Tuesday, May 01, 2007

Texas Catholic Bishops Support Futile Care Theory

This is pretty inexcusable: As readers of SHS know, Texas is in the midst of a political battle to amend the futile care law to prevent patients, such as Andrea Clark, from being denied wanted life-sustaining treatment. Currently the law permits hospital ethics committees--meeting behind closed doors with no open record, right to cross examination, or other due process legal procedures--to refuse wanted life sustaining treatment and cut off care 10 days later (other than comfort measures and palliation) if the family has been unable to arrange a transfer to another institution. This is often difficult because the patients are expensive to care for, and some suspect, because hospitals don't wish to stand against each other's futile care determinations.

HB439/SB 1094 would do away with the 10-day rule and require treatment to continue until a transfer can be effectuated. But now, Bishop Gregory Aymond, speaking for the Texas Bishops and the Texas Catholic Conference, has come out against this good approach and instead, supported maintaining a modified futile care permissiveness in Texas.

HB 3474, as currently amended in committee, would expand the waiting period from 10 to 21 days, but also permit hospitals to refuse new forms of treatment that might be needed by the patient during the waiting period. In his testimony in support of what would still permit hospital ethics committees and physicians to impose their values on patients/families, Bishop Aymond confuses a patient/family choosing to refuse life sustaining treatment with hospital ethics committees imposing their views that the patient should not receive it.

We believe, and the tradition of our Church has always taught, that a person should be allowed to die with dignity and have a peaceful death. We believe that that is in conformity to God's will and that God is the one who chooses life and death. It is the teaching of the Church that we should not interfere with that. We also realize that sometimes families, through no fault of their own, are really not able to make those decisions because of their involvement, because of the emotions.
This is little different than utilitarian bioethicists claiming that families shouldn't be able to make such decisions because of the guilt they feel or misplaced religious belief. But I guess we shouldn't be too surprised. Some Catholic hospitals have supported futile care theory all along. Indeed, Children's Hospital of Austin, where Baby Emilio is the center of a futile care controversy, is a Catholic institution.

There are reasons for this. Part of it, of course, is a sincere desire to do right by very sick patients, even if the patient does not agree. But I also think that "social justice"--a polite term in this instance for resource issues and money--is also part of the equation since we are talking about some of the most expensive patients for which to care.

I have spent most of today dealing with this development and will have more to say about it very soon.



At May 01, 2007 , Blogger Fredi said...

The bishops of Texas need to restudy the Catechism of the Catholic Church, particularly paragraph 2278, which states: "Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of "over-zealous" treatment. Here one does not will to cause death; one's inability to impede it is merely accepted. The decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected." (emphasis mine)

I believe, as I think you do, that the Church was not referring to hospitals, doctors or bishops as "those legally entitled to act for the patient."

Serious Health Care and End of Life Decisions

At May 01, 2007 , Blogger littlepig said...

Wesley Smith,

I read a nice article that you wrote back in ?2005? about hospice care and how it related to dying with dignity and comfort. I am then somewhat confused by your complete lack of support for ANY type of futility law.

You seem to always want to support the parents as the ultimate decision makers; no matter what. While I 'nearly' always agree with that, would you still support the parents with the following case?

Persistent vegetative state, progressively worsening neurological exam and no hope for recovery from multiple specialists at multiple institutions across the country. Also with new respiratory and cardiac failure where the parents where demanding the patient be placed on ECMO to keep him alive as long as possible. (By the way, placing the patient on ECMO would provide the physiologic response that it intended)

At May 01, 2007 , Blogger Wesley J. Smith said...

Hi, littlepig. I would not support people being forced into hospice against their will.

I don't know what an ECMO is, but if it would provide the desired benefit of sustaining life, as opposed to not doing so, I am not sure what the basis would be for refusing.

If it is financial, then these decisions to ration should not be ad hoc but out in the open and democratically debated. If it is based on an ethical opposition by medical personnel, they should continue treatment pending another physician taking over. Otherwise, they abandon the patient or impose their values, which is not their professional responsibility. If it is truly harmful to the patient, e.g. intense suffering (remember, I don't know what you are asking in your hypothetical), then the proper way to refuse sustained treatment is in court with the family provided representation.

If it is physiologically futile, it should not be provided.

This being said, I assume you have proposed an extreme case. But futile care cases only begin at the extremes--which Baby Emilio might also be. But this isn't how futile care will play out. Some policies I have seen would refuse treatment for PVS, including feeding tubes. One "futilitarian" I spoke with admitted that cutting off wanted interventions at the life-sustaining level was just to establish the principle. After that, he wanted to be able to refuse "marginally beneficial" care. I asked for an example and he said an 80 year-old woman seeking a mammagram.

Few people will put their loved ones who are in the last stages of dying through intensive and painful procedures. Education and cooperative communication is the answer to these dilemmas--not coersion. Otherwise, patient autonomy becomes a one-way street.

Thanks for your inquiry.

At May 01, 2007 , Blogger littlepig said...

You recommend that the 'proper way to refuse sustained treatment is in the court with the family provided respresentation'??? What court process are your referring to, since you seem to blast all current laws and methods to resolve these issues?

At May 01, 2007 , Blogger Wesley J. Smith said...

Well, it strikes me that if there are cases in which providing life-sustaining treatment is just beyond the pale, the way to handle it is in open court, not in institutional ethics committees. One approach could be to revoke decision making authority of the person insisting on continuing treatment and appointing a guardian. This would require very weighty evidence since the legal presumption would be against revoking authority. But it could be an escape valve against the rare extreme case where continuing to sustain life would be a terrible cruelty, such as the family insisting that a 90-year-old metastatic cancer patient who weighs 90 pounds be given forceful CPR (although I think that might be physiologically futile).

But I don't think most cases are going to be extreme. Most are going to involve disputes over fundamental values, such as when a life is worth living. Is being alive in an apparently permanent unconscious circumstance worthwhile? Reasonable people can differ. In the end, such decisions are not medical and don't belong to medical personnel but to patient/family/surrogates. Otherwise, you just end up with the flip side of forcging people to stay alive on machines against their will.

Thanks again for coming by SHS.

At May 02, 2007 , Blogger Tony Jones said...

I'm not surprised that the church acted that way.

In the OT, cripples and those with defects were treated as human refuse.

At May 02, 2007 , Blogger LifeEthics.org said...

The Church is not treating those with defects "as human refuse." The Bishops of Texas, at least one who probably has more information from the doctors at his institution than any of us here, are of the opinion that the most compassionate treatment for Emilio is comfort care.

See, this is just the sort of wound that is opened when the extreme vitalist viewpoint masquerades as opposition to "futile care" laws.

How cruel it would be for Emilio to go through one more re-inflation of his lungs - from atelectasis or whatever. It would be especially cruel to escalate his level of treatment, adding dialysis or ECMO (a heart/lung machine used for extended periods on children who need time to heal).

It's also cruel to those who are living to paint each case as "those evil doctors (and now, "evil bishops") are against us and want to kill us all to save money."

Just as it was not true that the current law required that patients be transferred to another facility (one of the misunderstandings often repeated last spring), it's unlikely that a child who is covered by Medicare and Medicaid is being caused die for financial reasons. That certainly wasn't the case for Andrea Clark, who had private insurance. and who died when her family decided to turn off her ventilator - not after brain death.

While it's true that there are bad actors out there who want to kill patients, these celebrated cases in Texas are not examples. Andrea Clark actually died when her family decided to instruct her new doctor to turn off her ventilator - and not after brain death. But she died in the same ICU and while covered by insurance.

In fact, Wesley, the only case that I've seen go through the courts was Terri Schiavo. That helped her, didn't it? That judge deemed oral, natrual hydration and nutrition as "experimental."

Which is one more reason to avoid medical practice by litigation and legislation.

At May 02, 2007 , Blogger LifeEthics.org said...

BTW, Wesley, how many times should that 90 pound 90 year old gentleman be subjected to CPR at his family's demand?

CPR can be performed by the family members themselves, at home. It's very simple to train a family member to use a gravity or pump-fed feeding tube. I've sent families home 20 years ago with instructions to buy instant breakfast mixes (just as many calories and vitamins, more fiber - and much cheaper - than the prescription mixes then available), after they were trained to use feeding tubes.

The actual disagreement is medical: there are always more and higher interventions that are considered standard of care in the ICU. The physician writes the orders for and often carries out the actual intervention. You would have him suspend his medical judgment indefinitely.

At May 02, 2007 , Blogger Jerri Lynn Ward, J.D. said...

Emilio's mother is not asking for escalation of care. She is asking for less care short of extubating Emilio. She wants a trach and g-tube so that Emilio can be more comfortable and that she can hold him longer and more often--and so that the whole family can visit.

The hospital is denying visitation to all but immediate family and a couple of volunteers who relieve Catarina.

Also, Andrea Clarke's family did not have the ventilator removed. I don't know where you got that.

At May 02, 2007 , Blogger littlepig said...

It is the 'escape valve for rare extreme cases' that prompted Texas to enact this law. Remember, it was fully supported by most of the right-to-life organizations. Although it appears some changes may come from the current legislature, it is my understanding that these changes will basically leave the law intact in its current form.

Why was this law supported by right-to-life organizations? I was told that it was because they were certain transfers would occur. Surely, some doctor would support the families wish to continue care and agree to be that person. Oops. Bad call. It is now obvious to all that there are the extreme rare cases where care is obviously futile and not in the best interest of the patient.

So who makes the decision? Actually, it is NOT the physician, it is the ethics committee that consists of individuals from the community with interest and knowledge to help with difficult decisions. You suggest that the courts should remove custody and assign a guardian to make this decision? How is that any better? Also, the ethics committee is not private and secret. Emilio's ethics committee was attended by his family, and the many, many lawyers that the family has involved. How is that private?

Again, there are rare extreme cases that need some type of resolution process. The process above seems reasonable to me. As a final safety measure, it allows the patient to be transferred to another facility. Why has Emilio not been transferred? His lawyer, Jerri Ward says that "EVERY physician and nurse she has talked with" thinks it is horrendous that he has not received a trach and g-tube. If this is true, then why has he not been transferred to another site? Again, more lies about this case, and all along little Emilio continues to suffer. Very tragic.

At May 02, 2007 , Blogger littlepig said...

Jerri Ward,

What do you mean she is 'asking for less care short of extubating Emilio'? Isn't a trach and a g-tube 'more care'?

Why is the hospital denying visitation to all but immediate family and a couple of volunteers? Exactly who is not allowed to visit and why?

At May 02, 2007 , Blogger Wesley J. Smith said...

Lifeethics: Whatever the merits or demerits of Emilio, that case is not grounds for the Bishops supporting futile care theory generally and giving such value laden decisions to strangers in ethics committees, hospitalists, and others rather than with the patient and family.

Terri Schiavo, as you know, was not a futile care case. Futile care would be Michael and the family agreeing to provide her with support and the ethics committee of a hospital or nursing home saying no, she can't have it.

The litigation saved her life for years and granted the family the thin consolation that they at least did all they could under the law to keep her from being dehydrated.

At May 02, 2007 , Blogger Wesley J. Smith said...

I interviewed some of the RTL folk who supported the law. They did so, not because they support futility, but as a compromise because otherwise, they feared patients would be doomed to a policy of no time for transfer per the originan Houston Hospitals protocol. GWBush wouldn't sign the bill unless RTL agreed. They agreed because they never dreamed that other hospitals would refuse these patients, which is now happening, hence the change of mind.

At May 02, 2007 , Blogger Jerri Lynn Ward, J.D. said...

Little Pig,

The g-tube and trach are simple procedures that will allow Emilio to have the tubes removed out of his fact--thereby giving him more comfort. I deposed a pulmonologist yesterday who said that when he does lung transplants, his patients complain more about the endo-tracheal tube than they do about the incision in their chests.

With a trach and g-tube, he can be moved to a lower level of care that does not include constant monitoring or testing. He would have food, water, air and meds for seizure control. And, he would have his mother and family.

His mother can't hold him on her lap except on rare occasions when the nurses have time to get him out of bed. With a trach and g-tube, the mother could lift him out of bed and hold him all the time.

The reason they restricted visitation is because some reporters got permission from media relations to go into the unit without their cameras and recording devices as long as the mother accompanied them. As soon as they entered the unit, the PICU staff had them escorted out and then retaliated against Catarina by barring all but immediate family. I had to go to the court to get an order that 2 volunteers could go into the room to relieve the mother and grandmother when the sleep, eat or attend to other matters.

At May 02, 2007 , Blogger Jerri Lynn Ward, J.D. said...

By the way Little Pig, I noticed that you called me a liar in your last post. Prove that I am lying. Do you know who I have talked to outside the hospital? No you don't.

Have you heard the terms libel and defamation? Do you know the consequences for that?

It is very stupid to defame a lawyer.

At May 02, 2007 , Blogger Tony Jones said...

To me, the Schaivo case showcased the far Christian Right, and how they valued a woman in a vegetative state more than people who could actually feel pain and wanted to live, but who were unable to afford the treatment.

Deaths from world hunger: Over 8 million annually.

Deaths from the Terri Schiavo case: 1 and NOT counting.

Hmmm... Which should we be protesting? Both? Then why did the fundies spend so much time sending death threats and offering bounties to anyone who would kill Michael Schiavo or Judge Greer?

At May 02, 2007 , Blogger Wesley J. Smith said...

littlepig: Please don't accuse someone of disseminating "lies" here at SHS, without clear proof. Lying means an intent to deceive. Someone can misstate without lying. Someone can be wroing without lying. Someone can use hyperbole and not be lying. If you think Jeri (or anyone) is wrong about something, fine. Please so state. But don't accuse someoone of lying. Thanks.

At May 02, 2007 , Blogger JacqueFromTexas said...

Remember, it was fully supported by most of the right-to-life organizations.

No, it wasn't. Right to Life organizations (more like organization, because it was only Texas Right to Life, with help from Burke Balch of the National Office) supporting amending the law to allow the 10 day grace period, not because they support the law, but because 10 days offered some reprieve for those the hospital would choose to kill from medical neglect. Essentially, TXRTL did all they could and should be commended for what they were able to accomplish given the money and power they were pitted against (think Texas Medical Association). And as of right now, it's just one right-to-life organization (Texas Alliance for Life, formerly Greater Austin Right to Life) against two (Texas Right to Life and Texans for Life Coalition). Since Texas Right to Life is the primary mouthpiece for removal of the time limit against staunch opposition from TX Alliance, one must wonder how much of this is simply a vendetta against what TX Alliance views as TXRTL's "pet project." Hmmmm. I'd like to think we wouldn't be that petty, but it sure looks it.

And Andrea Clark's family never removed care from her. I'll double check this but I'm 99% certain that this is wrong.

I am going to say something that will likely incense everyone, but eh, I'm used to it: Emilio's health is irrelevant to the objective evil of futility care. Health care decisions (especially those of life and death) do not belong unchecked in the hands of doctors. Even when doctors are right and families are wrong, doctors are not permitted to make such calls.

I have never denied that Emilio is a very, very sick little boy. And I have no reason to doubt Father Tad and others that agree that in this situation, removal of care is permissible- BUT, that doesn't give that right to the hospital. Suppose your son was in a similar state and you refused to remove care when it is morally permissible to do so (but not morally obligatory). Is it acceptable for me to usurp your rights and make that call on your behalf? No. It's like Fredi's quote from the Catechism: "The decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected." Don't get me wrong, Emilio's well-being is my primary concern, as well as all the other cases I have studied/worked on, but the objective evil of imposing the doctor's wills on patients resulting in death remains a battle that must be fought.

Futility Care, like abortion, is objectively evil. The circumstances of the patient are irrelevant. Talking about Emilio's situation reminds me of the "hard cases" debates in abortion: rape, incest, life of the mother. These situations elicit sympathies and are harder to debate but the moral absolute remains that you can't target an innocent human life for destruction. Debating Emilio's treatment to me is like debating circumstances for a woman seeking to abort. Both are irrelevant to the moral imperatives at hand. In this case (unlike so many other futility cases): yes, this baby is very sick. Let's highly publicise this case to garner public support to continue removing care from those who aren't? That's essentially what is happening.

At May 02, 2007 , Blogger JacqueFromTexas said...


Terri's case was the starvation and dehydration of 1 disabled person, but set a precedent for the treatment of other disabled people dependent on artificial nutrition and hydration. Since we starved and dehydrated her to death, how is that not treating someone like "human refuse"? You obviously lack a grasp of the scope and weight of that situation for all human beings who might one day become vulnerable as she was.

Since you are not understanding, let's put this another way:

Those 8 million people that die annually from starvation, how many lives have you attempted to save?

Those Christian Fundies are not attempting to starve anyone to death they way you and your ilk were so gleefully gunning for Terri's demise after 14 days of torture. Rather, these Christian Fundies are responsible for a majority of the world's charity and starvation relief efforts.

Tell you what, you step up to the plate and battle world hunger and then you can try to impugn our efforts to save a disabled woman from a horrific and unnecessary death.


At May 02, 2007 , Blogger Lydia McGrew said...

I agree with Wesley that the bishops's statement is irresponsible and foolish. I'm trying to imagine what they are thinking. They seem to believe several things, all of which IMO are false: 1) They seem to believe that the Catholic Church has some extremely definitive teaching to the effect that (for example) resuscitation and a ventilator _morally must_ be removed from a patient at a particular point. In other words, they seem to believe that people who use ventilators in situations where they, the bishops, would opt not to have one, are actually _sinning_ and doing something clearly contrary to Catholic teaching. This is baloney. 2) They seem to believe that giving the decision to futile care committees at the hospital will help to insure that such "sins" as those named in #1 will not occur, but that it will not cause the denial of care in other ways that themselves contravene Catholic teaching. This is stupid. While the futile care commissions will almost certainly prevent the use of ventilators and dialysis (for example) in cases where the bishops apparently think it would be a "sin" to have them, they will also _almost certainly_ eventually withdraw care, such as food and water, where such withdrawal is itself *far more clearly* contrary to Catholic teaching. What sort of naive people do these bishops have to be to think that hospital futile care commissions will be a sort of "Catholic standard of care" enforcer?

At May 02, 2007 , Blogger littlepig said...

Jerri Ward,

Although I did not call you a liar, using the word 'lies' obviously touched a nerve; so I'll change to word to inconsistencies.

We still end up at the same point. Why has Emilio not been transferred to a different site, since EVERY physician you have spoken with agrees with him receiving a trach, including the 'prominent pulmonologist' that has reviewed the chart.

Just a quick question while you are threatening me with libel and defamation. Is it ethical for a lawyer to post specifics of a case over the internet???


It is my understanding that George Bush only signed this law AFTER approval from Texas Right to Life. Why would they support it (even in its current form) if not supporting would have resulted in Bush not signing the law?

At May 02, 2007 , Blogger Tony Jones said...

Jacque - I'm sponsoring a number of children in Africa and SE Asia.

The Christian Fundies could have saved many more lives if they spent money on charities instead of travelling to Terri's hospice.

The Schiavo case went through the courts, due process was followed, Terri's family had their chance to appeal, etc.

I wasn't "gleefully gunning for Terri's demise after 14 days of torture". In fact, the only reason why it took so long is because the fundies and misguided disabled organisations oppose anything quicker.

A quick death is also opposed by the hypocritical Texas Medical Association that supports futile care theory.

At May 02, 2007 , Blogger Wesley J. Smith said...

Tony: "Fundies" as you call them, were first on the ground after the tsunami, have been all over the issue of Darfur, are some of the most vocal opponents of human trafficing, but why deal with them as people when you can smugly denigrate? I assume you believe Terri should have been lethally injected? If so, it demonstrates my point that assisted suicide/euthanasia isn't about terminal illness, and in the end, not about "choice," either.

At May 02, 2007 , Blogger JacqueFromTexas said...


It is my understanding that George Bush only signed this law AFTER approval from Texas Right to Life.

RIGHT! You are correct! Because only the TXRTL version had the 10 day grace period, which, as I have established, is 10 days better than NO grace period.

Why would they support it (even in its current form) if not supporting would have resulted in Bush not signing the law?

Because prior to that, there was no grace period and as Wesley has mentioned, there was an agreement with Houston hospitals not to allow futility transfers. This 10 day period gave people a chance.

I'll quote TXTRL's Dr. Joseph Graham on this one:

"Because both Texas Right to Life and National Right to Life were parties to the negotiations that led to the formulation of the language of the Texas Advanced Directives Act, the true origin and intent of the bill [Texas Futile Care Law] has been misconstrued. The purpose of the Act was not to sanction the heinous practice of killing the most helpless by starvation and dehydration as done to Terri Schiavo. The Supreme Court of the United States in the infamous Nancy Cruzan decision had already given legal sanction to that vile practice. Rather, the intent was to give patients who had already been sentenced to death by their medical caregivers at least some opportunity for reprieve by way of alternative care – if possible" [emphasis mine]

Since you are uninformed about the status of futility protocols prior to the 1999 law, here's a history lesson, also courtesy of TXRTL:

"Prior to passage of the Texas Advanced Directives Act in 1999, an article appeared in the August 1996 edition of the authoritative Journal of the American Medical Association that outlined legal procedures for hospitals and medical personnel to follow in order to withdraw patient treatment and to unplug the machines that were preserving patients’ lives, thereby causing their deaths. These actions included the denial of food and water. Such procedures could be done for a variety of reasons, including patients’ continued existence constituted a financial burden to the institution. The set of procedures outlined was called The Houston Plan because the ‘Plan’ was developed in Houston, Texas and resulted from a series of meetings that involved representatives from every major hospital system in Houston.

The following year, during the 1997 session of the Texas Legislature, a bill was introduced (Senate Bill 414). This bill included a provision stating that any medical doctor in Texas who denied lifesaving treatment to a patient requesting such treatment would be free of any culpability either civil or criminal if the patient were to suffer harm or death as a result of his decision. Passage of this bill would have given sanction to active legal involuntary euthanasia in Texas. Texas Right to Life fought against passage of the bill with all the resources at our command. Rep. Longoria of San Antonio introduced our desired amendments that would have given the patient the right to receive continued lifesaving treatment until another caregiver could be found who would save his or her life. These amendments were passed in the House of Representatives but were stripped from the bill in the conference committee meetings. Consequently, Senate Bill 414 was passed by the legislature and forwarded to Governor Bush for his signature in order to become Texas law.

As president of Texas Right to Life, I had the opportunity to meet with the Governor and to discuss the nefarious aspects of Senate Bill 414 awaiting his signature. Governor Bush immediately understood the death dealing implications of the legislation and without hesitation used his veto to consign Senate Bill 414 to the trash bin where it properly belonged. He did so knowing full well that this action would incur the wrath of powerful organizations such as the Texas Medical Association, The Texas Bar Association and the Texas Hospital Association. His action was that of a truly dedicated and courageous Pro-Lifer! When he vetoed the legislation, he further recommended that all interested parties, including Texas Right to Life and representatives of the legal and the health care communities should meet and discuss the relevant issues. The goal of these meetings was to arrive at mutually acceptable language that could be incorporated into legislation that he and we could accept.

What followed was two years of protracted and oftentimes mind-numbing negotiations. The negotiator for Texas Right to Life was Burke Balch, J.D., who is the director of the Robert Powell Center for Medical Ethics, a division of the National Right to Life Committee. As the nation’s premiere expert on medical ethics and particularly end-of-life issues, Burke proved to be an outstanding defender of the helpless innocents while working under the most difficult of circumstances. The position of Texas Right to Life was and remains that if a doctor or hospital should decide for whatever reason to terminate life support to a patient, including denial of food and water, the caregiver must continue such support until another caregiver can be found who will keep that patient alive and provide the care necessary to do so. All other parties to the negotiations were adamant in their refusal to entertain such conditions and fought to retain the existing situation where a patient who was denied life saving treatment had NO legal right to ANY grace period afforded to secure alternative sources of treatment.

With great reluctance, Texas Right to Life agreed to a mere 10 day grace period. Due solely to the negotiating skills of Burke Balch, this niggardly concession was wringed from the representatives of the legal and medical professions who from the beginning of negotiations wanted NO grace period whatsoever to be included in the proposed Advanced Directives legislation. Only the continued threat of another Governor Bush veto had forced them to the negotiating table at all and likewise evoked their concession to the 10-day waiting period before beginning the execution of the death sentence on the helpless patient. Then-Governor Bush was the true hero of this, using his gubernatorial authority to extract from obdurate medical negotiators a concession that they insisted constituted an excessive financial burden.

The Advanced Directives Act that is now the law of Texas mandates that hospitals and doctors provide 10 days notice of their intention to withdraw life-sustaining treatment, including the denial of food and water. During the 10-day grace period, the health care facilities are to assist patients or their surrogates in finding a facility willing to receive the patient and to continue the treatment. Granted, these transfers are very difficult to secure, but prior to the present law, NO protections or grace period were afforded. The law works both ways. If a doctor disagrees with the wishes of a patient or the surrogates and wants to continue lifesaving treatment, the 10 days allows time to dialogue and hopefully reach an agreement before any action is taken. In either case, treatment is continued during the grace period."

I hope that clear's up your misconceptions.

At May 02, 2007 , Blogger Tony Jones said...

As I have mentioned before, Wesley, a lethal injection is much more humane than starvation or terminal sedation.

Terminal sedation is frequently combined with self-starvation and dehydration to hasten death.

And please, don't pretend that there aren't situations in which you wouldn't beg for death.

At May 02, 2007 , Blogger JacqueFromTexas said...


I wasn't "gleefully gunning for Terri's demise after 14 days of torture". In fact, the only reason why it took so long is because the fundies and misguided disabled organisations oppose anything quicker.

Anything quicker? Like stabbing, poisoning, shooting, electrocution? Tell me, which method would you support to murder an innocent disabled woman?

I am glad that you sponsor impoverished children. I just pray none of them become disabled, because you certainly have a "solution" for that!

At May 02, 2007 , Blogger Tony Jones said...

Well, I can see why you don't like the term "vegetative". Would you prefer "cortically dead"? Because that's what she was, and that's what the autopsy proved.

Tell me, would you sacrifice your life to save someone like Terri? Be honest now.

At May 02, 2007 , Blogger JacqueFromTexas said...


No, she wasn't "cortically dead" or dead in any sense of the word. She was brain damaged- disabled, handicapped, impaired. If you're going to use terms, use accurate ones.

"Someone like Terri?" As opposed to someone like you? Someone like Terri has less value than someone like Tony? You're saying disabled people have no value? Human refuse?

The answer is yes, I would sacrifice my life to save hers. I can't say I'd do the same for you, especially with your bigotry towards the disabled and your deathwish for those you deem "below" you. I'm simply not that good of a person, yet.

I have responded, but I won't indulge any more of your comments. They are fruitless and off topic.

At May 02, 2007 , Blogger Purushottam said...

Mr. Smith:

I'm curious about the details of your position on futile effort - for example, would you say that a family has the right to request continuing life support in cases of brain death? If an individual has asked for all possible efforts to be undertaken to save his life, does it make any difference whether he is kept biologically alive in a brain dead state? This is akin, of course, to the 'tree falling in a forest' question - since without cortical activity and consciousness, a person cannot know whether or not they are alive, is it meaningful to keep them on life support?

I am not claiming that such a case is representative of the question at hand, but I think it is useful to stake out the extremes of a problem.

At May 02, 2007 , Blogger Wesley J. Smith said...

Purushottam: Thanks for dropping by.

No. IF properly diagnosed, death by neurological criteria is dead. There is no right to have medical interventions performed on a dead person. I have written on this in CULTURE OF DEATH and in some articles. Don't want to debate "brain death" on this thread, though. Thanks.

At May 02, 2007 , Blogger Fredi said...

I am relieved to know that so-called "brain death" is not open for discussion on this thread.

I recommend reading Futility policies: Part of the culture of death by Nancy Valco, which was also published in the St. Louis Archdiocesan newspaper.

At May 02, 2007 , Blogger littlepig said...


Thanks for the informational history concerning this law in Texas. I was aware of most of this information, but if accurate then I have learned some things.

(I am a little concerned for how accurate it must be though since it contains comments such as '...to the 10-day waiting period before beginning the execution of the death sentence on the helpless patient'. Not a very objective opinion if you ask me.)

At May 02, 2007 , Blogger JacqueFromTexas said...


Well, it was written by the President of Texas Right to Life towards a pro-life audience. But it certainly explains the Right to Life groups' rationale for supporting the law.

I got that document because I was infuriated that Bush signed a law that gave hospitals lethal autonomy with a mere 10 days of grace. That letter was TXRTL's response- and I think people like me were the intended audience, hence the "[Bush was a]dedicated and courageous Pro-Lifer!"

At May 02, 2007 , Blogger littlepig said...


I am suprised to hear that there was resistance to a waiting period in earlier revisions of the law. Why would the hospitals not initially agree to a waiting period?

Since there is now a waiting period, where did the 10 days come from? Is that too long or too short? What is involved in transferring patients from one hospital to another?

At May 02, 2007 , Blogger Wesley J. Smith said...

From a reader: "I am a nurse here at OHSU in Portland Oregon. I am also a practicing Catholic. ( How good I am is for God to decide.) The amount of money spent and yes, wasted on seemingly impossible conditions of some patients is staggering. Lets suppose I could advance medicine to a point of saving lives and yet at the same time bring me to financial ruin. Why should I bother to invest my time and money to bring me to a point of destitution. How some of these hospitals continue to operate under this burden of infinite care with out regard to cost, I can't understand."

At May 02, 2007 , Blogger Purushottam said...

Mr. Smith:

I didn't intend to discuss brain death, merely trying to stake out some boundaries. My main problem with your position on this issue is that it appears politically motivated and not philosophically/ethically consistent. You appear to be agreeing that in principle what the law allows is probably in the best interests of the patients it affects. You said in an earlier comment that

"Few people will put their loved ones who are in the last stages of dying through intensive and painful procedures. Education and cooperative communication is the answer to these dilemmas--not coercion."

The point is - in the case of individuals who are NOT putting their loved ones through unnecessary and painful procedures, the law has no effect. Since there is nothing in the law that prevents education, it is simply going to address those few cases where the family is choosing painful procedures and where communication has failed. Perhaps the waiting period should be longer to allow more time to educate and communicate, but in principle there is nothing wrong here.

The slippery slope argument that such a law will eventually lead to a law that allows denial of marginal care is a separate matter. Philosophically, if you agree that there is nothing wrong with THIS law, then the fact that it MAY in the future lead to a law that you disagree with is hardly a (philosophical) reason to oppose it. There is nothing stopping a legislator from proposing a marginal-care-denial law today. Your position may be politically sound, but it is philosophically lacking. Of course, perhaps you are not claiming (or attempting) to be purely philosophical/ethical in this... in which case, you can ignore my comments completely.

At May 02, 2007 , Blogger LifeEthics.org said...

Jerri and Jacque,
Andrea Clark was said to have had a heart attack, but there wasn't ever a determination of brain death. So, they decided to turn off the ventilator and stopped the dialysis rather than adding a pacemaker and/or add new resuscitations. (I agree with their decision.)

I've been attending the Coalition meetings on the reform of the Texas Advance Directive Act for a little over a year. We had all come to an agreement that there needed to be time added before the Ethics Committee and to the period allowed for transfer. Everyone agreed that the TADA should be amended to ensure it was never invoked to remove food and water. These issues were pretty well set back in November or earlier.

Unfortunately, Texas Right to Life approached Representative Hughes and Senator Duell to write what TRL has called "our bill." At the March 2007 meeting, the TRL representative told us all that she had her own bill, so she was not interested in even discussing a compromise.

As Jacque has said, Emilio's case isn't about Emilio, anymore.

I think the determination of pain meds and the exacerbation of medical conditions by the feedings shows the real problem - the objection to the use of medical judgment. We know that morphine, at least, doesn't cause earlier death in patients and you note that there are times that the medical condition can be made worse by feedings. ( http://www.wesleyjsmith.com/blog/2007/04/proper-pain-control-does-not-hasten.html )

The risk of "treat until transfer" is that the doctor becomes enslaved to terminal patients - the doctor will be required to repeatedly act against his medical judgment - without an end in sight. CPR until the pacemaker, then the ventilator, then the pressors, etc., for months. If his skills don't cover the treatment demanded, he's stuck.

The other outcome was predicted by one of the hospital ethicists that I talked to last week: when he's called for a consult from now on, *he* will immediately seek a court order for a hearing in court and the appointment of a guardian ad litum. If others follow his lead, then every case will end up in court and none of the families will actually be in charge ever again.

At May 02, 2007 , Blogger Tony Jones said...

PVS is also known as cortical death:


From a neurologist: "PVS, or "cortical death," is the irreversible loss of the part of the brain controlling judgment and insight. Once cortical death occurs, personhood as we know it is gone."

Now, personhood may not matter to you, and you may define it differently, but if I was in a PVS, I would have no "best interests" and would like my body to die as soon as possible to give my family and friends some closure.

At May 03, 2007 , Blogger Wesley J. Smith said...

Be careful what you ask for Tony, you just might get it. But, the point is that YOU should be the one to make that call, not a hospital ethics committee.

At May 03, 2007 , Blogger Wesley J. Smith said...

P: I have been advocating the eradication of the Texas law since I first heard of it. Futile care theory creates an implicit duty to die. It denies the intrinsic value of human life. It presumes that the values of "ethicists" and physicians matter more than those of patients and families. It states that extending life, when that is what the patient/family wants, is not necessarily a central purpose of medicine. It is ad hoc health care rationing. It is a denial of autonomy. It is wrong in and of itself, in principle and almost always in practice, which is beyond the slippery slope, which by the way, would also be very real.

At May 03, 2007 , Blogger littlepig said...

So in the end, for you this is a black and white issue. Previously you stated that there are rare exceptional cases where parents do the wrong thing. But that is OK with you and the hospital, physicians, and nurses should have to deal with it every day just to meet your ideological view. Again, as everyone continues to post, the case in Texas has nothing to do with a little boy who has lost all dignity and will continue to suffer as games are played in the courts.

If autonomy is so precious to you, then patients should have the right to force physicians to euthanize them. Parents should also be allowed to beat their children if they believe it is in the childs best interest. Doctors should never be allowed to give blood to Jehova's Witness patients - something the courts are happy to over-ride on a frequent basis.

Very disappointing that when decisions get tough, you revert back to black-and-white in order to avoid the real issue; there is a little boy that is nearly brain dead, getting worse, and the mother with her lawyers want to force the hospital, doctors, and nurses to provide him with aggressive treatment for selfish and political reasons. Where is the justice for this little boy?

At May 03, 2007 , Blogger Lydia McGrew said...

THERE IS NO LITTLE BOY WHO IS NEARLY BRAIN DEAD. WHERE THE DICKENS DID THAT CLAIM COME FROM? (And I'm not sure that there can be such a thing as "nearly brain dead." Isn't that like "a little bit pregnant"?)

At May 03, 2007 , Blogger Wesley J. Smith said...

littlepig: You are not paying attention. This goes beyond Emilio. It isn't up to YOU, assuming you are a medical professional or an ethicist--no matter how altruistic your motive--which in these cases I think we can almost always concede. IF, as I have repeatedly stated, the desired life sustaining treatment is truly a cruelty, if it is to the point that it is actually abuse, then the law should be involved in an open forum with both parties having a right to present their cases, with the burden of proof on doctors/ehticists who do not wish to sustain life and an attorney provided for the resisting family if they can't afford one of their own. Why is that so hard to understand? Benefits of doubt, my friend. Otherwise, the danger of Star Chamber justice becomes all to real. Othewise the values of the institution, with money issues in the back of the mind, will predominate.

Euthanasia (killing) isn't a medical act.

But futile care and euthanasia have common links: Both say that there are lives not worth living and saving, both can be about money.

At May 03, 2007 , Blogger littlepig said...


Initially you post information stating that Emilio's liver and gut are not working properly. Then you take it back admitting that you didn't know the facts. You post desparaging remarks about the goals of doctors and nurses, stating they can not be trusted and assuming that they have some alterior motive. Now you post that there is not a little boy that is nearly brain dead. What words would you use to describe his current neurological condition? Do you have any facts on his current condition?


I am paying attention, I get it, and I understand your point as well. I disagree strongly that 'money issues in the back of the mind' play a role in these issues to the doctors and ethicists. I am also curious what kind of jury or judge you would want to make this decision if it was held in an open forum as you suggest. In the end, I still think you will only support the parents point of view, and disagree with any attempt to intervene. (Just like when TRTL went along with the current law, and now are trying to back out and get it changed) I am not saying the current law in Texas is ideal or even close to it, but it is the ONLY mechanism that hospitals and doctors have currently to protent what they believe is the best interest of their patients.

BTW, have you ever been involved in a hospital ethics committee, or been allowed to observe? They typically have outside individuals, separate from the hospital in this role.

At May 03, 2007 , Blogger Wesley J. Smith said...

littlepig: I have represented a client (as a lawyer, pro bono) in front of an ethics committee meeting, called by a physician who was so furious his face was white, because the wife of an Alzheimer's patient wouldn't let him pull a feeding tube. The poor woman was in her 80s, had agreed to a DNR and no antibiotics, but didn't think her husband would want to have his sustenance cut off. She was scared to death and could not have stood up to the power and authority of the physician.

It was a very intimidating atmosphere--even for me. All the committee members knew each other and were very friendly with the doctor in question. They had shared institutional attitudes. I was able to prevail only by threatening to sue (in very dramatic fashion, I might add). Then, and only then, did common sense prevail and, at my suggestion, we changed doctors. The man died three years later, and the wife is so grateful that he wasn't dehydrated. But if the committee had the power to refuse, which it didn't, it might have gone differently.

I am a big fan of ethics committees. The people on them are dedicated and desire to do the right thing. Indeed, I am on an ethics committee at a local hospital.

But turning ethics committees into quasi-courts is bad for the committees and bad for medicine. Ethics committees, in my view, should be mediating bodies. That is where they can do the most good. That is where they do termendous good. But they should not be deciders and private committee meetings should not be turned into the equivalent of trials.

Judging is for courts.

At May 03, 2007 , Blogger littlepig said...

Wesley: The ethics committee got it right. They did not agree with the doctor. And it was probably very easy to find another doctor to assume this man's care. So the system worked for this man. (It is also unfortunate that his wife had to endure the extra stress)

Thank you for the recent discussions concerning this topic. I have a better appreciation and understanding for your point of view. Thanks again.

At May 03, 2007 , Blogger Wesley J. Smith said...

Thank you for your contributions. Please continue to drop by and speak your mind.

At May 05, 2007 , Blogger Fredi said...


At May 06, 2007 , Blogger Lydia McGrew said...

For the record, I just saw little pig's 5/3 post: He appears to have me confused with someone else. I was one who challenged some of Life Ethics's characterizations of Emilio as having a gut and liver shutting down. So I certainly never posted such statements myself. I'm not sure how that confusion came about.


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