'Death panels' exist already

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By Robert W. Painter

Former Alaska Gov. Sarah Palin, who says President Obama's heath care reform would result in "death panels," needs to look no further than Texas to see a slippery slope like the one she envisions.

In Texas, a legislative provision that many thought was an innocuous proposal to help people has been twisted to snatch end-of-life decisions out of the hands of families.

The provision to which Mrs. Palin refers, Section 1233 of America's Affordable Health Choices Act of 2009, would allow Medicare to pay doctors to counsel or steer end-of-life decisions for a patient every five years or more often "if there is a significant change in the health condition of the individual" or an admission to a nursing home or long-term care facility. Both the White House and some members of Congress dispute Mrs. Palin's contention about how this language would play out, but based on what has happened in Texas, Americans should heed her warning.

One of the drawbacks of trying to overhaul an industry as large and sweeping as health care on the short schedule demanded by the president is that there is not time to study how the legislation would work in the context of existing state law.

The truth is, for many states, Mrs. Palin's assessment likely is dead-on, except the "death panels" would be hospital-run, not government-run. Consider Texas. The Texas Advance Directives Act of 1999 became law with support from a broad ideological spectrum, but one of its unintended consequences has been astounding. When a patient or family wants health care to continue but the attending physician does not, the Texas law allows a hospital committee to have the final say under the amorphous concept of "medical futility."

Texas law only requires the hospital to provide the patient and family with 48 hours' notice before a hospital "ethics" committee meets and makes a decision on terminating life support. There are few due-process safeguards in the law to protect patients during this committee proceeding.

Once the hospital ethics committee decides that further care is medically futile, the family is given just 10 days to find a facility that will accept the patient, or the hospital and doctors can end curative care with impunity. Virginia law is similar but gives the family 14 days.

Furthermore, if the statute is followed, the hospital and others involved are cloaked with complete criminal, civil and licensing immunity. In other words, even if the hospital's decision to pull life support was incorrect, it is immune from lawsuit or prosecution. All this sounds quite like a "death panel" to me. Under Texas law, the hospitals are not just allowed to try to persuade a family to "pull the plug" but are allowed to take the action themselves and end all curative care if the family disagrees.

When patients and their families are battling a serious illness, they are in a vulnerable frame of mind. Some physicians and hospitals will try to step in during this emotional time and impose their will even when it goes against the patient's and family's decision and belief system. I have seen numerous Texas cases in which health care providers have tried to split families in an attempt to find someone to support the hospital's desire to end care. In the end, though, under Texas law, the hospital can go against the family's wishes if the family will not agree to end the life of their loved one.

The Texas experience should not be ignored in the face of proposed legislation that would nationalize a policy that further goes against individual rights. The proposal is to pay doctors to counsel patients on end-of-life decisions. In practice, those consultations likely would take place frequently, considering that it is left to the doctor to determine what a "significant change in the health condition" is. Further, imagine how worn out senior citizens might feel by the repetitive discussion each time they move between a nursing home, long-term care facility or hospital.

The end-of-life provisions of the Obama health care plan would upset the balance of power in health care decision-making in favor of doctors and hospitals and against individuals and families. The federal legislation provides an economic incentive for doctors and hospital administrators to use Medicare funds to start hastening certain patient deaths a bit sooner under existing state laws. In Texas, that balance already is tipped in favor of the health care providers, and the proposed federal legislation would only make matters worse by placing more Medicare dollars on that side of the scale.

Sen. Charles E. Grassley, Iowa Republican, is rightly concerned that the end-of-life provisions in the proposed federal law could be "misinterpreted and implemented incorrectly." Federal lawmakers interested in protecting individual and patient rights need to study carefully the end-of-life provisions with the understanding that the law will be implemented in health care settings governed under 50 different sets of state law.

Admittedly, the warning of "death panels" is a shocking claim. But when I inform people of the effect of the Texas law and how it has trampled on individual rights, they are understandably shocked. If the Texas Advance Directives Act has shown us anything, it is that governments should leave end-of-life decisions to patients and their families.

Robert W. Painter, an attorney at Painter Law Firm PLLC, handles medical malpractice and other litigation matters and has testified on the Advance Directives Act in the Texas Legislature.