Fort Worth

Hospital’s lawyers appeal court’s decision to leave girl on life support another week

Attorneys for a Texas hospital have appealed a judge’s decision to require that a 9-year-old girl who they say is brain dead and riddled with cancer be kept on life support for another week.

On Monday, State District Judge Melody Wilkinson granted the girl’s parents an additional week to seek out a health care facility that would care for their daughter, Payton Summons. The hospital’s appeal, legally called a writ of mandamus, was filed about 4:15 p.m. Tuesday and asks that the order granting the extension be vacated.

Payton was due to be taken off life support at Cook Children’s Medical Center at 1:20 p.m. Monday. A motion to extend the girl’s time on life support was filed by the family’s lawyers about 11:15 a.m., a few hours before a temporary restraining order was set to expire.

The extended order expires at 6 p.m. Monday, Oct. 22, and the expiration of the order will clear the way for the hospital to remove Summons from life support. The court agreed with the attorneys representing Payton’s mother and father, Tiffany Hofstetter and Joseph Summons, on Monday that an extension in this circumstance would be appropriate.

The hospital’s lawyers appealed that decision on Tuesday, arguing that the judge had no good reason to extend the original order and that Payton was declared brain dead by medical professionals on Sept. 25, less than 24 hours after she arrived at the hospital.

Payton “suffered a complete, irreversible destruction of her entire brain, including her brain stem,” the appeal document states. “As such, there is no treatment that can be provided for her, at Cook or at any other facility, that will keep P. S. alive.”

P.S. is how Payton Summons is referred to in the appeal document. The duty of the medical professional is to treat the living, the hospital attorneys argue. To maintain artificially an appearance of life in a dead body is an affront to human dignity and exacts a heavy emotional toll on the patient’s family and the hospital nurses and staff, the appeal document states.

The extension is asking hospital staff to maintain a dead person on ventilation and continue treating a “deceased deteriorating body,” and is “medically, ethically and morally repugnant,” the lawyers argue.

Attorneys for the hospital also argued in their appeal that because Payton was already dead no new facility that would treat her would be located. Gregory Blaies, who is representing Cook Children’s Medical Center, said Monday that the judge was prohibited by law from granting an extension to an order that had already expired.

Wilkinson told Blaies on Monday that she understood there were some inconsistencies with the pleading and said that she wished the lawyers for the parents had submitted their request to the court sooner.

“I’ll let the appeals court decide whether the order had expired,” Wilkinson said Monday.

Wilkinson denied a similar order on Oct. 10 after hearing testimony from Payton’s mother and father. During the Oct. 10 hearing, Wilkinson ruled that no other treatment facility had been located and that she would consider any new petitions at 1:15 p.m. on Oct. 15, five minutes before the expiration of the original order signed Oct. 1 was scheduled.

The hospital attorneys argued that the order was was not entered until 7:45 p.m. Monday, hours after the expiration of the original order.

“At 1:21 p.m., there was no longer a TRO for the trial court to extend,” the appeal document states.

At the Oct. 15 hearing, Paul Stafford, one of the attorneys for Payton’s parents, told the court that three other possible treatment facilities for Payton had been brought to his attention and that the parents wanted to have time to explore these options. Wilkinson said she agreed that the parents deserved more time to look for another facility and to perhaps prepare to say good-bye to their daughter.

The attorneys for the family said after the hearing on Monday that they receive new information about possible treatment placements for Payton daily, but have told the court that so far, a suitable placement had not been located.

But Blaies said in court and in the hospital’s filing to the Second Court of Appeals in Fort Worth on Tuesday that the leads for possible treatment facilities for Payton that Stafford talked about did not justify the extension.

“The sad reality is there are no facilities that are willing to accept P.S.,” the hospital’s attorneys argue. “She is deceased. This was already addressed at the temporary injunction hearing. Plaintiffs are under the mistaken belief, and hope, that all they need is a little more time to find a place that will take her. None will.”

Mitch Mitchell: 817-390-7752, @mitchmitchel3
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