T.L. v. Cook Children's Med. Ctr.

Citation607 S.W.3d 9
Decision Date24 July 2020
Docket NumberNo. 02-20-00002-CV,02-20-00002-CV
Parties T.L., a Minor, and Mother, T.L., on her behalf, Appellants v. COOK CHILDREN'S MEDICAL CENTER, Appellee
CourtCourt of Appeals of Texas

Opinion by Justice Birdwell

I. Introduction

In 1975, the State Bar of Texas and the Baylor Law Review published a series of articles addressing the advisability of enacting legislation that would permit physicians to engage in "passive euthanasia"1 to assist terminally ill patients to their medically inevitable deaths.2 One of the articles, authored by an accomplished Austin pediatrician, significantly informed the reasoning of the Supreme Court of New Jersey in the seminal decision In re Quinlan , wherein that court recognized for the first time in this country a terminally ill patient's constitutional liberty interest to voluntarily, through a surrogate decision maker, refuse life-sustaining treatment. 70 N.J. 10, 355 A.2d 647, 662–64, 668–69 (1976) (quoting Karen Teel, M.D., The Physician's Dilemma: A Doctor's View: What the Law Should Be , 27 Baylor L. Rev. 6, 8–9 (Winter 1975)). After Quinlan , the advisability and acceptability of such voluntary passive euthanasia were "proposed, debated, and [ultimately] accepted in American law[ ] and medical ethics"3 with an important exception being passive euthanasia of infants with disabilities. Edward R. Grant & Cathleen A. Cleaver, A Line Less Reasonable: Cruzan and the Looming Debate Over Active Euthanasia , 2 Md. J. Contemp. Legal Issues 99, 100–01 & n.5, 222–23 & nn.547–56 (Summer 1991). Fast-forward over four decades from Quinlan , and this court confronts, as a question of first impression, the issue of whether the committee review process outlined in Section 166.046 of the Texas Advanced Directives Act (TADA), see Tex. Health & Safety Code Ann. §§ 166.001 –.209, when invoked by the attending physician for a terminally ill infant, provides sufficient procedural due process to authorize involuntary passive euthanasia—allowing the physician to unilaterally withdraw life-sustaining treatment from the ailing child over her mother's objection—and thereby to cause her natural death.4

We hold that, as applied in this instance, Mother pleaded—and introduced evidence supporting a viable claim—that the Section 166.046 committee review process did not provide her sufficient procedural due process, such that she was entitled to temporary injunctive relief.

Specifically, appellants here—T.L., the infant patient, and her mother, T.L., on her behalf (individually, T.L. and Mother)—appeal from the denial of a temporary injunction sought to enjoin, under 42 U.S.C.A. § 1983, the unilateral discontinuation of the ailing child's ongoing course of life-sustaining treatment at Appellee Cook Children's Medical Center (CCMC). CCMC had affirmed this treatment decision of T.L.’s attending physician after he had invoked the committee review process set forth in Section 166.046, a key component of the TADA. In so doing, CCMC had authorized the attending physician to discontinue T.L.’s life-sustaining treatment and thereby cause her natural death if, at the end of ten days, no other physician or health care facility could be found to continue the treatment.

Because Section 166.046 delegates through this process two traditional and exclusive public functions—(1) the sovereign authority of the state, under the doctrine of parens patriae , to supervene the fundamental right of a parent to make a medical treatment decision for her child and (2) the sovereign authority of the state, under its police power, to regulate what is and is not a lawful means or process of dying—the decision rendered thereby constitutes "state action" within the meaning of the Fourteenth Amendment of the United States Constitution and 42 U.S.C.A. § 1983. As a state actor, then, CCMC had to comply with the procedural and substantive dictates of due process before affirming and thereby effectuating such a treatment decision. Because Mother (1) pleaded—and showed a probable right to recover under a viable cause of action—that the committee review process set forth in Section 166.046 and followed by CCMC fails to comply with the dictates of procedural due process, at least as applied in these circumstances, and (2) established that the failure to maintain the status quo ante would result in immediate irreparable harm, the trial court erred by denying Mother temporary injunctive relief, and we reverse the trial court's order denying it.

II. The Section 166.046 Procedure

Because it is undisputed that Section 166.046's committee review process applies to this dispute and is integral to understanding the factual background of the case, we preface our discussion of the facts with a summary of the process.

The TADA defines "[l]ife-sustaining treatment" as

treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.

Tex. Health & Safety Code Ann. § 166.002(10). Section 166.046 of the TADA provides a set of procedures by which an attending physician5 may obtain immunity from civil liability and criminal prosecution for a decision to unilaterally discontinue life-sustaining treatment against the wishes of a patient suffering from a terminal or irreversible condition6 or against the wishes of the person responsible for the patient's health care decisions. Id. §§ 166.045(d)–.046.7

The centerpiece of those procedures is a review of the attending physician's decision by a health care facility's ethics or medical committee8 in a meeting that the patient or patient's representative is entitled to attend upon notice given no less than forty-eight hours beforehand:

(a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.
(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
(1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility;
(2) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;
(3) at the time of being so informed, shall be provided:
(A) a copy of the appropriate statement set forth in Section 166.052 [explaining state law, the patient's rights, and the resources available to the patient when the attending physician refuses to honor the patient's decision to continue or discontinue life-sustaining treatment]; and
(B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the department under Section 166.053; and
(4) is entitled to:
(A) attend the meeting;
(B) receive a written explanation of the decision reached during the review process;
(C) receive a copy of the portion of the patient's medical record related to the treatment received by the patient in the facility for the lesser of:
(i) the period of the patient's current admission to the facility; or
(ii) the preceding 30 calendar days; and (D) receive a copy of all of the patient's reasonably available diagnostic results and reports related to the medical record provided under Paragraph (C).

Id. § 166.046(a)(b).

If, after following the prescribed procedures, the committee "affirm[s]" the attending physician's decision to discontinue "medically inappropriate" life-sustaining treatment, "[t]he attending physician, any other physician responsible for the care of the patient, and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after both the written decision and the patient's medical record" are provided to the patient. Id. § 166.046(e). A physician may not, however, withhold or withdraw "pain management medication, medical procedures necessary to provide comfort, or any other health care provided to alleviate a patient's pain" unless such care would be "medically contraindicated" or "contrary to the patient's or surrogate's clearly documented desire not to receive artificially administered nutrition or hydration." Id. The physician must also make a reasonable effort to transfer the patient to another physician who is willing to comply with the treatment decision refused by the attending physician, whether within "an alternative care setting" of the health care facility itself or another facility. Id. § 166.046(d). The ten-day time period for effectuating the attending physician's refusal may be extended by a district or county court only upon a finding, "by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted." Id. § 166.046(g). Section 166.046 does not otherwise authorize judicial review of either the attending physician's refusal or the written decision of the committee affirming it. See id.

We now turn to the specific facts of this case, in which the ...

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