Journal of Legal Medicine

ISSN: 0194-7648 (Print) 1521-057X (Online) Journal homepage: http://www.tandfonline.com/loi/ulgm20

To Treat or Not to Treat: End-of-Life Care, Patient Autonomy, and the Responsible Practice of Medicine Elisabeth A. Fontugne To cite this article: Elisabeth A. Fontugne (2014) To Treat or Not to Treat: End-of-Life Care, Patient Autonomy, and the Responsible Practice of Medicine, Journal of Legal Medicine, 35:4, 529-538, DOI: 10.1080/01947648.2014.981445 To link to this article: http://dx.doi.org/10.1080/01947648.2014.981445

Published online: 17 Dec 2014.

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Journal of Legal Medicine, 35:529–538 C 2014 American College of Legal Medicine Copyright  0194-7648 print / 1521-057X online DOI: 10.1080/01947648.2014.981445

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TO TREAT OR NOT TO TREAT: END-OF-LIFE CARE, PATIENT AUTONOMY, AND THE RESPONSIBLE PRACTICE OF MEDICINE Elisabeth A. Fontugne*

Second Prize Hirsh Student Writing Competition 2014 INTRODUCTION On December 9, 2013, 13-year-old Jahi McMath suffered a heart attack after undergoing a tonsillectomy at Children’s Hospital in Oakland, California.1 All of the neurologists who examined her agreed that her brain had been deprived of oxygen for far too long to function, and she was declared legally dead.2 But, when the doctors sought to remove Jahi from the ventilator that kept her heart beating, her parents refused and turned to the courts.3 Now, they have one day to arrange for their daughter’s transfer to a facility whose doctors will continue to care for her.4 Thirty years earlier, Clarence Herbert had fallen into a comatose state after suffering similar post-operative complications.5 Mr. Herbert’s doctors consulted his wife and children, who unanimously decided to refuse lifesustaining treatment (LST) on his behalf based on the views that he had shared with them before reporting to the hospital for surgery.6 Mr. Herbert never regained consciousness; he died days after his feeding tubes were removed, surrounded by his loved ones.7 In dismissing the criminal charges that had been * Third-year

law student at Stetson University College of Law. Please direct correspondence to Ms. Fontugne at Stetson University College of Law, 1401 61st St. S., Gulfport, FL 33707, or via email at [email protected]. 1 See Norimitsu Onishi, A Brain Is Dead, a Heart Beats On, N.Y. TIMES (Jan. 3, 2014), http://www. nytimes.com/2014/01/04/us/a-brain-is-dead-a-heart-beats-on.html? r=0. 2 See id. 3 See id. 4 See id. 5 Barber v. Superior Court, 147 Cal. App. 3d 1006, 1010 (1983). 6 Id. at 1010. 7 Id. at 1011, 1021.

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filed against Mr. Herbert’s physicians, the California Court of Appeals Second District recognized the difficulties presented by their decision to withhold LST but upheld the primacy of their medical judgment in resolving it: In examining this issue we must keep in mind that the life-sustaining technology involved in this case is not traditional treatment in that it is not being used to directly cure or even address the pathological condition. It merely sustains biological functions in order to gain time to permit other processes to address the pathology . . . . A physician has no duty to continue treatment, once it has proved to be in ineffective. Although there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel . . . . No precise guidelines as to when or how these decisions can be made can be provided by this court since this determination is essentially a medical one to be made at a time and on the basis of facts which will be unique to each case.8

The Barber court also expressed compassion for the “physicians and families of these unfortunate victims” who, because of the “gap between technology and law,” had to make such a difficult decision without the help of “clearly defined legal guidelines.”9 But, since 1983, only Texas10 and the Commonwealth of Virginia11 have enacted statutes that fully support doctors’ right to refuse to continue LST, on the grounds that such care is medically futile12 because a particular patient has no meaningful chance of recovery.13 This article traces the development of the concept of medical futility, argues that its application procedures must be based on the precepts of medical ethics to be effective, and demonstrates that, in the United States, our societal approach to end-of-life care reflects deep-seated misconceptions about

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Id. at 1017-18. Id. at 1014. 10 Advance Directives Act of 1999 (TADA), TEX. HEALTH & SAFETY CODE ANN. §§ 166.001-166.166 (West 2013). Section 166.045 grants immunity to physicians who refuse to provide LST against the wishes of a patient’s surrogate. Id. § 166.045. Section 166.046 requires an ethics committee review for each medical futility case in which a physician refuses to provide LST and invokes the statute. Id. § 166.046(a). Pending this review, the patient continues to receive LST. Id. If the committee agrees with the physician, the patient’s surrogate has 10 days to arrange for the transfer of the patient to another facility before LST is discontinued; if the committee disagrees with the physician, then the patient is placed under the care of another physician, who has no objection to providing LST. Id. § 166.046(e). 11 The Virginia Health Care Act of 1988, VA. CODE §§ 2981-2993 (2013). Section 54.1-2990(A) provides that, in cases in which the physician refuses to treat a patient on the grounds that it is ethically and medically inappropriate, the physician will inform the patient’s surrogate and make reasonable attempts to transfer the patient to another facility. The transfer must be made within 14 days. 12 See Eric Chwang, Futility Clarified, 37 J.L. MED. & ETHICS 487, 489 (2009) (defining futility as “uselessness,” and asserting that a medically futile treatment is both unnecessary and ineffective). 13 See id. at 490-93 (distinguishing between the definition of futility, which is straightforward, and its application to a particular case, which involves a value judgment on the part of the clinician). 9

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medical technology,14 the medical profession,15 and death itself.16 To rectify this imbalance will necessitate a paradigm shift, involving a complete overhaul in values. It is not enough to live well; we also must learn to face death head-on when it meets us17 and die well.18 That people in other countries19 have been able to do this already is a harbinger of hope. And it should bring hope to families like those of Jahi McMath or Clarence Herbert who unexpectedly must make “intensely painful and personal decisions”20 about the care of their loved ones. I. THE CONCEPT OF MEDICAL FUTILITY Despite a great number of attempts to define medical futility, both inside21 and outside22 of the medical profession, it is not a concept that lends itself 14

See Ernie W.D. Young, Reflections on Life and Death: The Technological Imperative Is Being Called Seriously into Question, 18 J. THEOLOGY S. AFR. 48, 53 (1977) (stating: “That we [doctors] are no longer automatically doing what is within our power to do, is a welcome indication that the technological imperative—always to do what can be done—is, at least by many, being called seriously into question”). Nearly 40 years later, the technological imperative needs to be questioned anew in the healthcare arena, by doctors and patients alike. 15 See Edmund D. Pellegrino, The Metamorphosis of Medical Ethics: A 30-Year Retrospective, 269 JAMA 1158 (1993) (tracing the philosophical shifts in medical ethics during the past 50 years and predicting a period of crisis—which might shock those patients who have come to equate the Hippocratic Oath with the wild notion that doctors have an absolute duty to treat patients). 16 See JILL LEPORE, THE MANSION OF HAPPINESS: A HISTORY OF LIFE AND DEATH xii, xviii (2012) (stating: “The more secular ideas about immortality have become, the less well anyone, including and maybe especially doctors and scientists, has accepted dying, or even growing old . . . . In Man versus Death, being clever helps, but the best you can hope for is to prolong the game”). While this author does not agree that most doctors have trouble growing old or accepting death, which would be difficult given their everyday communion with these realities through their patients, Lepore’s assertions do hold true for those among us who find no dearth of distractions in other things. 17 See William H. Colby, Society’s Challenge: Finding a Better Way to Die, WIS. LAW. (Apr. 2009), http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume= 82&Issue=4&ArticleID=1828 (discussing assisted-suicide trends and the ineffectiveness of end-of-life laws, and emphasizing that we first have to talk about death to face it). 18 See Barry R. Furrow, Cost Control and the Affordable Care Act: CRAMPing Our Health Care Appetite, 13 NEV. L.J. 822, 866-69 (2013) (demonstrating that an overhaul in societal expectations and norms about dying is in order, if we are ever to curb our national appetite for healthcare and learn to die well). 19 See Sofia Moratti, Non-Treatment Decisions on Grounds of "Medical Futility" and "Quality of Life": Interviews with Fourteen Dutch Neonatologists, 26 ISSUES L. & MED. 3 (2010) (finding that, in Dutch NICU’s, “the final decision for or against (further) life-prolonging treatment results from a process of negotiation and integration of different approaches to analyzing ‘quality of life”’). 20 Barber, 147 Cal. App. 3d at 1014. 21 See Ezra Gabbay et al., The Empirical Basis for Determinations of Medical Futility, 25 J. GEN. INTERNAL MED. 1083 (2010) (citing many medical articles attempting to define medical futility in relation to patient outcomes but also stating the futility issue clearly from the start: “With the advent of new intensive care and resuscitation modalities, physicians are often faced with demands for treatments that are technically feasible but which they may regard as clinically inappropriate because the prognosis is dismal”). 22 See Chwang, supra note 12 (distinguishing futility from its application and showing that the definitional problems arise from the concept’s application).

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well to universal acceptance.23 The reason for this is that each presenting case is different, which makes the creation of empirical guidelines on which to base futility determinations all but impossible.24 In this context, evidencebased medicine fails.25 As one author notes, “we cannot expect to be able to fit all of medicine on a note-card.”26 Instead, clinical judgment27 drives physician’s decisions to intentionally withhold treatment that is not curative,28 that will not work,29 or that will cause an amount of harm to the patient that is disproportionate to the small potential benefit that it may bring.30

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See Alan E. O’Connor et al., Emergency Medicine and Futile Care: Taking the Road Less Travelled, 23 EMERGENCY MED. AUSTRALASIA 640, 640 (2011) (documenting the failure of the definitional approach to medical futility, and explaining that it “is complicated by variation in what is perceived as an acceptable probability of success and acceptable quality of life”). 24 See Gabbay et al., supra note 21, at 1088 (stating, after analyzing 92 qualifying medical articles, that “in most circumstances physicians cannot confidently rely on published outcome data to make determinations of medical futility”). 25 See Maxwell J. Mehlman, Professional Power and the Standard of Care in Medicine, 44 ARIZ. ST. L.J. 1165, 1216-25 (2012) (demonstrating that the very concept of “evidence-based” guidelines is a fallacy); see also Marc A. Rodwin & John D. Abramson, Clinical Trial Data as a Public Good, 308 JAMA 871, 872 (2012) (pointing out that most clinical trials are funded by drug manufacturers, which oppose disclosure of their clinical data reports on the grounds that they constitute proprietary information, rather than a public good; thereby preventing physicians from practicing genuine “evidence-based” medicine because they do not have access to the original data on which this “evidence” from clinical trials is based). 26 Chwang, supra note 12, at 491. 27 See id. at 492 (describing clinical judgment as “too complex to reduce to simple algorithms,” as it involves scientific and normative reasoning as well as practical experience that is gained over many years). 28 See Barber, 147 Cal. App. 3d at 1017 (distinguishing LST from curative care, which presupposes a non-negligible chance that the patient’s condition will improve). By definition, LST is not curative; if it were, there would be little debate about whether the patient should receive it, because one always would be able to find a doctor to prescribe it. This is a point that repeatedly has been misunderstood by those who assert that the implementation of the TADA has resulted in a diminution of patients’ rights. See, e.g., Robert W. Painter, Developments in Texas Advance Directives, HOUS. LAW. (Sept. 2009), http:// www.thehoustonlawyer.com/aa sep09/page20.htm (stating, erroneously, that “this procedure allows a hospital ethics committee to make the final decision to end curative care, including the provision of food and water, if there is a disagreement between the attending physician and the patient or family” (emphasis added)); Nora O’Callaghan, Dying for Due Process: The Unconstitutional Medical Futility Provision of the Texas Advance Directives Act, 60 BAYLOR L. REV. 527, 529 (2008), http://www.baylor.edu/content/ services/document.php/119763.PDF (arguing that the TADA “applies to everyone who finds themselves in need of medical assistance to maintain one’s life, even outpatients in need of such things as dialysis or portable respirators, and regardless of whether one’s condition is expected to improve”) (emphasis added). If the patient’s condition was expected to improve, the treating physician never would invoke the TADA, because the treatment could not be described as medically futile—even if the treating physician suddenly decided not to provide it, patient care simply would be transferred to another doctor). 29 See O’Connor et al., supra note 23, at 641 (noting that, in the emergency room, the relevant futility question is: “Will the intervention work?” rather than: “Is the intervention worth it?”). 30 See Moratti, supra note 19, at 5 (examining reports of the Dutch Association of Pediatrics and the Dutch Medical Association on end-of-life decisions in neonatology, which both emphasized the relevance of this proportionality analysis to medical futility considerations).

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Historically, the concept of medical futility emerged as a response to the victory of the patient autonomy movement in the 1960s and 1970s.31 In Quinlan,32 the New Jersey Supreme Court upheld the right of a father to be appointed as a guardian so that he could remove his adult daughter from life support, against the advice of her treating physicians.33 Once patients had won the legal right to refuse treatment, they started to clamor for the right to receive it. They demanded that doctors treat them—even when treatment had not been offered.34 After attempts to define medical futility failed, doctors changed course and set out to implement procedures for the application of their right to withhold treatment, especially when that treatment was not going to help a dying patient.35 They advanced many rationales for these procedures, but characterizing the administration of futile treatments as a violation of the medical code of ethics offered the soundest ethical foundation.36 The history of medicine supports this analysis. Hippocrates counseled physicians to “refuse to treat those who are overmastered by their disease, realising that in such cases medicine is powerless.”37 Doctors have long made a distinction between their duties to the dying and their duties to the sick: helping the latter to get better through treatment and caring for the former as they make ready to embark upon their final passage.38 But medical intervention is, first and foremost, an invasion of the patient’s physical integrity.39 One Dutch neonatologist, describing such invasive treatment on a baby, reinforces this notion: “It’s a kind of violence you do to the children, actually. I say to people: if I did what I do on my work in the streets, I would be in prison!”40 In spite of their good intentions, doctors have often erred in prescribing treatments whose effects have accelerated the deaths of their patients. On December 14, 1799, George Washington prematurely succumbed to a likely streptococcus infection that had caused throat inflammation and was obstructing his airway, after his physicians bled him four times.41 Camillo Benso, 31

See Sofia Moratti, The Development of "Medical Futility": Towards a Procedural Approach Based on the Role of the Medical Profession, 35 J. MED. ETHICS 369, 369 (2009). 32 Matter of Quinlan, 355 A.2d 647 (N.J. 1976). 33 Id. at 666. Karen Ann Quinlan’s physicians knew that she had no chance of recovery, but, at the time, they believed that their professional duty as physicians required them to keep her on life support. See id. 34 See Moratti, supra note 31, at 369. 35 See id. at 370-71. 36 See id. at 371-72 (characterizing futility as a negative standard limiting “the authority to practise medicine”). 37 See O’Connor et al., supra note 23, at 642. 38 See PAUL RAMSEY, THE PATIENT AS PERSON: EXPLORATION IN MEDICAL ETHICS 133 (1970) (emphasizing the difference between treating the dying and treating those who are merely sick: “Just as it would be negligence to the sick to treat them as if they were about to die, so it is another sort of ‘negligence’ to treat the dying as if they were going to get well”). 39 See Moratti, supra note 31, at 372. 40 See Moratti, supra note 19, at 10. 41 See John Ferling, The Final Days, 34 AM. HIST. MAG. 42, 49-50 (Dec. 1999).

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Count of Cavour, died just three months after leading the Risorgimento that achieved the unification of Italy.42 He might have been suffering from tertian malaria43 or thrombotic thrombocytopenic purpura,44 but he died within days, after submitting to the treatment that his physicians had prescribed: six bloodlettings in the span of 72 hours.45 Other errors from medicine’s past certainly have killed patients but also have led to notable medical successes. Through these trials and errors, one paradox that characterizes entering the profession has emerged: doctors must assimilate scientific dogma, but simultaneously develop a “keen spirit of sceptical [sic] inquiry.”46 With the emergence of technologies that progressively altered the balance between life and death, the medical profession went into a flurry of agitation.47 On the other hand, legal standards pertaining to the resolution of issues arising out of this phenomenon were almost non-existent.48 And, in the meantime, doctors’ decision-making power in medicine was becoming progressively constrained by other actors—legislators,49 insurance companies,50 and pharmaceutical companies.51 In this context, the futility debate stood out as an opportunity for physicians to reclaim some of this lost decision-making power, as well as to recast and reinforce the ethical standards that governed their profession.52 The concept of futility allowed doctors to reassert the primacy of clinical judgment in the face of mounting pressures. After all, doctors stand at the center of the healthcare arena; they are the ones who are in the best position

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See Giuseppe Remuzzi, Ethical Disputes Still Beset Italian Medicine 150 Years After Count Cavour’s Death, 379 LANCET 1068, 1068 (2012). 43 Id. at 1069. 44 Venerino Poletti & Gilberto Corbellini, Cavour’s Death and the Political Difficulties of Italian Politics, 380 LANCET 108 (2012), http://www.thelancet.com/pdfs/journals/lancet/PIIS0140673612611763.pdf. 45 Remuzzi, supra note 42, at 1068-69. 46 John Waller, Lessons from the History of Medicine, 21 J. INVESTIGATIVE SURG. 53, 54-55 (2008) (defending the importance of studying medical history to learn medical science and understand the profession). 47 Quinlan, 355 A.2d at 667 (listing the many medical articles of the day that addressed this issue). 48 See id. 49 See Jean Wright Veilleux, On One Hand and the Other: How Competing Goals Imperil the Affordable Care Act’s Success, 38 VT. L. REV. 385, 395-98 (2013) (discussing the Physician Self-Referral Law, also known as the Stark Law, because it was introduced by Representative Pete Stark in 1989). 50 See Brian J. Carroll, Getting Your Docs in a Row: Will the Patient Protection and Affordable Care Act Allow Physicians in Private Practice to Organize and Collectively Bargain?, 9 J. HEALTH & BIOMED. L. 117, 130 (2013) (showing how insurance companies, especially HMOs, began to “invade physician decision-making power” after the passage of the Health Maintenance Organization Act of 1973). 51 See generally Nat Almirall, The Ethics of Engagement with the Pharmaceutical Industry, 105 MICH. MED. 10-12 (2005) (highlighting the ethical danger that physicians face when confronted with pressures from the pharmaceutical industry, because these often pin a physician’s self-interest against the health of patients). 52 See Moratti, supra note 31, at 370-71; O’Connor et al., supra note 23, at 641 (detailing physician’s ethical obligation in relation to ensuring that futile care, once it is recognized, is not continued).

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to evaluate patients and to recognize medical futility when they see it.53 On the other hand, lawyers, judges, and society at large have neither the medical knowledge nor the clinical experience to properly categorize these cases. Judges may understand and properly analyze a medical case in which the concept of medical futility is invoked,54 but they might miss the fine nuances that an experienced physician would discern. This holds true even at a rudimentary level. For example, while conducting hearings to evaluate the sufficiency of the Texas Advance Directives Act (TADA),55 the Texas legislature heard testimony from the wife of James Givens, a patient in whose case the TADA had been invoked. Mrs. Givens reported that her middle-aged husband, who had been placed on a ventilator, was fully conscious in the hospital and did not suffer from any neurological problems.56 But most doctors would evince a keen dose of skepticism upon hearing these particulars, because the medical scenario that they describe would not be in harmony with the physicians’ clinical experience; it would simply not reflect the reality of the great majority of cases in which patients must be connected to ventilators because they are unable to breathe on their own.

II. APPLICATION: THE TADA The TADA57 was passed by the Texas Legislature shortly after the Council for Ethical and Judicial Affairs of the American Medical Association issued a report establishing a model procedure for physicians to adopt in handling medical futility cases.58 In spite of many challenges, the TADA is still in force.59 The statute’s language is straightforward:60 The treating physician instigates the process by deciding to refuse LST on the grounds that it is

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O’Connor et al., supra note 23, at 640 (stating that “many practitioners say that although they cannot define futility, ‘I know it when I see it.”’). 54 See Quinlan, 355 A.2d at 647 (relying on the evidence from the record, judges conducted a thorough and pertinent analysis of the unfamiliar legal and medical issues presented by Karen Ann Quinlan’s case). 55 See O’Callaghan, supra note 28, at 550 (reporting on these hearings). 56 See id. at 551 (relating the testimony of Mrs. Givens). 57 See the Texas Advance Directives Act of 1999 (TADA), TEX. HEALTH & SAFETY CODE ANN. §§ 166.001166.166 (West 2013). 58 See Council on Ethical and Judicial Affairs, American Medical Association, Medical Futility in End-ofLife Care: Report of the Council on Ethical and Judicial Affairs of the American Medical Association, 281 JAMA 937 (1999). 59 See Painter, supra note 28, at 22-23 (describing these challenges and how they have failed); see also Thomas W. Mayo, Living and Dying in a Post-Schiavo World, 38 J. HEALTH L. 587, 601-08 (2005) (detailing the history of the TADA and the particulars of the AMA Council’s Report). 60 See TEX. HEALTH & SAFETY CODE ANN. §§ 166.001-166.166.

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inappropriate.61 The matter is then referred to a hospital ethics committee to be reviewed.62 The surrogate for the patient must be notified of the time and date of the hearing at least 48 hours before it takes place.63 He or she may attend the hearing and may also speak to the ethics committee on the patient’s behalf.64 If the committee disagrees with the treating physician, the patient’s care is transferred to another physician who will administer the treatment—either at the same hospital or in a different facility.65 If the committee agrees with the treating physician, then the patient must be transferred to a different facility within 10 days.66 The treating physician and the hospital’s staff must aid the patient’s surrogate in identifying another facility that will accept to care for the patient.67 Once the TADA’s 10-day deadline passes, the hospital and the treating physician are legally allowed to stop providing LST to the patient.68 Arguments against TADA mainly fall into two categories: political and constitutional.69 Those in the first category rest upon the premise that the statute grants physicians, and the medical profession as a whole, too much power. TADA contains no mechanism to check a physician’s power to invoke it nor does it vest authority in any independent overseeing body to guard against its arbitrary or capricious invocation. The medical or ethics committees integral to the operation of the TADA are themselves composed of doctors, whose interests naturally lie with their colleagues. This may encourage doctors to collude against the unfortunate patients whose receipt of LST is at stake. Moreover, TADA limits the patient’s resort to the courts to one purpose: extending the statute’s 10-day deadline once the patient or his or her surrogate shows by a preponderance of the evidence that another facility will accept to care for the patient.70 Finally, TADA grants absolute immunity to the 61

Id. § 166.046(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).” (emphasis added)). 62 Id. § 166.046(a) (describing this committee as a “medical or ethics committee”). 63 TEX. HEALTH & SAFETY CODE ANN. § 166.046(b)(2) (West 2013) (This applies “unless the time period is waived by mutual agreement.”). 64 See id. § 166.046(b)(4). The statute does not explicitly grant the surrogate the right to speak, but it certainly behooves the committee to give him or her the opportunity to be heard, especially because the statute allows the surrogate to be present. 65 Id. § 166.046(d). 66 Id. § 166.046 (e). 67 Id. § 166.046(d). 68 Id. § 166.046(e) (“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).” Subsection (g) allows the patient to petition the courts for an extension of time on the 10-day limit.). 69 See O’Callaghan, supra note 28 (providing the most comprehensive exposition of all of these arguments against the TADA). 70 TEX. HEALTH & SAFETY CODE ANN. § 166.046(g) (West 2013).

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physicians who invoke it: They cannot be subjected to civil suits by patients, criminal prosecutions by the state, or disciplinary action by the state medical board for refusing to provide medically futile treatment.71 But these arguments ignore one basic precept of our system of law—which is founded on the people’s free access to the courts for relief or judicial review. While the TADA does work to limit the role of the judiciary,72 it cannot operate to prevent a patient from resorting to the courts.73 Nor does it act to limit the applicability of federal laws that relate to child abuse and neglect.74 Moreover, members of the medical profession in the United States historically have lacked the ability to organize as a group,75 which is a necessary condition for widespread collusion. The only qualities that physicians share are scientific knowledge of medicine, clinical judgment, and the ethical code of their profession. And this makes them ideally suited to serve on the ethics committees contemplated by TADA. Long before, the Quinlan court had endorsed this approach, recognizing its potential as a forum in which a treating doctor’s decision could be shared, rendering it less burdensome.76 The second category of arguments against the TADA seeks to deconstruct the statute on constitutional grounds. First, it is argued that the statute should be found void for vagueness.77 Second, it is alleged that the statute’s application violates the due process rights of patients, who do not have the opportunity to be heard during a process that threatens one of their fundamental liberty interests: life.78 But this argument relies upon two misconceptions. First, the TADA does not preclude judicial review, even if it discourages it.79 Second, invoking due process presupposes the defense of a pre-existing right. Because patients’ fundamental right to life can be upheld through petitioning for judicial review, TADA does not act to deprive them of this interest, if they wish to preserve it. The only other right that patients can invoke is the right to treatment. But, while patients have a right to refuse treatment, they do not have the right to demand it. Therefore, TADA does not violate due process. The one exception that should be made is for cases in which the patient is conscious. 71

Id. § 166.045 (a)-(b). Douglas B. White & Thaddeus Pope, The Courts, Futility, and the Ends of Medicine, 307 JAMA 151, 151 (2012). 73 See Thomas W. Mayo, The Baby Doe Rules and Texas’s "Futility Law" in the NICU, 25 GA. ST. U.L. REV. 1003, 1010 (2009) (showing how the TADA does not preclude patient access to the courts). 74 TEX. HEALTH & SAFETY CODE ANN. §§ 166.010. 75 See Mehlman, supra note 25, at 1169-88 (identifying the many disputes that have animated the medical profession during the twentieth century); see Carroll, supra note 50 (showing how doctors in the United States never have been able to effectively organize as a group). 76 See Quinlan, 355 A.2d at 647. 77 See O’Callaghan, supra note 28. 78 Id. 79 See Mayo, supra note 73. 72

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CONCLUSION

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Those who oppose the TADA and the right of physicians to refuse treatment in general misunderstand the nature of the relationship between patients and doctors. TADA proposes a model rule that represents a small incursion into the greater societal issues that shape the futility debate. There is only one amendment that would make TADA a better model: the inclusion of language drawing a distinction between patients who are conscious, or have the potential to regain consciousness, and those who do not.

To treat or not to treat: end-of-life care, patient autonomy, and the responsible practice of medicine.

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