A patient’s family is challenging a Texas hospital’s decision to withdraw his life support, saying a state law that allows providers to halt such care is unconstitutional.

On Dec. 3, a state court is scheduled to consider whether to issue an injunction that stops Houston Methodist Hospital from withdrawing life support from David Christopher Dunn, said Dunn’s lawyer Trey Trainor. The court already granted a temporary restraining order barring the hospital from ending life-sustaining care.

Dunn, 46, was admitted to the hospital about six weeks ago after coughing up dried blood, said Trainor, a partner at Beirne, Maynard & Parsons. Doctors found an unidentified mass on his pancreas, but doctors aren’t sure what’s wrong with him, Trainor said. Dunn is now heavily sedated and on a breathing tube, Trainor said.

Dunn’s doctor determined that life-sustaining treatment was futile. Dunn’s mother, who holds power of attorney, is fighting that decision. Under Texas law, if an attending physician refuses to honor a patient’s requests for care or an advance directive, that decision then goes before an ethics or medical committee. If the committee agrees with the doctor’s decision—as it did in Dunn’s case—the patient has 10 days to transfer to a different facility before the hospital may cease treatment.

The hospital said in a statement that it can’t discuss details of the case out of respect for the family and because of patient privacy laws. It did agree to the temporary restraining order and said that it “will continue assisting the family through this painful process.”

“Houston Methodist is a faith-based, values-centered organization that strives to make the best choices for all our patients. End-of-life decisions are never easy, but Texas law is clear about our hospital’s responsibility in these cases,” the hospital said.

Trainor, however, says the Texas law is tantamount to a “death panel.” He said the law could result in hospitals making decisions about care based on financial concerns. The lawsuit alleges that patients are deprived of due process and also their civil rights.

Trainor said he doesn’t know of any other state with such a process. He was referred to the family by Texas Right to Life, a pro-life organization. But he said he couldn’t discuss whether Texas Right to Life is financially backing the lawsuit. Attempts to reach the group were not immediately successful.

All states have laws that address advance directives, which are instructions for a patient’s medical care should the patient be unable to communicate those wishes, said Diane Hoffmann, director of the Law and Health Care Program at the University of Maryland. And a number of those laws allow providers to stop giving medically inappropriate care despite a patient’s wishes or advance directive, she said.

Most of those states, however, require that a doctor’s decision to stop providing care be in line with the standard of care in order for the doctor to have legal immunity, said Thaddeus Pope, director of the Health Law Institute at Hamline University. That renders many of those laws ineffective, Pope said.

Texas law, however, has no such requirement, making it clearer than other state laws when it comes to allowing doctors to stop life-sustaining treatment if it runs contrary to their professional judgment, Pope said.

Other states, including Idaho, Oklahoma and New York, expressly prohibit doctors from ending life-sustaining care without a patient’s consent. Laws barring doctors from making decisions like the one in Dunn’s case have been increasingly enacted over the past five years, according to Pope.

Pro-life and disability rights groups have largely driven that trend, he said.

“It’s an issue that more and more states may confront,” Hoffman said. “Healthcare providers often feel it’s inappropriate to continue to provide care; that they don’t feel it’s a benefit to the patient. It really boils down a lot to how we define ‘benefit’ and who defines that.”

No court has yet ruled on the constitutionality of the Texas law, enacted in 1999, Pope said. He thinks it may be a strong argument, however, in the right case. The Texas law doesn’t require hospitals to give families much notice before holding ethics committee meetings; the committees aren’t totally independent from the hospitals; and there’s no real route of appeal, Pope said.

But attorney Joe Geraci, a partner at Husch Blackwell in Austin, Texas, said the providers he represents generally think the Texas law includes “a pretty workable process.” Geraci believes the law is well-crafted because it tries to strike a balance between patients, facilities and families.  {He is right, but he is wrong !  Yes the law tries to strike a balance between patients, facilities and families, but the law tilts the balance in favor of the hospital by limiting the right of the patient and his/her surrogate to find another medical facility that would agree to continue treatment of the patient.  The law only provides for a 10-day window of opportunity for the patient/surrogate to find another medical facility and since all medical facilities are members of the Texas Hospital Association it is not hard to imagine that hospitals are reluctant to be asked to second-guess the decision of another member institution.  In the case of Joey Cronin, the 12-year old boy that Driscoll Hospital was trying to kill in order to harvest his very valuable organs, the family of Joey had to transport him to New Jersey in order to get him out of the clutches of the Texas Hospital Association.  The Texas Law needs to be amended  to give the patient/surrogate more tije to find another medical facility willing to accept the transfer of the patient.  The law needs to be tipped in favor of the patient  by extending the time frame from 10 days to 20 or 30 days.  Life must always be given a higher priority than medical costs and organ transplantation. }

In Geraci’s experience, most cases don’t make it to court.  {It is easy to understand why “most cases don’t make it to court.”  It costs a lot of money to pursue justice in our courts.  A family, already faced by huge medical bills is naturally reluctant to engage in a legal battle with the Hospital.  Thank God for organizations like Texas Right to Life and attorneys who are willing to work pro-bono, or at reduced fees, defending life.}  He said disagreements between doctors and families typically get resolved at the ethics committee level.

Trainor said related cases he’s handled  { God bless Trey Trainor and other attorneys like him}  seek to extend the length of treatment after a doctor decides to stop it, so a patient has more time to find a different facility.