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The Aug. 31 op-ed by Jerri Lynn Ward contains several misstatements and exaggerations about both the federal healthcare reform bill and the Texas law concerning advance directives.
Ward raises the often-repeated myth that the bill pending in Congress mandates end-of-life counseling equivalent to "death panels" that will allow bureaucrats to decide whether a person lives or dies. Johnny Isakson, a Republican senator from Georgia, said it best when he called such an interpretation of the healthcare bill, "nuts." Isakson recognizes that the proposed law simply permits Medicare to pay for counseling when patients and their doctors (not government panels) voluntarily discuss end-of-life planning, such as living wills. Rather than have the government make decisions about end-of-life care, the bill actually encourages patients to make those decisions for themselves.Ward fails to provide a balanced account of the Texas Advance Directives Act, which permits individuals to prepare living wills and medical powers of attorney so that their families and physicians understand their preferences for treatment if they are terminally ill or suffer from an irreversible condition. One part of the Texas law cited by Ward refers to situations in which families and physicians disagree about the extent of medical care to be provided at the end of life. In some cases, the patient or family wants to withdraw or withhold lifesaving treatment and the physician refuses. In other situations, the family insists that "everything" be done for the patient and the physician refuses. In most of these cases, the disagreement occurs because patients have not expressed their views about end-of-life care through living wills or other advance directives. Thus, family members and physicians are left guessing about what the patient would have wanted (witness the tragedy of the Terri Schiavo case). In most cases, these disagreements are informally resolved between the healthcare providers and the family. However, in a small number of cases, several of which have been widely publicized, the law has allowed hospitals to withdraw care over the families’ objections after an ethics committee consultation and an inability to find another facility willing to provide the requested treatment. Although there are no official statistics, one survey of Texas hospitals in 2007 revealed that there had been 974 ethics committee consultations on medical futility cases. Out of 974 consultations, the committees agreed with the physician and ruled against the family in 65 cases. Of those 65 cases, treatment was withdrawn in only 27 cases. Despite the law being invoked on relatively rare occasions, Ward leaves the impression that physicians and hospitals routinely (and callously) withdraw care over patients’ or families’ objections. More important, what Ward fails to address is whether family members, even if well-intentioned, have a "right" to demand unlimited care that a physician believes will not cure or even improve the patient’s condition but will only prolong the dying process.Should doctors put aside their medical ethics, personal consciences and oath to "do no harm" by providing aggressive treatment that may, at best, provide no medical benefit or, at worst, cause their patients further pain and suffering? The "futile care" law may not be perfect and reasonable people can differ about whether it should be changed. We can also agree that doctors aren’t always right and that end-of-life decisions by patients and their families should generally be respected. But the one-sided view presented by Ward sees doctors as murderers and wholly fails to mention reasonable, compassionate alternatives to aggressive care for the dying, such as hospice and other palliative or "comfort" measures. The discussion about end-of-life care has been politicized beyond all reasonable comprehension. What began 30 years ago as a movement to recognize the legal right of patients to refuse extraordinary lifesaving care and die naturally has been transformed into a fight over euthanasia. We are told as children that words can hurt. We need to return to a civilized discourse in our public life before we destroy any possibility of compassionate care for the dying.Maxine M. Harrington is a professor of law at Texas Wesleyan University School of Law.
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