Ten Days in Texas

In 1999, Texas introduced into its newly formed Advanced Directives Act a mechanism that allows hospital ethics committees to resolve “futility situations”—cases, that is, in which physicians want to discontinue life-sustaining treatment for a patient judged to have an irreversible and terminal condition, but the patient (or, more likely, the patient’s surrogate) wants treatment to continue. If the committee agrees that further treatment is inappropriate, then the family and the hospital must try to transfer care elsewhere to continue the treatment. If after ten days care has not been transferred, the hospital and the physician may unilaterally forego life-sustaining treatment. The family may petition a state court for more time to arrange a transfer, but the petitions provide limited redress, as they may not be granted, and they can only be for time to arrange a transfer, not for a judgment on the appropriateness of treatment. Also, the costs of transfer must be borne by the patient or family.

The law has been discussed favorably in the medical literature, and Texas physicians seem to be putting the mechanism into use. Moreover, its central goal is defensible: physicians have no absolute duty to provide treatments they reasonably believe will have no beneficial effect, and it is bad policy to force them to. But several cases widely reported in the press have led to criticism. In one particularly difficult case, doctors wished to discontinue treatment for a baby born with thanatophoric dysplasia, which is a uniformly fatal condition. The child’s mother obtained a temporary injunction forcing the hospital to continue artificial ventilation so that she would have more time to arrange transfer, but after five months, a probate judge ruled that another health care provider would not be found, and life support was withdrawn. The baby quickly died.

The patients in these press reports appear genuinely to have had terminal, irreversible conditions, and withdrawing life-sustaining treatment from them seems to have been warranted. It is how treatment was withdrawn that has generated criticism. Certainly the ten-day deadline and the power given to the ethics committees to set it and enforce it have appeared unreasonable and coercive. Families seem to be pitted against powerful adversaries in the health care system. Worse, how these adversaries reach their decisions is left somewhat murky, as the law does not stipulate what constitutes an ethics committee agreement, nor the composition of the committee, nor the requirements for a valid vote.

There is some interest in extending the ten-day deadline, perhaps to twenty-one days, but the very specificity of the law is problematic. Perhaps the more specific and less flexible the law, the more likely it is to lead to misunderstanding and dissatisfaction. All states have laws for futility cases, and all recommend transfer of care if physicians and surrogates disagree on whether to continue treatment. If transfer cannot be arranged, though, other states’ laws create an open-ended period to allow continuing dialogue—and they do not give ethics committees the quasi-legal power to settle the disagreement. The law must provide boundaries that are generally acceptable and operational, but it should also aim at consensus, and consensus requires time and lack of coercion.

Another problem may be with the very language of “futility,” which may suggest that the doctors have given up and want to wash their hands of a case, although the word “futile” is not used in the statutes. In California law, for example, physicians may decline to give “medically ineffective” care, and they must then arrange transfer of care.

All of these problems generate a deeper concern. Good medical practice requires both personal and public trust, and the deadline, the power vested in hospital officials, even the language of futility foster mistrust. Whatever policies are adopted to deal with “futility situations” and reinforce professional integrity and responsibility, they should support joint decision-making. Good medical practice requires that one avoid hostile confrontation, power struggles, and apparent failures of tact and compassion. We cannot quite give up on the concept of futility. But we might have to jettison the language of futility, and we also have to hedge on...