Maybe We Need A "Futile Blogging Law"

On the subject of the Texas Futile Care Law and Bush's inconsistency in signing both that and the Federal bill providing relief to the family of Terri Schiavo, Mark Kleiman misfired somewhat, but remains undaunted.  His theme - Bush was inconsistent in signing a 1999 Texas law that would seem to lead to a similar outcome as in the Terri Schiavo case.

Some background:

The 1999 Advance Directives Act in Texas allows for a patient's surrogate to make end-of-life decisions, and it spells out how to proceed if a hospital or other health provider disagrees with a decision to maintain or halt life-sustaining treatment.

If a doctor refuses to honor a decision, the case goes before a medical committee. If the committee agrees with the doctor, the guardian or surrogate has 10 days to agree or seek treatment elsewhere.

Thomas Mayo, an associate law professor at Southern Methodist University who helped draft the Texas law, said that if the Schiavo case had happened in Texas, her husband would have been her surrogate decision-maker. Because both he and her doctors were in agreement, life support would have been discontinued. 

Armed with this information, where does Mr. Kleiman take us?  Here is his post; Atrios excerpted the good stuff, and from that I will extract the Comedy Classic:

Moreover, the law allows for...the termination of life-sustaining treatment for patients with "irreversible" conditions (i.e., conditions from which they will not recover and which leave them unable to care for themselves) even if their higher brain functions are completely normal. Indeed, the law contemplates that a fully competent patient may be served by his health-care provider with a 10-day notice to find another provider or have his plug pulled; it even provides that the patient has the right to attend the committee meeting at which his fate is to be decided. (Sec. 166.046) And the law provides no substantive guidance other than the provider's decision that the requested life-sustaining care would be "inappropriate."

Note - although we do not dispute his reading of the law, we should add that the hospital committee is guided by the relevant medical ethics, which the Texas legislature did not attempt to codify here; hence the lack of substantive guidance.  On to the punchline:

So, if I read the Texas law correctly, it would allow for Terri Schiavo's feedling tube to be disconnected if her health care provider so decided, and if her family couldn't find another provider willing to take the case, even if her higher brain functions were entirely normal (rather than, as appears to be the case, entirely absent), even if she were awake and asking to be allowed to live.

Really?  So down Texas way, if Terri Schiavo were to regain consciousness and ask for a drink, the doctors would practice their Dr. Evil laugh and tell her that her time was up?  Who really believes that a proper application of medical ethics (or common sense) would lead to that result?  Atrios posted that without comment - what does he believe?  (His commenters are unquestioning buyers.)

We seem to have a couple of choices:

(a)  Bush really signed a law that dumb?  What a maroon!  I infer this to be Mr. Kleiman's position.

(b)  When Mr. Kleiman wrote "if I read the Texas law correctly", "if" should have been given more emphasis: **IF** I read the Texas law correctly...

Because of course he did not.

As Prof. Mayo explains, under the Texas law, when the guardian and the hospital ethics committee agree, it is full speed ahead.  When they do not, medical ethical guidelines come into play.

One can barely imagine a case of a conscious, competent patient experiencing futile care and being informed by the hospital that his time was up - perhaps a late disease sufferer on dialysis, a respirator, and an artificial heart who is down to his last few hours or days.  Medical ethics would not allow a conscious patient to suffer needlessly; presumably, at the last stage, pain relief and disease would result in unconsciousness, followed by termination of life support, and death.  (Gosh, so cheery; and how is your day?)

But that is not Terri Schiavo's situation.  If, in defiance of her medical condition, she regained consciousness and spoke, any thought of terminating her would itself be terminated.  It is not Bush that is the maroon here.

Or, if her guardian insisted on continuing her treatment with her current status, the ethics committee would almost surely agree.  As in Florida, and based on her current stable medical condition, the termination decision would be based on her wishes (as made through her guardian).

But setting aside Bush's mental acuity, is there an inconsistency?  He is unhappy with the Schiavo outcome in Florida, yet the Texas law would produce the same result.  Why the long face?  Here is how Mr. Kleiman phrased it:

So, I repeat, where's the outrage? If you think Terri Schiavo is being murdered, you think that George W. Bush signed a bill allowing murder in 1999, and that bill is still on the books. Perhaps Mr. Bush flew to the wrong capital on Sunday; some people in Austin seem to need instruction about the "presumption in favor of life."

Please.  There is process, and outcome.  For example, death penalty opponents advocate for access to DNA testing for prisoners on death row.  Some of those prisoners will have DNA tests which will confirm their guilt, and be executed.  Were death penalty opponents inconsistent in supporting a bill under which people still get executed?   Not if their goal was a more credible process with better safeguards.

And the same argument applies here.  The Texas bill was the result of an open, inclusive process that included all interested parties in the drafting, and which passed the legislature unanimously.

Has that happened in Florida?  There, the system has grown up from court rulings.  I infer from a glance at the television that some folks are concerned that the process down there has not worked.  Let's hear from Tom DeLay on the purpose of the Federal bill:

"The point is that Terri Schiavo should have the opportunity. We should investigate every avenue before we take the life of a living human being, and that's the very least we can do for her."

Evidently, her final fate may be death (as with all of us); in this moment, Tom DeLay was focused on improving the process, not necessarily altering the outcome.  This press release also focused on process.  It is not inconsistent to seek a better process that will often lead to the same result.

Comments

[Meep]

I've just been wondering when did providing nourishment become medical treatment? If Schiavo were on a heart-lung machine that was going to be disconnected, I don't see much of an objection - even if she were conscious. That would be letting nature take its course... as opposed to starving/dehydrating to death.

Sorry, I can't stay around for any discussion of this issue, I have to [strike]feed[/strike] provide medical treatment to my babies.

[Appalled Moderate]

TM:

The bill changed the process. But, the likelihood is that the bill would not have been hustled through had it mandated a result. I think Rep. DeLay's aims were better described this fine piece of rhetoric from the press release you linked to:

"The few, objecting House Democrats have so far cost Mrs. Schiavo two meals already today, and we’re working now to resolve this in time for her to get some food and water tonight."

DeLay was seeking to change outcome through a change in process. Or he knew that it was likely the change in process would not change the outcome, but is using the overheated language to score political points.

I understand and accept your distinction, TM. The problem is that the legislative branch of your party do not.

[BumperStickerist]

Kleinman's position was given its full airing by Al Franken on Scarborough's show last night.

What started off as Joe attempting to get Al to talk about reaction to Schiavo's case by Air America listeners (both of them). Instead, Al launched into a 'Imagine the hypocricy' rant based on George Bush's signing into law a bill that - given Franken's characterization - apparently involved doctors killing patients right in front of the family.

The balance of the time was spent on 'Bush Sucks!' Scarborough doesn't read blogs, so didn't know about your work.

[TexasToast]

Tom Delay was thinking about process? You actually think that this wasn't a result oriented bill?

I've seen the argument that its all a smokescreen to cover for a pending move to go "nuclear" on judicial appointments.

Maybe I'm naïve, but is Tom Delay that good?

[TM]

You actually think that this wasn't a result oriented bill?

If the Appalled Moderate is with me, who will stand against me?

I don't think every supporter of this bill was focused exclusively on reforming the process - I think that became the acceptable compromise that got the bill through.

Setting aside Texas for a moment, does that mean that folks who supported this bill in hopes of a different result are being inconsistent? They got the best deal available in a political process.

So now bring Texas back in - who knows what the right-to-lifers, or George Bush, would have viewed as the "perfect" bill? But they agreed to this compromise, and have stood behind it.

Put another way, how would it look if Texas right-to-lifers were protesting in Texas about a bill they supported just a few years ago that was working justas everyone expected it to? (the amendment to include kids like Sun Hudson was 2003, IIRC).

As to DeLay's motivation, and the possible nuclear option:

I think the "other side" may be thinking too hard about the motivation of the supporters of Terri's mom and family - folks like Don Imus say that, legal niceties aside, they can not see how the ethically correct way to resolve the dispute between the husband and the mom is to kill the daughter/wife.

My wife, a moderate Dem (and mother) feels the same way. So do I.

Look, we are going to agree to force Terri S. to die because, although we don't know what she would have wanted, a court has decided to give more credence to the testimony of the husband (and a few friends).

That strikes me as deeply wrong. And as I said before, when my sense of right and wrong is determined by the laws of the state of Florida as decided by the judges of Florida, I will post the appropriate announcement.

Now, it may be that I should stretch my sense of right and wrong to include the fact that we live in our society governed by the laws we have, and we must respect the process. Fine. But so far, that has mostly happened (if it were my sister, thoughts of solving this by wacking Michael might occur to me, or maybe not).

And for opponents to squeak about "activist legislators" makes ZERO sense - that is what legislators ARE.

Well. I'm stopping for now.

[MattR]

Well, I finally figured it out. We have been talking around each other for a couple of days, but I have seen the light. It seems like your argument is that Texas has good process so there is no need for federal review, but Florida has bad process so it needs federal review.

You claim the Florida system has grown up by court rulings, but I see no evidence to back that up. The Legislature created a process by which the Judiciary makes the decisions in there types of cases. How is that different from the Texas Legislature giving a medical ethics committee the power? It is not like the judge is gonna make his ruling without hearing from medical experts.

Or is the process OK in Texas because the right to lifers had an explicit role in the framing of that bill? Obviously the process must be flawed if every special interest group was not allowed to add their two cents. If you have any actual proof that the Texas process is the result of a more open, inclusive process I would love to see it.

The last thing is that DeLay's quote completely belies your point. If "we should investigate every avenue before we take the life of a living human being", then Sun Hudson and others in Texas should be given the same right to bring their case to a Federal court.

[Joe Mealyus]

"Or is the process OK in Texas because the right to lifers had an explicit role in the framing of that bill?"

I think the process in Texas is OK because a case hasn't come to our attention in which the faults in the process are revealed. As soon as that happens, that process will not be OK. But until then, it seems OK.

[TexasToast]

"That strikes me as deeply wrong."

Lets agree to disagree.

"And as I said before, when my sense of right and wrong is determined by the laws of the state of Florida as decided by the judges of Florida, I will post the appropriate announcement."

The applicable laws of the State of Florida merely make Michael S the guardian for his wife and the person to make this sort of decision for her if her wishes are not known.

He is her husband. He is not disqualified. Do we trump federalism, the principal of res judicata, but also the sanctity of marriage when we don’t like the result?

Sure looks like it.

[Joe Mealyus]

If you read Mark Kleiman's blog, you will see that over and over again, he asserts that Terri Schiavo is in a persistent vegetative state, i.e. he is certain about this. He even makes statements like "[t]he brain scans clearly show that the entire cerebral cortex has been replaced by spinal fluid."

Obviously there is reason to think that Mark Kleiman may be right - after all, this (PVS) was the testimony of the court-appointed neurologist (the neurologists/doctors appointed by the interested parties split 2-2, of course) in Florida.

I think that Mark Kleiman's suggestions that Bush's actions represent some sort of hypocrisy on-the-grandest-scale-imaginable is a pretty minor and uninteresting point, even if he could find a good parallel, which obviously he hasn't. (So far anyway - one wouldn't surprise me). But what really underlies his analysis is the idea that Bush and Delay must be (or should be?) certain about Terri Schiavo's medical condition - just as he is.

If Terri Schiavo's medical status is truly known to us with certainty, then Mark Kleiman is right. His
particular charge that "[Bush] and his buddy Tom DeLay just worked up a charade to please their political base and drive their policy failures and ethical problems off the news pages" may not hold up - he doesn't say why he believes the soldiers are out in front of the generals on this one, although I suspect - perhaps uncharitably - that "it's just like them" might help explain it.

But if our knowledge of Terri Schiavo's medical condition is as certain as Kleiman says it is, nothing he says is unreasonable or foolish, or mindlessly arrogant. If he's right, he's right.

[TM]

From MattR:

If you have any actual proof that the Texas process is the result of a more open, inclusive process I would love to see it.

Well, there is the description here as to how the 1999 bill was struck.

If you have a good history of how the FLA system grew up, I would love to see it. My impression was that it was ad hoc based on the 1990 Cruzan Supreme Court ruling, but if they sat down and took a comprehensive stab at reforming this, let us know.

From Tex T:

Do we trump federalism, the principal of res judicata, but also the sanctity of marriage when we don’t like the result?

Waddya mean, "we"? And mother love is the ultimate trump, or was in the Harry Potter books.

But based on my position, I would say that "we" failed to trump anything, but yes, we try. That, BTW, is why my righty pals are killing me.

[Crank]

Kleiman's track record with reading statutes without the guidance of a lawyer or court decisions is not good.

[TM]

I think he needs new eyeglasses - something a bit less partisan, maybe.

Some folks may not remember this post from BC.

[MattR]

TM - Yeah, I knew the story behind the Texas law, but I don't know a whole lot about Florida. I was kinda hoping you knew more about Florida since you were the one claiming the process was flawed there.

[Jamie]

"Sanctity of marriage"? You're kidding, right? In a year in which Scott Peterson was sentenced to death for killing his pregnant wife? At a time when something like half of first marriages end in divorce? And particularly in this case, when the husband is effectively polygamous - claiming the legal rights of a husand with one wife while enjoying the rest of the benefits of marriage with another? To say nothing of the epithets he has leveled toward his legal wife while biting his nailis waiting for her to die?

I think Mr. Schiavo has done a thorough job of abandoning the "sanctity" of his marriage. What he hasn't abandoned are the book rights. This is - I fully acknowledge - an uncharitable point of view. But actions still speak louder than words, as they say.

[TM]

Matt R:

I was kinda hoping you knew more about Florida since you were the one claiming the process was flawed there.

Matt, you caught me toe-dancing down the line. This is what I wrote:

Has that happened in Florida? There, the system has grown up from court rulings. I infer from a glance at the television that some folks are concerned that the process down there has not worked.

If Florida *did* undertake a comprehensive reform, I sure have not seen that covered in the last week, and somehow, I heard about Texas' reform effort - wouldn't folks be screaming that Jeb Bush and the right-to-lifers in FLA were hypocrites if he had signed a reform bill five years ago with their support and was now contesting it?

But that said, it is only my guess, suitably hedged (or maybe not).

[Cousin Dave]

TexasToast, I think part of the problem here is that, at this point, Michael is Terri's husband on paper only. The guy is living with another woman and has two children by her. Consider this thought experiment: Suppose that Terri were fully conscious and able to make her wishes known somehow, but otherwise bound within her current condition (paralyzed, has to be fed through a tube, etc.). Now, if some of the reports I've heard are true, Michael has spent almost none of the trust money that was set up for the purpose on Terri's care. Don't you think that at this point Terri would be suing for divorce? Under those circumstances, would a judge simply permit Michael to act willy-nilly with the money that Terri needs to keep herself alive? I think I can state with certainty that under those circumstances, almost any family law judge would have placed the money either in Terri's own control, or in the control of another guardian. No way would Michael still be in control of the trust at this point.

Unfortunately, I don't know that any law allows suing on behalf of another party for divorce. It's almost too bad, since it would have been interesting to hear some of the witnesses that are talking about Terri wanting to die talk about the state of their marriage at the time she fell ill. Her original illness has never been adequately explained in any of the accounts I've seen, and I don't hold Mr. Mikey to be totally above suspicion in that regard.

[MattR]

Cousin Dave - your problem seems to be that you are reading the wrong reports. The following are facts:
1) The money is being spent on Terri's medical care. (not all of it, since some is going to legal fees)
2) Terri's parents actively encouraged Michael to begin dating and to introduce them to his girfriends.
3) A jury ruled that Terri's heart attack was caused by an undiagnosed bullemic condition (a sttlement was reached during appeal)

check out http://abstractappeal.com/schiavo/infopage.html for more