Pulling The Plug In Texas

In the wake of the Terri Schiavo story, liberal bloggers have noticed that there are other cases in which patients who are terminally ill or in a persistent vegetative state have life support, respirators, or feeding discontinued because they can't pay for it, and moreover that George W. Bush signed the law that allows this in Texas. I do not know the facts in these individual cases nearly well enough to comment on them (making my way through the Schiavo legal record was enough for one weekend.) But these stories seem to me to raise two distinct sets of issues.

(1) Is supporting laws that allow doctors to terminate treatment determined to be futile, even when those patients and/or their parents want to continue treatment, while also insisting that Terri Schiavo's feeding tube should not be removed, at best inconsistent and at worst hypocritical? Here I think the answer is clearly: yes. The case for removing Terri Schiavo's feeding tube is, as I said in my last post, based on the court's determination that she would not have wanted it. That is, it's based on patient autonomy. In the Texas cases I linked to above, however, the reason is that doctors have determined further treatment to be futile, and the patients' families, who want treatment continued, can't pay for it. Autonomy is by far the stronger argument, I think.

(2) But what about the underlying issues? I don't actually have time to write a long post about them, but luckily there's one at Lean Left, which I very much recommend. It lays out the history and the issues quite clearly.

As I said, I do not know the facts of these particular cases, so I do not want to comment on them specifically. But while I'm sure there are horror stories out there (there always are), the main sorts of cases in which I've heard of hospitals seeking to discontinue treatment are (a) cases in which the patient is certain to die fairly soon, does not have, and has never had, a view of his or her own about whether to be treated (e.g., because s/he is an infant) and is suffering seriously, so that the question is whether to artificially prolong someone's life for a few more weeks of torment when that person has never had or expressed a view about whether this should be done, and (b) cases in which the patient is in a persistent vegetative state from which, absent a miracle, s/he will never recover. In both sets of cases there are serious issues in play that aren't captured by saying: when the hospitals realized the patients couldn't pay for treatment, they pulled the plug.

Comments

[NeoDude]

One of the principles, of certain right-wing ideologies, is wealth determines who deserves life.

[Jonas Cord]

The case for removing Terri Schiavo's feeding tube is, as I said in my last post, based on the court's determination that she would not have wanted it. That is, it's based on patient autonomy.

Am I the only one who would rather that matters of patient autonomy required explicit living wills, and in absence of such documentation of patient preference, doctors play it safe with "do no harm?"

I ask this as someone who is dumbfounded by the "Terri is no different than you or me" arguments by the religious right, and yet isn't comfortable with a patient's autononmous "decisions" being solely determined by court ruling.

[liberal japonicus]

Am I the only one who would rather that matters of patient autonomy required explicit living wills, and in absence of such documentation of patient preference, doctors play it safe with "do no harm?"

I suspect that this arises from the fact that the courts have long been required to determine the intention of people who have died in the case of bequests, wills and the like. Thus, there is a framework for doing this and it is difficult (as a fact of human nature) to imagine that the process would be suspended when it could be viewed from some perspectives as precisely the same thing.

[Jay C.]

Thanks, hilzoy, for the link to LeanLeft, Kevin's post is a must-read for a realistic take on the current brouhaha over end-of-life medical issues.
One thing, though, which I think has been absent (particularly in the blogosphere) over the whole Terri Schiavo circus, is any real examination of precisely why her case has become some sort of huge media-driven cause celebre, when, as is obvious, end-of-life medical decisions are a sad, but routine occurence at hospitals, hospices, and with families all across the country all the time. The overwhelming majority of which, it is safe to say, take place without any publicity of any kind.
Terri Schiavo's dire "case" did not suddenly pop up out of nowhere in the past few months; it has been in litigation for years - but, it seems, only became a newsworthy item (?two years back) after the Schindler family recruited (or were recruited by) a well-financed, national "advocacy/activist" group/cabal in order to exploit Terri's case for what can best be described as political purposes - albeit "political" in this instance, being wrapped in the mantle of "pro-life" religiosity, and the whole affair painted as a stark Good-vs-Evil Morality Play - cheered on by large numbers of folks who (to judge from their blogposts) have no clear idea whatsoever of the facts in the case.

[Roxanne]

I think this case has import for the Religious Right that goes far beyond medical ethics. Isn't "viability" central to the Roe vs. Wade case?

[hilzoy]

Roxanne: viability and the irrelevance of having no brain activity.

[Slartibartfast]

One of the principles, of certain right-wing ideologies, is wealth determines who deserves life.

Is that irrelevant, or do you have some specific things to say about some specific people?

[NeoDude]

Slartibartfast,

I suspect that the parent's relationship to certain wealthy right-wing elites, have made Mrs. Schiavo's life appear "valuable."

[sidereal]

Specific people like. . Alan Greenspan?

Atlas Shrugged is a celebration of life and happiness. Justice is unrelenting. Creative individuals and undeviating purpose and rationality achieve joy and fulfillment. Parasites who persistently avoid either purpose or reason perish as they should.

Of course we all had our naive Randophilic phase in high school when it all made so much sense. I'm just weirded out that Alan never grew out of his.

Are we derailed now?

[Slartibartfast]

I suspect that the parent's relationship to certain wealthy right-wing elites, have made Mrs. Schiavo's life appear "valuable."

Which ones, again? Is it really this difficult to be specific?

Of course we all had our naive Randophilic phase in high school

Mine extended past college graduation by a year or two, but as I've noted elsewhere, I am and have been a "buttock".

[John Thullen]

Slart: despite your daughter's not fully formed but funny opinions, you are not a "buttock".

[NeoDude]

I was thinking more along the lines of Prosperity Gospel and The Word-Faith Movements.

Many of the evangelical churches, in Los Angeles, who subscribe to those theological bents are also obssessed with saving Shiavo from the "Liberal Scientific Community."

I don't think it is an accident; the rise of Prosperity based theologies and Christian based medical cures a.k.a. Christian Quacks.

They are excellent ways to test someone's faith and capital.

[Platypus]

Come the next election, I expect we'll be hearing the term "Ghoulish Old Party" in reference to this fiasco.

[Cindra]

This whole thing leaves a bad taste. I am very much in favor of preserving life where there is reason, but I have seen too many situations where lives were "saved" so that a family could be destroyed emotionally, physically and economically caring for a loved one that had long ago passed, but was being "kept alive."
My father had Huntington's Disease and his greatest fear was the feeding tube. He was weeks away from it at 87 pounds on a 6 foot frame when he mercifully passed away in his sleep. My mother was subjected to a nastyl attack by a doctor at the hospital for not trying to "save him." Even though there was a legal DNR on file, he felt it his responsibility to verbally assault this grieving woman and make her feel guilty for fullfilling my father's wishes. I feel sympathy for all of Terri's family and wish as peaceful an outcome as possible. The litigation has to be very exhausting for everyone involved.

[NeoDude]

I wonder what type of faith-based cures are being promised to Mrs. Shaivo's parents?

'We were suckered in,' widow says of doctor

And if the person dies, it is easily blamed on lack of faith, or the Secular/Liberal Medicical Communities' murderous bent.

[Dantheman]

"I expect we'll be hearing the term "Ghoulish Old Party" in reference to this fiasco."

I expect we will never hear of this outside of left-leaning blogs. The SCLM never bring to the fore derogatory terms to describe policians of either stripe, but are only willing to do this once it reaches the pseudo-mainstream partisan press. Since the Republican media is willing to join in hyping anti-Democratic meaningless insults like this (including Bird Dog's favorite "John Kerry looks French"), while there is no one willing to do so to Republicans, I strongly doubt a line like this will ever be seen in your local daily.

[Dantheman]

My comment put into greater vitriol by the Sideshow

[Dantheman]

try again with a proper link

[NeoDude]

With the rise of pro-choice Republicans, there is a need to appease "The Base"

Gov. Arnold's chances of dominating a traditionaly anti-choice position, CA Republican Governor, really is weakening the "Culture of Life and War" Party.

[lily]

I hope the exploitation of Terri Schiavo will blow up in the faces of her exploiters. I really doubt if this will increase the credibility of either Congress or the Republicans in the House. Most people don't see the end-of-life medical treatments in simple terms. They understand the complexities and moral ambiguites.

[freelunch]

Poetic justice would require that the most loud-mouthed louts who want to keep Terri alive will end up on feeding tubes with no ability to stop it, preferrably with Congress turning their very slow deaths into the circus they chose to turn Terri's into. If they are suffering extreme pain and they don't get adequate pain killers because their 'war on drugs' has made hospitals fearful of providing adequate pain management, so much the better.

[iskander]

Is freelunch really volokh ?

[Dantheman]

Iskander,

I'm sure it's a pseudonym. After all, there's no such thing as a free lunch...

[Donald Johnson]

I'm not sure why--triumph of hope over experience and all that--but I was expecting to see the NYT lay out the medical evidence in the Schiavo case so people wouldn't have to rely on the competing ideologues for their info. Well, they didn't. Nothing in there that I saw about the cerebral cortex being turned into a liquid mush. But they did mention the video that seems to show Terri responding to her mother's visit and since I don't watch much TV news (and haven't followed the case much) this was news to me.

So what does this video show and is the alleged behavior consistent with the claim that Terri's brain is lacking a cerebral cortex and therefore her soul (to use the religious term) no longer exists in our material world? Could you have the sort of behavior they claim through simple reflex action? I was all set to say that the lefty bloggers were completely in the right on this issue and that the Republican politicians are all acting like scumbags (my default position on most issues, since it's generally true), but this claim about the video shook me out of my complacency. Should it have?

[moe99]

The 'video' has been discussed in the GAL's report and elsewhere in the record. It is 4 ours of which 4 minutes or less show some sort of reflex made by Ms. Schiavo that cannot be concluded to be anything other than random reflexes. The Schindlers and their backers have selectively edited out this 1% of film and present it as if it were 100%.

The Judge and the GAL both reviewed the entire 4 hour video as did at least some of the appellate courts that upheld the Judge's rulings. Read the dox at the miami.edu site on the Schiavo case. It will help.

[bob mcmanus]

"Creative individuals and undeviating purpose and rationality achieve joy and fulfillment. Parasites who persistently avoid either purpose or reason perish as they should." ...Rand

Randian Ethics

Will Wilkinson of the Cato Institute refutes Randian Ethics, as if my own survival into my fifties wasn't adequate refutation already.

[Katherine]

Absolutely not. It is four minutes of selectively edited video. The Florida courts reviewed it and concluded that it did not show what her parents believed it showed:

The key to the 4 minutes and 20 seconds of video is that Schiavo seems to be responding in a meaningful way to specific stimuli. All 17 experts who reference the videos take for granted that they demonstrate meaningful emotional or communicative responses. Could they really all be wrong?

Oh, yes. All you need to know to illuminate the question is that the six snippets of video were selected from 4 1/2 hours of tape. As do most people with PVS, Schiavo emits random behaviors and noises. If a person gives enough commands or makes enough interaction attempts over the course of several hours, by sheer coincidence some of Schiavo's random behaviors will appear to coincide with their commands. Both the trial court and the appeals court viewed the entire 4 1/2 hour tape, and both concluded that her responses were indeed random. As the original court decision pointed out:

Dr. Hammesfahr testified that he felt that he was able to get Terry Schiavo to reproduce repeatedly to his commands. However, by the court's count, he gave 105 commands to Terry Schiavo and, at his direction, Mrs. Schindler gave an additional 6 commands. Again, by the court's count, he asked her 61 questions and Mrs. Schindler, at his direction, asked her an additional 11 questions. The court saw few actions that could be considered responsive to either those commands or those questions. The videographer focused on her hands when Dr. Hammesfahr was asking her to squeeze. While Dr. Hammesfahr testified that she squeezed his finger on command, the video would not appear to support that and his reaction on the video likewise would not appear to support that testimony.

Hammesfahr's own report makes clear that he relied on a ludicrously low standard to conclude that Schiavo's responses were purposeful:

Interestingly, some of the commands, such as close your eyes, open your eyes, etc. she tended to do several minutes after I gave her the command to do so. She had a delay in her processing of the action. However, when praised for the action, she would then continue to do the action repetitively for up to approximately 5 minutes. As we had moved on to other areas of the exam, at times she was continuing to do the previous command, then at inappropriate times since the focus of the exam had changed.

He commanded her to emit some of her known behaviors, such as closing or opening her eyes. If she did, that was a "hit" - a sign that she had obeyed the command. If she did so several minutes later, that was still a "hit," apparently no matter what else he'd asked her to do in the interim. If she continued , long after he'd moved on, that was not a sign that she was unresponsive to his subsequent commands but, instead, a sign that she was responsive to praise. Almost any response, correct or incorrect, could apparently be interpreted to signal consciousness. Hammesfahr, like Schiavo's parents, wanted to be convinced.

Anyone who takes Tom DeLay's and Bill Frist's word over the word of every single judge who has reviewed the case, the guardian ad litem, and the independent doctor appointed by the court, is so credulous that they have no business expressing an opinion on other people's medical condition. No one who has not fully reviewed the court decisions should call them into question. This goes 1000x for members of Congress, and 100000x for the doctors in Congress "diagnosing" Ms. Schiavo from the floor of the House and Senate, but it goes for everyone. Please cut it out.

It is a gross abuse of power for Congress to try to overturn a court decision because it thinks the court got the facts wrong. But in this case, it's much worse than that: most of them simply do not seem to have read the court decisions they are overturning.

[Katherine]

here's the post I was quoting.

[Gromit]

Of course we all had our naive Randophilic phase in high school when it all made so much sense.

Heh, not all of us. At 16, I thought "Anthem" was a complete crock, sorting humankind into "leaders" and "followers" in a distinctly anti-democratic way, and I have eschewed Rand ever since.

[Bernard Yomtov]

Of course we all had our naive Randophilic phase in high school when it all made so much sense.

Not me either, though my conclusion was not so carefully arrived at as Gromit's. I had some friends who were quite taken with Atlas Shrugged, and got sort of a fanatical attitude about it. That was enough to get me to view the whole thing with great skepticism.

Turns out I was right.

[rilkefan]

Kleiman thinking like iskander.

[Donald Johnson]

Thanks for the responses about Terri--that was very helpful. It crosses my mind that the average person shouldn't be expected to be intimately familiar with the details of a court case in order to have an opinion about it--what we have the right to expect is that if politicians are going to twist the facts, the mainstream press will set them straight. The press should present a summary of the relevant facts, and in this case that summary would let the reader know that this video doesn't demonstrate what it is purported to demonstrate.

Of course having the right to expect something and actually expecting it are two different things.

[Katherine]

"crosses my mind that the average person shouldn't be expected to be intimately familiar with the details of a court case in order to have an opinion about it--what we have the right to expect is that if politicians are going to twist the facts, the mainstream press will set them straight."

We know that the mainstream press will not set them straight. If we're talking about a Con Law case it's one thing. This totally different. It is very close to a custody battle. If people were going to be talking about & voting on whether a judge got a divorce case right, I think it would be reasonable to expect them to read the court decision or keep their mouths shut.

[Melissa]

The political reporter on sky news uk said that despite all the talk about abortion and gay marriage during the election Bush and republicans hadn't delivered anything concrete to their base so they probably jumped on this issue as a way of pleasing their supporters at no cost. I guess they never really wanted to tackle the hard issues and just used them to energise their support base, now they're just throwing them scraps, it's just unfortunate for the family being used this way.

[Donald Johnson]

Katherine, I'm not sure what we're arguing about at this stage. But what the heck--pointless arguments are why God invented bandwidth. I don't think people need to be intimately familiar with every detail of an issue (whether it is a divorce, if for some reason one had national importance, or an issue in constitutional law, or WMD's in Iraq) to have the right to an opinion on it. They need to be given a fair-minded summary of the relevant facts and that's what the press is supposed to do. That's what Moe99 and you did in response to my question. Now unless I suspect you are making it all up (and I don't), then there's no particular reason for me to go through and read every word written by every judge and expert on the case. If I were voting on it, sure, I'd be obligated to do that. But I'm not a juror or judge whose decision is going to decide Terri's fate and for that I'm very grateful. What I intend to do with what little I know is discuss it with friends (including Christian conservatives), and now I can tell them the video evidence doesn't in fact prove what people have said it proves and that people who should know better are misleading the public. It shows once again that the Republicans are twisting the facts and that the press is letting them get away with it. If I had endless amounts of time, maybe I'd read the court decision, but since I'm not voting on what happens to her, I won't. Given that infinite amount of time and some extra IQ points, I'd rather become an expert in famine relief, human rights law, the manufacture and detection of WMD's, constitutional law and a whole host of other issues of great importance. Sadly, the nation lets me vote in my current state of ignorance for people who make decisions on all these things.

[Donald Johnson]

Good, I get to apologize before you see the previous post. Sorry, Katherine, for the snarky tone of what I wrote above. I was annoyed, but thought I'd removed the snarkiness before hitting the post button. As is often the case, there was a ten minute delay after I'd posted before I realized I hadn't succeeded.

I also disagree with my theological speculation--I doubt God has anything to do with the stupidity of pointless internet arguments.

[Katherine]

Don't worry about it. That was pretty non-snarky.

[Chip]

I freely admit to being pretty ignorant about the day-to-day effects of the consitution on how our government works. Which leads me to ask...

Doesn't the separation of powers prevent this kind of thing from happening? Doesn't the weekend's happenings indicate that anytime the ruling powers in the legislative and/or executive decide that they don't like a court decision that they can intervene to (potentially) change the outcome to their liking (this seems kind of akin to when I say "no" to one of my kids about something and they go ask my wife hoping for a more favorable response). Ultimately, doesn't this pretty much thoroughly castrate the judiciary?

[bob mcmanus]

"Doesn't the separation of powers prevent this kind of thing from happening?"

Bob's Law of Law:There is no law. Or the binding force of law on political actors always lies outside the structure of law. Umm. Political actors use law to gain legitimacy for their actions, but are not actually restrained by law in any real sense, the only real restraints are political. Ummm. Babble,babble.

But there is a very important real point here. See John Bolton and international institutions. See rendition, torture, etc. See the fact that the Senate passed the Terry Schiavo Bill last night with three Senators granting "unanimous consent"(The Constitution demands a quorum).

Congress, SCOTUS, the President can do anything they darn well like and can get away with. The "law" does not restrain them or protect us.

[Katherine]

They have not yet proved willing to openly defy a final court order. When they do, I get really scared. But it has not happened yet.

[dmbeaster]

It is a gross abuse of power for Congress to try to overturn a court decision because it thinks the court got the facts wrong. But in this case, it's much worse than that: most of them simply do not seem to have read the court decisions they are overturning.

It's worse than that -- most of them seem more than willing to make up total baloney (i.e., lie) because its politically expedient. This is not willful ignorance but blatant lying.

"She talks and she laughs and she expresses likes and discomforts," he said Sunday evening. "It won't take a miracle to help Terri Schiavo. It will only take the medical care and therapy that patients require."

Just Tom DeLay lying again.

A bit of humor as an antidote -- Barney Frank during the debate:

"We're not doctors. We just play them on C-SPAN."

[Lewis Carroll]

"I ask this as someone who is dumbfounded by the "Terri is no different than you or me" arguments by the religious right, and yet isn't comfortable with a patient's autononmous "decisions" being solely determined by court ruling."

Jonas,

I would share your discomfort if in fact the court was being called upon to make a *moral* decision. But really it's being called upon to make a determination of fact as best it can: specifically, to ascertain the patient's wishes absent direct testimony by him or her. So to that extent, they're weighing the supposed knowledge of the patient's wishes by each testifying party (parents, husband, siblings etc.), and their accuracy in perceiving her wishes.

There's also the question of "standing", which I think is determined under state law, and which determines who, in the absence of explicit and legally executed directives, has the power to make medical decisions for the patient.

Frankly, I'm not totally informed as to Florida law in these respects, so I can't make an intelligent comment about how the law applies here, but I do think that one must presume that the Florida courts are applying the state's own law correctly; I guess that's what appeals are all about.

Katherine,

Dr. Hammesfahr's testimony seems to reek of confirmation bias.

[Frank]

Since no one else has raised this I must: Doesn't the Texas Futile Care law give hospitals a strong financial incentive to find that patients who will never be able to pay, will also never recover?

Does anyone have information about how the bill proposes to prevent hospitals from seeking to protect their financial interests?

[Jonas Cord]

Lewis,

But really it's being called upon to make a determination of fact as best it can: specifically, to ascertain the patient's wishes absent direct testimony by him or her.

And that's my point - I think its a horrible idea to have the courts ascertain anyone's wishes absent direct testimony, especially in matters of life or death. Many have mentioned the courts are merely following Florida law, so be it. But about the only constructive thing that could come out of all of this is that we can all ask whether the laws are properly formulated for the protection of those involved. Looking at this case, I'd say no.

And as usual, the "debate" that has risen up between partisans and special interest groups would do nothing to address the concerns I raised. The religious right would likely prohibit the cessation of life support under any circumstances; the other side seems quite content with the way things are. It's a shame.

[Lewis Carroll]

Jonas,

I understand and share your sentiments that "having the courts ascertain anyone's wishes...absent direct testimony" is a "horrible idea". But I guess that I would add, channelling Churchill: ",except for all the others".

You see, my wife and I feel so strongly that the best idea is to plan ahead for these things that we both have legally executed wills, living wills, healthcare proxies and durable powers of attorney.

However, recognizing that there are those people, like Terry Schiavo, who don't have these things, I suppose that a court of law is the logical next place to turn, given that (in theory) a court of law is supposed to be a dispassionate determiner of facts. And since we're dealing with liability on the part of health care providers and hospitals, I also don't see from where else effective authority can be brought to bear to actually honor the direction of whoever's word is ultimately taken regarding the patient's wishes.

Other choices, given the inter-family conflict we have here, would seem to be: a panel of health care professionals, a renowned panel of medical ethicists, the patient's pastor/rabbi/imam/priest, a prestigious philosophy department, and any others you or I might care to suggest.

Do any of those seem superior to court? How do you feel about the role of surrogate judges in placing orphaned children whose parents died without wills?