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My perspective on SB 303

Rich DeOtte

May 10, 2013

My name is Rich DeOtte.  I live in Southlake, Texas.  As a pro-life person, I do not consider SB 303 a pro-life bill at all.  In fact, it is a “death panel expansion bill”.  I note very many pro-life people and groups believe it is as well.  And I thank you for hearing my concerns.

I own a Civil Engineering firm.  In my work, my office prepares engineering plans for streets, drainage systems, water and sewer systems and we consult on a variety of engineering and planning issues.  We have projects that involve construction of sewer lines across creeks and after we’ve drawn our plans, they can require review and approval by very many outside entities including many individual departments with a city, the United States Army Corps of Engineers, The Federal Emergency Management Agency and the Texas Commission on Environmental Quality to name a few.  There are more.  Our plans include tree protection plans and if a contractor employee shows up to the job site and parks under a tree not slated for removal under my plans, the contractor and/or the employee can be fined.  This can happen on projects to put a small sewer line across a creek.  I cannot review my own plans.  Most people don’t accept that one engineer in my office can review another engineer’s plans and approve them for construction.

Under current law and more so under Senate Bill 303, end of life decisions for humans which I believe are more important than random trees in a construction site, are all made entirely within a hospital facility. The patient can be given some notice and is invited to a meeting but the patient or their surrogate is excluded from even observing deliberations.  They can offer a second opinion to the panel but it has no force whatsoever.

I’m 51 years old and have entered the middle part of life.  It’s not all sunshine and opportunity as it was in younger years.  People die, they get old and lose their memory and I am reflective about what human life is meant to be and how our philosophy shapes what we do. We all should understand that there is a time to die just as there is a time to live.  And sometimes, it is too hard to let go.  We should understand that for every decision, including where to park your car on a construction site can be affected by different opinions and perspectives.  It is not a good ethic, a good way for society to handle end-of-life decision for people by placing the sole decision about how to interpret conditions in the hand of people solely on the money side of the decision.

Most of the medical profession is very respectable.  But I have personally been misdiagnosed by doctors.  I have a daughter whose misdiagnosis was followed by years of conventional and some alternative treatments to correct a mercury exposure. And my father in law was given about three weeks to live after his diagnosis of pancreatic cancer.  At that time, this retired union electrician was a ghost of the man I had known and the doctors had given up.  He did ultimately succumb to the cancer but he tried experimental treatment against the advice of the doctor that had just handed him his death sentence.  He recovered largely, had no pain and went sledding with my kids months later.  He looked healthier than I’d seen him and he said he felt better than he had in decades.  He didn’t just survive for 18 more months. He lived for 18 more months.  Doctors and hospitals do a lot of things just fine.  But they don’t know everything and they do make mistakes.  The New York Times reported in July of last year that there are 200,000 deaths in the United States due to mistakes in hospitals.  They do their best, I’m sure but they aren’t infallible. And any ethical standard we promote, should provide a check and review where possible.

There is nothing in this bill that addresses the fundamental ethical problem with the current law.  Nothing.  The calendar of events are changed.  The patient gets to come to a meeting and they get a little more paper work to do.  I leave it to a political process driven by special interests and excluding primary stakeholders to try to resolve a fundamental ethical problem with meetings and more paperwork.  Meetings and more paperwork that result in no recourse whatsoever for the patient.

There are two areas of the bill I’d like to address specifically.  The futile care determination and the new Do Not Attempt Resuscitate (DNAR) provision.

The Futile Care determination exists now and today, it doesn’t matter if you have a signed and notarized living will tattooed on your forehead, it is irrelevant to this process.  What the patient believes is an acceptable ‘quality of life’ has no bearing in the current law or the proposed bill.  In neither place does the law allow an effective bona fide second opinion with any force.  In neither place is there an opportunity for an outside opinion to carry any weight.  And nowhere is the ‘quality of life’ question answered by the patient. I’ve read recently that Roman Catholic moral theology places the ‘quality of life’ decision in the hands of the patient because they have ‘the view from the gurney’.  The biological assessment is clearly within the realm of the professional doctor but the ‘quality of life’ question is reserved exclusively for the patient.  But current law and the proposed SB 303 do not acknowledge this fact.  I am not Roman Catholic but I do rely in their philosophy somewhat on western moral issues and I certainly question certain Roman Catholic support for this Bill when the patient is stripped of their god-given right.

Four criterion on the futility of care namely, physiological futility, lack of prolongation of life, poor quality of life and low probability of success would have condemned my father in law to a premature death.  And I know many other cases, too.

The DNAR is new and in similar fashion, doesn’t give the patient any meaningful remedy to a disagreement about treatment.  The patient could get no warning right up until the DNAR is placed in the chart.  And the notice of intent must be allowed verbally but the patient’s objection must be in writing.  That’s one sided.

As in the case with a futile care determination, the DNAR can be reviewed by a panel within the hospital but that decision is final and the patient has no recourse except to submit an objection and offer a powerless second opinion.  Our society requires more for accountability for the installation of sewer lines than for people on their death bed.

Just a few other offending provisions include:

Section 166.012 (j) of this proposed bill even protects the panel, hospital and doctor from review by licensing boards.

166.047 (b.1.c)  allows a second opinion to be submitted to the committee ‘for consideration’.  But they carry no weight.

Section 166.047 (b-1.2) allows up to five people to attend a part of the panel’s meeting …. unless the facility’s policy allows less. So the provision is meaningless.

Section 166.047 (e) requires administering artificial nutrition and hydration except in certain cases one of which is that it is deemed ‘medically ineffective in prolonging the patient’s life’. That makes the entire provision easily voidable.

Section 166.054 requires certain reporting but it is a glaring omission that no reporting is required on the number of futile care determinations that result in recovery.

Please do not support this death panel expansion bill.  It is not pro-life and most pro-life activists and organizations with significant pro-life components are not supporting this bill.

This bill was written by its supporters and the people on the front lines helping families from the outside have been excluded in this bill’s preparation.  Better legislation has been shut down in the past in committee when the better legislation has had half the legislature signed on as authors.  Liberals.  Democrats. Republicans and Conservatives.  All in agreement.  This is a special interest bill in my opinion.

My final thought in asking you to vote against this bill is this.  “If the patient has no effective voice, if living wills don’t matter and if the patient has no recourse, it is a death panel.”

The following members of the Public Health committee should be contacted today and urged to vote against SB 303/HB1444:

Texas House Public Health Committee:

Rep. Lois W. Kolkhorst (HD13, Brenham)    (512) 463-0600

Rep. Elliot Naishtat (DH49, Austin)              (512) 463-0668

Rep. Garnet F. Coleman (147, Houston)        (512) 463-0524

Rep. Nicole Collier (HD95, Fort Worth)        (512) 463-0716

Rep. Philip Cortez (HD117, San Antonio)     (512) 463-0269

Rep. Sarah Davis (HD134, Houston)             (512) 463-0389

Rep. Bobby Guerra (HD41, McAllen)           (512) 463-0578

Rep. Susan King (HD71, Abilene)                 (512) 463-0718

Rep. Jodie Laubenberg (HD89, Plano)           (512) 463-0186

Rep. J.D. Sheffield (HD59, Gatesville)          (512) 463-0628

Rep. Bill Zedler (HD96, Arlington)               (512) 463-0374

Richard W. DeOtte, P.E., CFM

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395 W. State Highway 114, Suite 400

Southlake, Texas 76092

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