a patient’s attending physician from expressing an opinion that life-sustaining treatment is inappropriate to a physician at another facility that is considering whether to accept the patient. Craddick referred Parker’s bill to the Public Health Committee on Feb. 19.

Parker says his bill would ensure that physicians relay only medical facts about a patient’s condition to a prospective transfer facility to prevent patient discrimination because of futility labels. “I want another receiving facility to base its opinion on medical facts rather than on the opinion of the treating physician,” he says.

Deuell did not return two telephone calls to his legislative office before presstime on March 1.Possible Compromise

Other states have passed laws that give patients’ families the ability to require hospitals to continue treatments that medical professionals have determined should be discontinued. The Robert Powell Center for Medical Ethics identified 10 states that have treat-to-transfer laws in a report released in April 2005. Those states are Alabama, Florida, Kansas, Maryland, Massachusetts, Minnesota, New York, Ohio, Oklahoma and Wyoming.

In 2006, New Hampshire also passed a law, under Title X Public Health Chapter 137 J, that requires continuation of life-sustaining treatment, if the patient’s advance directive to physicians or the wishes of the patient’s designated “agent” call for continued treatment.

Under the Texas Advance Directives Act, a hospital must give the family of a terminally ill patient 48 hours’ notice of a meeting at which the hospital ethics committee will consider the treating physician’s recommendation to discontinue life-sustaining treatment for that patient. The hospital must invite family members to the consultation and must provide the family with a written copy of the ethics committee’s decision if the committee agrees with the treating physician.

Fine, the end-of-life expert with the Baylor health system, says few cases ever reach the point where an ethics committee writes a letter stating a hospital’s decision to withdraw treatment from a patient.

Although the state does not collect data on such cases, Fine says he collected five years’ worth of information from 11 large hospitals in Texas and two years’ worth of data from five other large hospitals in the state. According to Fine’s data, the hospitals surveyed held 2,922 ethics committee consultations, 974 of which concerned medical futility cases. From those 974 consultations, the hospitals issued 65 letters stating agreement with the attending physicians that treatment should be withdrawn, Fine says. But he says the hospitals actually withdrew treatment in only 27 of the cases, while 22 patients died receiving treatment as they awaited transfers.

In 2006, the family of 63-year-old Yen Lang Vo disagreed with North Austin Medical Center, which had decided to withdraw treatment from Vo, whom a neurologist had diagnosed as being in a persistent vegetative state. [See "Persistence Is Futile," Texas Lawyer, May 29, 2006, page 1.]

Jerri Ward, attorney for Vo’s family, says the hospital agreed to continue treatment past the 10-day deadline. But Ward, owner of Garlo Ward in Austin, says Vo died of an infection last year before her daughter, LoAnn Trinh, could be trained to provide Vo the dialysis treatments she needed.

Ward says she supports changing the Texas law to require hospitals to provide treatment until a patient is transferred.

“I don’t think people should die because of a hospital’s view on ethics,” she says. “I don’t think the doctor’s ethics should trump the family’s wishes.”

Some treatments can cause patients to suffer, Fine says, recalling the case of a young woman who developed metastatic cancer that had filled her lungs. Because the woman’s family insisted that treatment continue, the hospital placed the woman on a high-pressure ventilator that forced air into her lungs, causing so much pain that she had to be sedated with morphine and other drugs, he says.

“If you’re a doctor or a nurse and you’re watching your patient suffer horribly, it’s tough,” Fine says.

Elizabeth Sjoberg, associate general counsel of the Texas Hospital Association, calls treat-to-transfer bills unacceptable. She says that when patients reach the point at which their treating physicians determine that continuing life-sustaining treatment is inappropriate, the patients have suffered multiple organ failures.

“Usually, that is what brings a physician to the point where he requests an ethics committee review,” Sjoberg says.

Sjoberg says hospitals recognize that the Legislature may need to expand the 10-day time period that begins after a hospital notifies a patient’s family of its decision to withdraw treatment. But the hospitals have not decided how long that period should be, she says.

How much to expand that period has been the sticking point for the entire coalition, Hooser says. But Hooser says he is drafting a “place holder bill” for which the coalition will seek a sponsor prior to the March 9 bill-filing deadline. He is hopeful that a compromise can be reached with the right-to-life advocates before the session ends.

Notes Hooser, “The key to the whole package is how much longer than 10 days the parties can agree to.”