|“Brain Death” & the Texas Advance Directives Act|
Posted: 07 Sep 2019 08:47 PM PDT
Read about this Orthodox Monk’s incredible story and commitment to life and opposition to euthanasia.
(*For those without Facebook, I post the full story below.)
The legislative session is over, but anti-life forces do not rest. Right now patients all across Texas are at risk of having their lives prematurely ended against their – or their surrogates’ – will. I’ve long-written and talked about the Texas Advance Directives Act (“TADA”) and how it unconstitutionally works against patients. Nearly this entire blog has been dedicated to this law, its effects, and efforts to amend or repeal it. But what you may not know is that even TADA does not have to be invoked if the hospital declares a patient “brain dead.” It can withdraw care from a patient without even going through that nominal farcical procedure devoid of due process rights.
Recent case in point: Taylor Campos. Fortunately, her father called Texas Right to Life and Taylor’s life was saved from euthanasia. Read about it for yourself.
What they are able to do with a quick declaration of brain death – which does not require tests – is actually worse than TADA. Read the statute yourself – it is easy and quick. It has two sections. The first section includes subsection (b) which allows the doctor to walk in and “announce” death. The second section makes sure he is immune from liability for doing so and all those who act according to his pronouncement are immune as well.
So, if the person is receiving life-sustaining care, under subsection (b), the doctor just has to go in and “announce[ his] opinion” that they are dead. Note, that “[d]eath must be pronounced before” life-sustaining care is removed.
Then there is the second subsection, protecting a doctor from liability for this “announcement.”
Note that the statute does not require certain tests or any level of “reasonable probability” in making this “announcement” or “pronouncement.” The “ordinary standards of medical practice” simply means “whatever they usually do.” It’s that simple. It’s like that in medical malpractice law. A doctor’s potential negligence is measured against the “accepted standards of medical care” used in that situation. If everyone else is doing it, that’s pretty good cover for a doctor, even if it’s not actually the best medicine. In essence, this “announced opinion” is based on what we’d call in the law, the ipse dixit of the “expert.” This means, “he himself said it” and is defined as “something asserted but not proved.” In civil law cases where expert testimony is required, that is not good enough. You have to have a reliable foundation for an opinion by an expert qualified in the field in which he is offering an opinion where there are not great “analytical gaps” between the facts and the opinions. This high standard of evidentiary reliability among expert opinions applies in all cases – including, ironically – medical malpractice cases. But here, that same standard does not apply despite the fact that we are dealing with decisions concerning life and actual death of people. Interesting, no?
Understand, too, that the term “brain death” is very controversial among doctors and even among Catholic philosophers. There is no definitive test for it or criteria that makes it absolutely certain. In fact, the definition of brain death is not established. It depends on who you ask and where you are at the time. It’s often a medical or legal fiction used to serve other purposes. (Among those purposes is organ donation. At some point, we are going to have to confront that inconvenient truth and all the moral and ethical considerations it raises. Many will be surprised. Many are studiously avoiding addressing this. They don’t even want it brought up.)
There are tests that call such an “announcement” into question and may make a hospital back off, such as blood flow tests to see if blood is flowing to the brain, but those are problematic for a variety of reasons. They are not necessarily definitive either. Often a hospital will want to do an “apnea” test to determine brain death which can (and often) does more damage to the ill person. It requires withdrawing a ventilator for 10 minutes and seeing if they breathe on their own. If they can’t, that is considered “proof” they are brain dead. But if they need the ventilator, they can’t breathe entirely on their own, can they? But that does not mean that their brains have ceased to function either. Other areas of the brain may be functioning fine and they may yet breathe again on their own or with less support given more time to heal and recover. However, being without any or sufficient oxygen for 10 minutes can certainly cause further brain damage. These tests have also been shown to have the greatest possibility for inaccuracies as well.
That said, Texas Right to Life has been successful in a number of cases in challenging brain death declarations where tests did contradict the “announcement” / “pronouncement” of brain death by a doctor. Thanks be to God!
It cannot be emphasized enough that we continue to learn more and more about how brain death is simply not as it has been and is presented. Science actually knows very little about the brain. Much has been based on assumptions that continue to be disproven. People recover from injuries that were said just a few years ago to be impossible to recover from. Follow the Terri Schiavo Life & Hope Network; Bobby Schindler covers these stories and the latest medical research all the time. Follow Wesley Smith who covers the ethical side of this and the ever-expanding euthanasia side of the Culture of Death.
I have a growing library of books written by people who were in “comas” and “brain dead” or in “persistent vegetative states” who recovered eventually. It is stunning what they have to say. (At some point, I may start writing book reviews as I work through all of these.) Less than a month ago, yet another person “woke up” who was never supposed to. Read the stats in this article and where things are (note the attitudes of some of the health care providers as well; what a shame). Then ask yourself if doctors should be making diagnoses that kill people prematurely, even preemptively, especially when that “diagnosis” comes down to “because I said so.”
Nevertheless, in Texas, all it takes is for the doctor to “announce” / “pronounce” the person “brain dead” and a death certificate can be issued with what is apparently intended to be complete immunity for the doctor and those acting under this “he’s dead because I said so” determination. Further, once that declaration has been made, the person is considered “dead” and they do not fall within TADA anymore. Do you see how insidious this is? How the cards are stacked against the patient? They always were even with TADA, but now even the one-sided due process-less “protocol” or “procedure” under TADA is not even required. There is no “hearing” with the “bioethics committee” and no 10 days.
However, if the brain death declaration can be challenged successfully, if the hospital will do the requested tests (I’ve seen nothing that requires them to do them), the very real risk is then that the hospital will invoke TADA to try to withdraw care that way and receive the immunity found under that statute. Remember, when Texas Health & Safety Code Section 166.046 is invoked – and used per the statute (which has no substantive or procedural due process rights for the patient or surrogate) – doctors and hospitals have total immunity from lawsuits under Section 166.044.
Some lawyers have interpreted this to include immunity from lawsuits for medical malpractice that may have occurred prior to the invocation of TADA. To my knowledge, this has yet to be challenged. I hope it is one day. Soon. (But medical malpractice lawsuits, in general, are exceedingly difficult to bring in Texas anyway given the “tort reform” that was put into place which further eroded rights from patients and took away an important means of holding negligent (and sometimes grossly negligent) doctors accountable. It is not true that lawyers sue over everything. We can’t. Lawsuits are expensive (a med mal can easily get to six figures to prosecute) and we foot the bills for many of them until and unless a favorable settlement or judgment is reached, if any. Someday, as an attorney who works on medical malpractice lawsuits and products liability cases on behalf of plaintiffs, I may write a post explaining how lawsuits work and how tort reform – far from helping you – actually hurt you both in financial terms and in terms of your overall safety.)
One can also imagine a scenario in which a quick declaration of brain death and then acting to stop the life-sustaining care of that person could cover up many a mistake or even the investigation to see what might have gone wrong, whether there was negligence or not. People, even doctors, can panic and act in fear. Without further testing or ability to examine the person, it would be very hard to prove a case unless someone actually wrote down what happened in a medical record or was willing to testify. (If you think the blue wall of silence among police can be impenetrable; try finding someone in a hospital that will testify about the negligence of a doctor even where it can be objectively proven). In my world, when evidence is destroyed to cover things up – be it a defective part or some other such thing – it’s called spoliation and you can get into big trouble for it. Here, there are procedures in place to protect one who might spoliate (yes, that’s how it’s spelled) the most important evidence of all – the very patient himself!
This is not to make any specific comment on Taylor’s case, which to my knowledge did not involve invoking TADA, but was the declaration of brain death (presumably to avoid even that) which was successfully challenged. Then she was transferred to another facility for further care. I have not read her medical records and know very little more about it than what I post here.
It is to say, however, that doctors and hospitals can be very quick to invoke either brain death or TADA and that always makes me wonder why. Remember, these are not always cases of people who are terminal or even unconscious or “suffering” (mercy killing is prohibited under TADA, by the way, see Section 166.050). Neither Carolyn Jones nor Chris Dunn were unconscious, but hospitals invoked TADA to withdraw their life-sustaining care to hasten their deaths in both cases. In both cases, Texas Right to Life and their allies worked to stop it and give these people more time. In other cases, TRTL and their allies work to stop the effects of TADA or a brain death declaration to give patients more time for their bodies to heal, for their true situations to be assessed, and, in many cases, for them to be moved to safety.
Pro-TADA forces say this stuff rarely happens in Texas. That is untrue. At the time that Taylor’s case was ongoing, I know of at least three others that were happening at the same time. And, today, I read about another that was going on about this time as well. Joe is a 12-year old who was declared “brain dead.” That decision was challenged and found to be incorrect. His family, as others have, moved him out of state – to New Jersey for Heaven’s sake – to be safe from Texas’ law.
To say I am ashamed of Texas and all those who claim the mantle of “pro-life” and support this is to put it mildly. What they advocate and support should be criminal, is immoral, unethical, and nothing less than a full embrace of the Culture of Death. Those that did not have the courage and strength to amend this law this past session have this on their consciences. They will be judged for what they did and did not do. I’m looking at you, Republicans.
There is only one organization that is fighting against this law, against the political and other forces supporting the Culture of Death – and – just as importantly, if not more so, is helping families get out of harm’s way as best they can – and that is Texas Right to Life. They are the lone organization fighting this in Texas. They take some hits and abuse, as you might imagine, from the forces that make sure this law stays in place and more are victimized by it. But TRTL has many supporters and allies, including many who travel from out of state to help out like Bobby Schindler and Wesley Smith. Their biggest allies, however, may be the families they’ve helped; the families who found out the hard way what Texas law can do to you. But know that those other organizations claiming to be pro-life and support this law as well as the entities that push this law down your throat (and are in an unholy alliance with these faux life groups) do nothing to help out. Of course, they don’t. If you give one penny to them, you’re promoting a Culture of Death. Know that.
If you oppose TADA and want to help families victimized by it, you should be a regular donor to TRTL. You should also consider going to their Houston Celebration of Life, on September 28, or the one that will be held up here in Dallas on October 26. They are excellent events that are inspirational, fun, informative, and an opportunity to meet some really good people who work very hard in ways seen and unseen in this urgent, necessary, but exhausting and difficult battle.
I’ll be at the one here in Dallas and I hope to see you as well. More on all that later.
Thanks for reading!
* For those who do not have Facebook, I copy and paste the story about the Orthodox Monk, here:
Orthodox Parables and StoriesMarch 8 · A monk from the monastery in Chania, Crete: ” agree with everything except euthanasia. My strength is weakened by sicknes.”: Sophronios, who suffers from Terminal Motor Neurone disease, has recently given a sensational interview to Crete TV with the help of a keystroke system.Q: They say that pain completes existence. Do you experience this and how?
A: Pain is a big school and teaches self-knowledge that leads to brotherhood and ultimately to godhood. Pain humiliates you with humiliation, our heart softens and opens to God and our fellow man. I communicate with people all over the world suffering from physical or mental illnesses.With the help of God, with my experience in bed of pain, I understand them, even a little to say a comforting word, a word of our Christ. Today, there is so much loneliness in the world and riot and fear. We Christians who have the gift of God to know Christ must share with our fellowman the joy, the peace and the love that is Christ. Is not this the goal of our existence, to save all?
Q: What would you say to someone who wants to make euthanasia?
Q: Life is a gift of God to all of us. I understand this better than ever now that I’m in bed. No one came to life with his will. So how can you put an end to your life, since it really does not belong to you? This, in my opinion, is the problem of our time, it cultivates in the modern man an egocentric way of life, cut off from the community, from the family, the neighborhood, the homeland, etc. so we think we are independent, self-propelled in this world.I think it is the wrong view of life that leads the man of our time from “self-confinement” to suicide. I understand that he does not want the patient to become a burden on others or does not want his loved ones to see him suffer. It’s very humiliating – I know it very well. But the humble has the Kingdom of God, not the selfish.
Q: Do you think that if you had no faith, would you have the same attitude towards pain?
A: Without Christ I would be nothing. There is another pain that is more painful than the pain we are talking about. And this is the pain that the soul feels when it is lacking in the presence of God, which enlivens everything and gives meaning to this human pain. The absence of God from man’s life today is the most painful pain.
Q: In the bed of pain come moments that make you question God and your faith?
A: On the contrary, it joins me with God and I feel Love and His presence more intense. But it does not mean that the moments of human weakness do not come. The Christian needs faith, bravery, and courage. God never abandons us.
Q: How can pain be blessed? What can “life” mean when you are stuck in the bed of pain?
A: Pain and difficulties are sometimes unbearable for humans. In these moments I feel the presence and consolation of God more intense. I think in both these questions the answer can be given by Him who I also receive in my difficult moments when I look at the crucified Christ. He first turned His own pain into blessing. And His own life on the Cross was glorified and remained in history as the King of Glory. It is the standard and at the same time the rest of every pain.
Q: What are the difficulties of your illness?
A: I have ALS / MND – Stephen Hawking’s disease. It has no cure. I am paralyzed, I only can move my eyelids and lips. I do not swallow, I’m eating through a feeding tube. I do not breathe on my own, except with the support of a ventilator. I can tell you details, but it suffices to say that I can not do anything without the help of someone taking care of me.
As a layman I was very independent to a degree very selfish. Now that I can not do anything without someone else, I understand why Christ taught us to be united in one body. We need each other to be in a society with our fellow humans.
Q: How many years have you been in bed and how does communication work?
A: I have been permanently bedridden for 6 years. I communicate with a computer system that allows me to write with my eyes. Thank God ! You see what the good God is doing!
Q: What do you think you have gained as the most positive of your illness?
A: Without a doubt, the most positive is my union with God, that I feel His love filling my heart.
Q: How is your relationship with your brothers in the Gouverneto monastery now with your illness?
A: I am very blessed in the Gouverneto monastery. It is a holy place under the abode of the Virgin Mary. With the intense presence of St. John the Hermit and the place of martyrs, it has a great deal of grace. In the Divine Economy I have a very blessed abbot, Elder Iromeo, a man of God, full of love. The brotherhood is very beloved with humble fathers who make their struggle.
They take care of me with sacrificial love. An example of the love that exists here: At the time I was a novice my illness was occurred. I was diagnosed with ALS, an incurable disease. When I learned what it all involved, I told my elder that I do not want to be a burden on the brotherhood and I will not stay. But the elder and all the brothers said that they want me as I am. This is the love of Christ.
Q: What would you like to say to the viewers who are watching you now, sick or not?
A: Life without Christ is not life. With Christ at the center of your life you have love, peace and life has another meaning. As St. Porphyrios said: “Christ is everything”.Source ekklisianonline.gr
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