Response to criticism about Texas Advance Directive Act

First, no one withdraws or withholds *care* of the patient. The patient still receives food and hydration, pain medicine, oxygen by tube or mask, if needed, and other medical treatment.

For hospitalized patients, the Act is the only way for a doctor to refuse a patient’s request for medically inappropriate treatment without risk of abandoning him. If the doctor doesn’t follow the law, he becomes liable. Although no reason is required by law, in every case I know of the doctor has made it clear that the requested treatment is causing suffering and/or actual harm and violates the First Principle: “Cure when possible, but first, do no harm.”

I have asked who/where are the doctors willing to accept transfer. There must be some doctor willing to accept the patient in order for there to be a transfer. “Facilities” or hospitals can’t accept a patient without an accepting physician. For the most part, doctors in Texas don’t work for a hospital and can’t be ordered to admit or treat by the facility. That no other doctor can be found is actually evidence that the first doctor’s medical judgment is based on good medicine.

Transfer has happened in a couple of examples (that I know of because they have made the press or gone to court), where a doctor disagrees with the original attending physician. I’m sure this has happened in many others that we never heard about because of the transfer.

I didn’t want to cover a specific case, preferring to stick with the issues of ethics. However, my accusers repeatedly brought up Mr. Chris Dunn. His case is very typical of both my experience with patients dying of end-stage hepato-renal failure and the course of other patients I’ve been able to follow through public documents.

It was easy to follow this case. There was a video published by Texas Right to Life (TRTL), a lot of press, statements to reporters by family, lawyers, and TRTL staffers, as well as a couple of lawsuits. I spent the better part of two days once again reviewing the public records.

Virtually all of the hospital medical reports were made public record in the latest appeal by Mrs. Kelly’s lawyers, Joe Nixon and Trey Trainor, BTW. (Another BTW: Senator Nixon, please follow the gown rules for isolation rules in the future. There’s a reason for them.)

There have been many misleading statements and errors about the case in news articles, blogs, and press releases, including both condemnation and praise for the doctors and the hospital by the family members, TRTL, and repesentatives of Empower Texans (ET), (making this review pertinent as the conversation began on Facebook in response to another ET article). The affidavits of the attending doctor, the chairman of the Methodist Biomedical Ethics Committee, the social worker, and legal documents from Mrs. Kelly’s and Methodist’s lawyers have been public records at the Harris County court website and elsewhere online.

Mr. Dunn was transferred from another hospital to Methodist hospital after having a gastrointestinal bleeding episode that resulted in his becoming unresponsive and being placed on a ventilator. He had severe liver failure, kidney failure, and the build up of fluid in his lungs which his mother told a reporter about. His clinical diagnosis was obvious, and supported by records from an earlier hospitalization when he was diagnosed as having a metastic pancreatic mass. He had checked himself out of that hospital against medical advice after refusing a biopsy of his pancreatic mass or further treatment.

On admission, Mr. Dunn wasn’t able to make decisions, as he was suffering from hepatic encephalopathy (which causes delirium) and sedated due to pain and the ventilator. (Note the restraints on his wrists, his jaundice and swollen belly, and his sleepiness and confusion are evident in that video we’ve all seen.)

He didn’t have an Advance Directive or a Durable Power of Attorney for Medical Care. (TRTL’s lawyer John Seago claimed the mother had one.) The doctors turned to his divorced parents to make decisions as co-equal surrogates under Texas law.

Unfortunately, as his sister told one reporter, his dad agreed with the doctor, but his mother disagreed. According to court documents, the elder Mr. Dunn said that he believed that Chris didn’t want to die in the hospital and insisted on removal of the ventilator and transition to comfort care (not the administration of a deadly “serum” as the lawyers claimed in the lawsuit and media). Mrs. Kelly kept asking for more time to talk to family members before making a decision. in their affidavits, a hospital social worker and the Ethics Committe chair, each described the parents’ interaction with one another as a “firestorm.”

was obvious that Mr. Dunn needed a legal guardian. That he was unable to make medical decisions is supported by the affidavits of the attending doctor and a later court examiner, as well as the fact that his parents were agreeable to making those decisions.

The Ethics Committee chair and other members documented meetings with the parents and family at least five times over the month after admission, and given copies of the hospital policy on disputes. When the doctor invoked TADA, the Ethics chair met with them again and they were given 3 day’s notice of the committee meeting. (Dispelling the lawsuit and blogging claim that the family wasn’t informed and was surprised by the sudden notice.)

Mrs. Kelly attended the meeting and spoke with the Committee. Both parents were given information about the hospital policy on the TADA and told that the doctor would be allowed to remove the ventilator 11 days later. While Mr Dunn’s father agreed, his mother did not and filed her first lawsuit.

The hospital social workers contacted over 60 different facilities in attempt to transfer. They were able to find a hospice (and presumably a hospice doctor) willing to care for Mr. Dunn on the ventilator at home, but Mrs. Kelly declined that transfer.

The MICU intensivist doctors and hospital voluntarily agreed, without a court order or hearing, to continue the ventilator until a single legal guardian could be named. There was never a restraining order after the initial Agreed TRO. There was never any move to deny the Total Parenteral Nutrition or any other treatment. The doctors, the hospital and the court where Mrs. Kelly filed suit against the hospital requested that the probate court determine a legal guardian to settle the dispute between the parents. The hospital specifically asked for a family member to be named guardian. There never was a move to remove Mrs. Kelly as guardian since she never was the guardian. The probate court hadn’t named a legal guardian at the time of death.

At autopsy, the pancreatic adenocarcinoma was found in the pancreas, liver, lungs, and lymph nodes. There were 20 liters (5 gallons) of ascites fluid in the abdomen due to the liver failure which prevented the production of protein and blood clotting factors. The lungs showed evidence of fluid congestion, aspiration of stomach fluids and pneumonia. The kidneys had failed and were infected. There was wasting of fat and muscle tissue.

The clinical diagnosis was confirmed. Mr. Dunn died of his disease with 40 pounds of fluid in his abdomen, congested lungs, pneumonia and kidney infections, and on a ventilator with total food and hydration by IV. This is not “natural death.”

The court has dismissed the lawsuit(s) in favor of the hospital. The only coercion in this case was against the doctors who evidently gave extraordinarily good care in order to keep him alive while waiting for the surrogates’ decision, then waiting for the probate court to act. And yet, Mrs. Kelly’s lawyers have amended her lawsuit, since dismissed, and filed an appeal which demands a “fair trial” whenever disputes like this occur.

The demands we’ve heard about TADA, to mandate that individual doctors “treat until transfer” or face new civil and criminal liability – even jail time – for doctors who use their consciences and refuse to act against their medical judgment would not only infringe against a doctor’s right not to be enslaved by positively forcing his hand against his will. It would be a moving target, with advances in intensive care technology and the ability to keep a patient’s body functioning with increasing technology.

As to the “Doctors aren’t God” refrain by others: I agree. And I’ve agreed each time someone shouts (or writes) it at me when I won’t refer for an abortion or write that opiate perscription that they are certain is their right.

Inalienable rights are negative rights: the right not to be killed, the right not to be enslaved.

Doctors are human beings with inalienable rights, including the right to conscience and to not have their hand forced to cause harm to a confused and delirious patient who cannot consent to suffer.