Brownwood: Texas Law and Terri Schiavo

Mon, Mar. 21, 2005
Attorneys question whether Texas, federal law at odds
KELLEY SHANNON
Associated Press
AUSTIN - The federal law President Bush signed to prolong Terri Schiavo's life in Florida appears to conflict with a Texas law he signed as governor, attorneys familiar with the legislation said Monday.
The 1999 Advance Directives Act in Texas allows for a patient's surrogate to make end-of-life decisions and spells out how to proceed if a hospital or other health provider disagrees with a decision to maintain or halt life-sustaining treatment.
If a doctor refuses to honor a decision, the case goes before a medical committee. If the committee agrees with the doctor, the guardian or surrogate has 10 days to seek treatment elsewhere.
Thomas Mayo, an associate law professor at Southern Methodist University who helped draft the Texas law, said that if the Schiavo case had happened in Texas, her husband would have been her surrogate decision-maker. Because both he and her doctors were in agreement, life support would have been discontinued.
The Texas law does not include a provision for dealing with conflicts among family members who disagree with the surrogate decision-maker - as has happened in the Schiavo case - although in practice hospital ethics committees would try to resolve such disputes, he said.
The Texas law tends to keep such cases out of court, allowing life-support decisions to be made privately, Mayo said. However, within the last month two Houston cases went to court; one resulted in a baby being removed from life support, while the other led to the transfer of an elderly man to a nursing home.
Five-month-old Sun Hudson died last week, seconds after being removed from a ventilator. His mother, Wanda Hudson, waged an unsuccessful court battle to force Texas Children's Hospital to keep him alive artificially. The baby boy suffered from a rare and incurable genetic disorder that prevented his lungs from growing and had been on a ventilator since birth.

Janette Nikolouzos won temporary restraining orders against St. Luke's Hospital to prevent the hospital from removing her husband from life support. Spiro Nikolouzos, 68, has been in a persistent vegetative state since 2001. On Sunday, he was transferred to a San Antonio nursing home after a three-week search for a place that would take him.
Bruce Howell, a private health law attorney in Dallas who was involved in 2003 updates to the state law, agreed with Mayo that Bush's signing of the federal law appears to be inconsistent with his actions as governor.
"These are incredibly private decisions," Howell said. "I would hope that this case does not result in federal law overriding what I think was carefully and incredibly well intentionally thought out."
The White House said Monday the law allowing a federal court to intervene in the Schiavo case was narrowly tailored and not intended as a precedent for Congress to step into such battles.
White House press secretary Scott McClellan dismissed the claim, raised by a Florida Democrat on the House floor, that Bush's signature on the Texas law conflicts with his action Monday.
"The legislation he signed is consistent with his views," McClellan said. "This is a complex case, and I don't think such uninformed accusations offer any constructive ways to address this matter."
State Rep. Garnet Coleman, a Houston Democrat and one of the sponsors of the 1999 bill, said the law states that life-sustaining treatment can be withheld for the right purpose, when a person is essentially dead.
"In Florida, the doctor and the guardian are not in disagreement," Coleman said.
End-of-life decisions should not be overseen by the federal government, but the newly signed law by Bush does that, he said.
"This is not a federal issue. These are issues left to the states for particular reasons," Coleman said.
Coleman and others noted that after Bush vetoed a Texas bill in 1997 regarding termination of life support, a diverse coalition including the medical community and the Texas Right to Life Committee agreed on the 1999 bill, which Bush signed.
Elizabeth Graham, director of the Texas Right to Life Committee, said her organization didn't like the 1997 proposed state law because it allowed "involuntary euthanasia."
But the committee compromised in crafting the 1999 law because it provided 10 days, or in some cases longer, to seek an alternative treatment site if a doctor or hospital wanted to terminate life support when the patient's guardian or surrogate did not. Graham said she doesn't think the new federal law conflicts with that. She said it's too early to know whether the federal law will override Texas law.

http://www.dfw.com/mld/dfw/news/state/11194670.htm