A recent court ruling allows a family to keep a patient on life support over the objections of the clinical team and the hospital ethics committee.1 This carries important implications for ethics committees in general, says Thaddeus Mason Pope, JD, PhD, HEC-C, professor of law at Mitchell Hamline School of Law in St. Paul, MN.
“Inappropriate treatment cases have received significant attention in both the legislature and courts over the past few years,” Pope notes.
The most notable recent case involved an infant whose family disagreed with doctors about withdrawing life-sustaining treatment.1 The case centered around the Texas Advance Directives Act, which gives doctors the right to stop treatment if they believe treatments are futile and are causing harm, after a review by the hospital’s ethics committee.
In January 2020, a court ruled the baby could be removed from life support, but the Texas 4th District Court of Appeals reversed that decision in July 2020. The parties appealed back and forth all the way to the Supreme Court, which declined to review the case on Jan. 11, 2021, which leaves the baby on life support.2 “Technically, the case goes back to district court for a trial on the merits,” Pope notes.
But since the appellate court already provided an exhaustive analysis, it seems unlikely the district court will reach a different result. This means the hospital must continue life support during litigation before the district court, which could be many months. “Even if the district court rules for the hospital, the family will appeal and probably win since they already won before the same court of appeals,” Pope explains. “Of course, a baby this catastrophically ill may die before all this litigation is complete.”
The Texas case carries broader implications for ethics committees nationwide. “Hospitals may need to afford more procedural due process when deciding on whether to withhold or withdraw life-sustaining treatment without consent,” Pope observes.
Courts in other states might rule similarly. “Therefore, ethicists and ethics committees should assess the fairness of their nonbeneficial treatment policies,” says Pope, adding hospitals should look to model guidelines provided by multiple critical care societies, which recommend multidisciplinary review.3
Many hospitals’ nonbeneficial treatment policies were informed by the Texas law. For example, some policies offer only 48-hour notice of the committee meeting to determine appropriateness. That period may be too short for the family to adequately prepare and meaningfully participate. “Hospitals should look at how much notice other state agencies or private organizations give individuals before depriving them of life, liberty, or property,” Pope offers.
Clinicians might not completely understand their legal obligations in these cases, says Carl Coleman, JD, a professor of health law at Seton Hall University. Some clinicians believe that, from a liability perspective, it is always riskier to withhold or withdraw life-sustaining treatment than to continue providing it, on the theory that physicians would never be held liable for keeping a patient alive. “But courts have been increasingly willing to impose damages when providers prolong the process of dying in violation of a patient’s advance directive or the instructions of a legally authorized surrogate,” Coleman notes.4,5
Ethicists can help educate clinicians about these issues by paying close attention to legal developments and supplying clinicians with examples of relevant court decisions. “Ethicists can also organize training programs featuring lawyers knowledgeable about legal issues in medical care,” Coleman suggests. This might include hospital attorneys, law professors, or healthcare compliance or risk management professionals.
Serious disagreements about withdrawal of care are inevitable. “Cases of perceived inappropriate care seem to be on the rise,” reports Joelle Robertson-Preidler, PhD, a clinical ethics fellow at Baylor College of Medicine’s Center for Medical Ethics and Health Policy. Clinicians in those cases feel conflicted about their obligations to nonmaleficence and autonomy. “In such cases, ethicists can foster communication on both sides of the disagreement by reorienting discussions around what the patient would want for him or herself,” Robertson-Preidler says.
A typical situation is a patient with a poor prognosis who is unlikely to live without life-sustaining technologies. Nevertheless, the family wants “everything” done. “The healthcare team often thinks in terms of medical indications and best interest standards for decision-making, while the family often thinks in terms of important patient and family values,” Robertson-Preidler explains.
Ethicists’ job is to bridge these gaps and redirect conversations around the patient’s best interest. “That is where I believe ethics committees can be most helpful,” Robertson-Preidler offers.
It is not always clear to clinicians what their legal obligations are in inappropriate care cases. “There are often many ways to resolve a particular issue ethically, but these alternatives may be narrowed by state law, and further by hospital policies,” says Olivia Schuman, PhD, a clinical ethics fellow at Baylor College of Medicine and a clinical ethicist at Houston Methodist Hospital.
As liaisons between the family, the clinical team, and hospital administration, ethicists can clarify what a particular hospital is willing to support. For example, some hospitals might prefer to perform a time-limited trial of a treatment before involving an ethics committee. “Likewise, they can help hospital administration understand what kinds of ethical issues clinicians are facing that require additional hospital policy guidance,” Schuman says.
Depending on state laws, an ethics committee could be in a situation to approve removal of life-sustaining treatment over the objections of family members. “But nobody wants that kind of resolution,” Schuman adds. “It is better to prevent such a situation from happening in the first place with good communication.”
- Tinslee Lewis v. Cook Children’s Medical Center, 607 S.W.3d 9 (Tex. App. 2020).
- Cook Children’s Medical Center v. Tinslee Lewis, No. 20-651 (U.S. Supreme Court 2021).
- Bosslet GT, Pope TM, Rubenfeld GD, et al. An official ATS/AACN/ACCP/ESICM/SCCM policy statement: Responding to requests for potentially inappropriate treatments in intensive care units. Am J Respir Crit Care Med 2015;191:1318-1330.
- Doctors Hospital of Augusta v. Alicea, 2016 Ga. LEXIS 448 (Georgia Supreme Court 2016).
- Plank T. Jury awards $400K to estate of Helena man resuscitated against his will. The Missoulian. Updated May 27, 2019.