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Pro-life suites: A moment to watch in Texas

The strange "futile care" legal situation in Texas has been watched by pro-lifers for some years. It used to be that Texas hospitals could discontinue vital treatment and let a patient die after the judgement of an "ethics committee" (now there's a job for an aspiring young philosopher with no true moral compass) with no notice or opportunity for transfer. Mind you, this original draconian policy was simply a power the Texas hospitals arrogated to themselves, and at first there was a vacuum in the law. No law addressed the matter. When this became known, there was pressure on the legislature to do something. But there was much controversy, and eventually the best that could be secured was to force the hospitals to give the patients and their families ten days notice (rather than no notice) before pulling treatment. As Wesley J. Smith says,

Governor George W. Bush eventually signed the bill into law in 1999 after right to life groups agreed to the compromise, never dreaming that patient transfers would become almost impossible to secure.

This, by the way, is important history. Next time some outrage happens in Texas (like the one that, God forbid, may be about to happen, which is the real topic of this post), and some smart-aleck lefty sneers, "Well, guess who signed that law? George W. Bush. And the right-to-lifers approved. Why are you complaining?" you will know what to answer: The 10-day law was an improvement on the previous situation, and the good guys involved thought transfers would be possible to obtain. (Righteous anger, however, is warranted over the untoward and misguided interference of the Texas Catholic bishops in 2007, which prevented a genuine improvement in the law. WJS outlines that in the linked article.)

As far as I know, subject to correction, all of the high-profile cases so far in which the Texas hospitals have exercised their right unilaterally to withdraw life-sustenance have involved ventilator-dependent patients. Of course, there could be many cases involving nutrition and hydration that we simply haven't heard about, but all the ones that have made it into the news, as far as I know, have involved turning off ventilators against a family's wishes rather than slowly dehydrating a patient to death.

That may be about to change.

Zach Fernandez, age twelve, was shot in the head during a drug deal on August 6 in Abilene. (I don't know whether Zach himself was involved in the drug deal or not. We'll hope not, but it's not relevant to whether he should be dehydrated to death.) He was transferred to a hospital in Fort Worth, which convened an ethics panel and declared Zach's continued care "futile" merely a week after his injury and initial surgery. Lest there be any unclarity: Zach is breathing on his own. This means that he is biologically unequivocally alive.

His doctors made sneaky use of a "do not resuscitate" order, which has come to be code in the medical world for "do not feed or give water," even though that isn't what it means. (If you think you may ever have to be a patient advocate, take note of that. Don't agree to a DNR lightly.) In Texas, doctors can put such a DNR on your chart without the consent of a patient's family. However, due to a procedural glitch, the ethics committee's meeting did not meet some sort of protocol, so their death order is not binding. Hence, they've had to reinstate Zach's feeding and hydration for now, and once they make another "determination," his family will have ten days to seek transfer for him. Obviously, this hospital isn't overly bound by procedure, though, so the family will need to be lynx-eyed to make sure they don't manage to rid themselves of Zach even sooner.

No doubt the death panel (now this is a death panel) will be sure to dot all its i's and cross all its t's next time. And transfers are hard to come by.

Not only would this be the first case I've heard of in Texas in which a patient has been dehydrated to death against unified family wishes and with no determination by a court that this is "what the patient would have wanted" (which can't be done in the case of a minor anyway), this would be the first such case I've heard of in the entire United States. I know this may sound like a death by a thousand qualifications, but all the other cases of dehydration I've known of in the U.S. have involved at least some family member's consent or an allegation upheld by a court of evidence of patient wishes. There was the case of Rachel Nyirahabiyambere, which was a very near thing, but she managed to hang on until, with legal help, her family got nutrition and hydration restored.

We really do not want Zach to be a horrible first in the country. Let's pray that his life can be saved.

Related note: A reader at Secondhand Smoke puts into the comments some quotations from the International Association for Hospice and Palliative Care’s “Manual of Hospice and Palliative Care.” In my opinion, these quotations show quite a strong bias in favor of dehydration. You can judge for yourself, but I find them very disturbing. They also make it clear that "palliative care" is another phrase to be very, very careful of, given the bias against ANH in palliative care medicine. Do not lightly agree to "palliative care only" for yourself or for anyone you love, if you are concerned about death by dehydration.

Comments (6)

From the article: "Informally, though, hospital officials told Zach's parents that they didn't want to treat their son anymore. Three days later, Zach was able to breathe on his own and no longer needed a ventilator."

And yet the doctor stuck a DNR order in his chart? Do not resuscitate from what? He wasn't dying.

Why is it so hard to get a transfer? And can they take the kid home if they want and have a nurse or doctor come in to see him now and then?

I've never fully understood the difficulty of transfer in Texas, whether it's especially a Texas thing, or what. My speculation is that the Texas hospitals are in collusion not to transfer. This isn't so implausible, since the original kick-patients-out plan back in the 90's was, in fact, a set of protocols agreed upon by a bunch of Texas hospitals. My second-tier speculation is that they've just all figured out that they can save money by not agreeing to the transfers.

I don't know what role money plays in this particular case. There's no mention of his family not having insurance. But it often does play a role in such cases.

Probably the hospital will try to deny them the right to take the kid home. He's obviously in bad shape. I really don't know what facilities they would have for taking care of him, but better that than his being dehydrated to death, of course. With a minor, and maybe even with an adult, I'm getting more and more the impression that hospitals can practically keep them prisoner. I was told recently that if you check your child out of a hospital against doctors' advice, you'll definitely get a visit from CPS. In Zach's case, that could even go to the point of the state's trying to seize custody, at which point I'm sure the state guardian would "consent" to his being killed.

This is beginning to sound hopeless.

Excellent, David, thank you! I've been wanting to find a follow-up on this case but hadn't yet succeeded. Just out of curiosity, how were you notified of the follow-up news?

Just a friend posting the link on her FB news feed.

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