Fort Worth

Texas hospital must keep girl on life support, appeals court says

An appeals court ruled Friday that a girl suffering from cancer can be maintained on life support in accordance with her parent’s wishes, according to the court clerk’s office for the Second Court of Appeals in Fort Worth.

Attorneys for Cook Children’s Medical Center, where Payton Summons is being kept on a ventilation machine, had appealed a judge’s decision extending an order to maintain the girl on life support until Monday.

Payton, who has a tumor that is cutting off her circulation and stopping her from being able to breathe on her own, came to Cook Children’s Medical Center on Sept. 25, according to hospital officials. She was declared brain dead by medical professionals within 24 hours after her arrival.

Attorneys for Payton’s parents stated in their response to the appeals challenge, that the girl’s mother and father reacted in the way that any parents would faced with a similar situation.

“Cook Children’s has stated that it is “medically, ethically, and morally repugnant” to provide such care to Payton,” said Paul Stafford, one of the attorneys for Payton’s parents. “Payton’s parents and supporters find it “repugnant” for Cook Children’s to refuse to allow an agreed resolution of this matter, and to have initiated an emergency appellate procedure seeking the legal right to effectively terminate life-sustaining measures for a nine-year-old girl without the consent of her parents and without exhausting all potential facilities and options for Payton’s possible treatment and care.

“Cook Children’s actions are contrary to the best interests of the child, the wishes of her parents, the order of the court, existing law, the hospital’s own written policies, the will of the public, and the spirit of compassion.

”Payton’s parents are grateful that the court of appeals agrees with them and denied Cook’s writ.”

On Monday, State District Judge Melody Wilkinson granted the girl’s parents an additional week to seek out a healthcare facility that would care for their daughter. The hospital’s attorneys appealed the judge’s decision, and filed a motion about 4:15 p.m. Tuesday asking that the order granting the extension be vacated.

Payton was due to be taken off life support at Cook Children’s at 1:20 p.m. last 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. this Monday, and the expiration of the order clears the way for the hospital to remove Payton from life support.

Last Monday, the court agreed with the attorneys representing Payton’s mother and father, Tiffany Hofstetter and Joseph Summons, that an extension in this circumstance was appropriate.

The hospital’s lawyers appealed that decision on Tuesday, arguing that Payton “suffered a complete, irreversible destruction of her entire brain, including her brain stem. 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. refers to Payton Summons in the appeal document.

Thaddeus Pope, a bioethics expert with a law degree, said it is likely that the courts, hospitals and lawmakers in Texas will see this issue recur as the technology that enables physicians to extend organ function matures.

“It definitely will happen again,” Pope said. “There will be another kid who has a traumatic event, like a drowning, and the hospital will not be able to confirm death. The question is, Does the hospital need consent to do the confirmatory testing.”

The immediate problem could be solved by delegating more power to doctors, said Pope, director of the Health Law Institute at the Mitchell Hamline School of Law in St. Paul, Minn.

The law could be changed to state that when two medical professionals declare that you are dead and the declaration is made in accordance with the law and medical ethics, you are dead, Pope said. Lawmakers could also decide that physicians do not need parental consent to do the testing to declare a child dead, Pope said.

But because most child deaths do not involve a brain death diagnosis, lawmakers in Austin could decide it is not an efficient use of time to work to change the law, Pope said.

Although the situation being faced by Payton’s parents is one that does not happen often, there are a growing number of cases in which the parents have prevented the hospital from determining whether the patient is brain dead, Pope said. Or hold onto the hope that technology can overcome death.

“The hospitals are saying that we do have limits,” Pope said.

There are also trust issues to overcome, Pope said.

“Today, people don’t blink an eye when they question their doctors,” Pope said. “And they are probably able to go to the Internet and find ideas that will support their positions.”

Mitch Mitchell: 817-390-7752, @mitchmitchel3
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