Futile Treatment, the Right to Decline Treatment, and Hypocrisy: Clearing the Air
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KTK
Things are still getting a bit out of hand regarding the Texas “medical futility” statute that I mentioned in my previous post. I was originally worried that discussion of this law - which provides for medical care facilities to terminate treatment that is clearly “medically futile” (offers no tangible benefit to the patient) even in the absence of a patient directive declining such treatment and in fact over the objections of patients’ family members who cling to unrealistic hopes for improvement - would spark a conservative backlash against a needed mechanism for dealing with such cases forthrightly. What is happening instead is that some commentators have highlighted the glaring difference between conservative intervention in the Terri Schiavo case - to impose treatment that the patient herself said she did not want, at the request of family members who harbor unrealistic hopes - and their acceptance of the Texas statute which allows for unilateral withdrawal of treatment that the patient may have wanted, even over the objection of family members who harbor unrealistic hopes. It is this commentary that is sparking a conservative backlash, against supporters of Terri Schiavo’s request not to be treated who have claimed this inconsistency with regard to the Texas law is evidence of conservative hypocrisy or grandstanding in the Schiavo case.
When I objected to some of the discussion offered by one major source of the “hypocrisy” argument, my post was picked up on by conservatives, including Tom Maguire and (oh, the shame!) Michelle Malkin , as supporting their position. In fact, I agree in part with the “hypocrisy” argument, and that the difference in conservative responses to the Texas cases and the Schiavo case reveals an inconsistency. I also agree that there has been much misunderstanding of the Texas case. I wanted to try to sort that out here.
Right to Refuse Treatment
The Supreme Court, notably in the famous Nancy Cruzan and Karen Ann Quinlan cases, and several others, has gradually recognized that all competent adults not only have the right to decline any and all medical treatments, including the provision of nutrition and hydration, but that they may express their wishes regarding such treatments ahead of time, and have a right to have those wishes respected if they later become unconscious or uncommunicative. This is the basis for “living wills”. Importantly, though, the Court has also held that any clear and convincing evidence of the patient’s wishes may be taken as binding, even if explicit directions regarding healthcare had not been written down. Thus, testimony from family and friends who knew the patient’s beliefs can be accepted by a court as evidence of the patient’s wishes, and then used as the basis for decision-making regarding that patient’s care if the patient cannot themselves make those decisions.
This is the situation Terri Schiavo is in: her husband and several friends testified that she had repeatedly made clear statements about her general wishes for care in the event of severe debility, and had even make explicit statements about particular treatments including feeding tubes. The state court has repeatedly held that that evidence was convincing, and that statements to the contrary by Terri Schiavo’s parents and siblings was not convincing. That being the case, the court directed that her treatment be terminated in keeping with Terri Schiavo’s own wishes. Michael Schiavo’s roles in the case have been limited to providing court testimony as to Terri’s wishes, and to overseeing her care, as her closest relative, by acting in her name to see her wishes carried out. (Nothing about this case hinges on, or has anything to do with, Michael Schiavo’s own, personal wishes for Terri Schiavo’s care - repeated misleading statements by his opponents notwithstanding.)
So, the Schiavo case is actually quite straightforward: it is an example of a court directing that care be given in keeping with the patient’s previously-expressed wishes, after the court became convinced at trial that those wishes were accurately known and they clearly covered the kind of situation Schiavo is now in. (The case has been muddied by much talk about whether Schiavo is technically in “persistent vegetative state” or not, and by wild accusations that Michael Schiavo had abused her, wants to kill her to inherit her medical trust fund, or some such thing. First, it does not matter whether she is in PVS [though, in fact, she is] - she has the right to decline treatment no matter what condition she is in, and the right to have her expressed wishes acted on, if they are known, no matter what condition she is in. Second, the court repeatedly found that the accusations against Michael Schiavo were unfounded at best. Finally, these issues are irrelevant to the basic legal - and moral - question, which is what Terri Schiavo wanted in this case. If that is known - and the court has repeatedly found that it is - then the thing to do is simply follow those wishes. The side issues do not change that.) Cases such as this occur literally thousands of times a year in the US; this one is in no way unusual except for the extreme degree to which the patient’s relatives refuse to accept this finding, and the intervention of right-wing activists who have jacked up the rhetoric and public outcry to unheard-of levels. The guiding principle in the case - that patients’ wishes will be acted on when they are known, and that second-party testimony of oral remarks can be sufficient evidence for such wishes - is long established and is a vital part of seeing that patients have as much control over their own care as possible (especially since so few people have formal, written advance directives). It is that principle that is threatened by Schiavo’s parents and by Congressional intervention in this case - a threat that encompasses not just Terri Schiavo but every patient in the country whose care is guided by oral statements by the patient prior to their loss of consciousness.
Medical Futility
There is another category of cases in which care may be terminated - this one more controversial. That is the situation known as “medical futility.” When a certain treatment offers no reasonably foreseeable benefit to a patient, or when the patient is so debilitated that no treatment can offer a possible benefit, then such treatment is “futile.” Patients, or the families of unconscious patients, often demand futile treatments - they cling to unrealistic hopes, or they want to “hold out for a miracle,” or they have heard of some exotic treatment or machine that they think will help them, and they insist on having it even when there is no known medical reason for doing so, and no factually-grounded expectation that it will help. One can certainly sympathize with the families in these cases, but that does not mean we must agree that there is any tangible benefit to the patient from the futile treatment.
Providing futile treatments is a problem. Often, they are treatments for the most badly-debilitated patients, and such patients often require extensive clinical staff involvement - nursing, physical or other therapy, doctors’ visits, and other staff assistance on a regular basis - that takes staff away from aiding patients who can benefit more. Also, such treatments may involve the use of scarce resources such as exotic equipment or scarce drugs, thus preventing other patients from obtaining them. And, finally, there is of course the question of money: insurance companies may not pay for futile treatment, and patients’ families may not be able to pay, leaving hospitals with sometimes very large costs for intensive treatment that is justified by nothing more than wishful thinking. This financial angle, unfortunately, has gotten blown far out of proportion in the discussion of the recent Texas cases.
The Texas cases (see my previous post for details) involve the concept of medical futility. In order to deal with the problem of patients’ families demanding extensive treatment and life-support for patients who were completely hopeless of ever improving or recovering, Texas - with the cooperation of National Right to Life, and supportive testimony from a wide spectrum of advocacy agencies, liberal and conservative - passed a medical futility law that allows caregiving institutions to initiate a consultation regarding the prognosis of patients and, when it is determined that all further care for such patients would be entirely “futile”, to discontinue such care even over the objections of the family members. The consultations involve clinical staff and hospital ethicists, and usually allow for input from the family themselves. The law provides a 10-day grace period after a determination of futility has been made, during which the hospital is legally required to make efforts to transfer the patient to another facility willing to accept them, and during which the family is allowed to make such efforts on their own. In practice, most facilities far exceed this time period in their efforts to work with the patient’s family. (In the case of the infant Hudson, the hospital had been maintaining him on a ventilator for 6 months while his mother insisted he would “grow out of” an invariably fatal genetic disease; in the Nikolouzos case, he had been severely brain-damaged for 4 years, and all but brain-dead for over a month.)
The Texas cases are unusual in that, while the concept of “medical futility” has been around for some years, the move to applying it unilaterally, over a family’s objections, is new, and, obviously, emotionally fraught. The Hudson case - ventilator support for the infant was terminated, and he died, just one week ago - was the first time in the nation that life support for an infant had been terminated over a family’s objections. In both the cases recently in the news - “Hudson” and “Nikolouzos” - the Texas law was invoked over the family’s objections, to terminate care for a patient who had not themselves indicated that they did not want to be maintained in their present condition. (Nikolouzos was finally transferred to another facility when one was found at the last minute.) That is, the hospitals took it on themselves to end the treatment - and thus end the lives - of patients who could not be helped, not because the patient had indicated they wanted that, but because the hospital felt there was no point to continuing treatment even if the patient or the patient’s family still wanted it.
Before continuing, let me emphasize, as I have said before, that I think there is a place for decisions of this kind. It is unrealistic and unfair to allow a family to demand extensive resources that cannot realistically make a tangible difference in the patient’s clinical condition, simply because they choose to. When the family cannot pay for those resources, or is demanding resources that other patients need, the problem becomes more acute, but it is a problem even under the best of circumstances. Hospitals usually go to great lengths to accomodate families’ wishes, but there must be a limit, and when families will not constrain their own demands in the interests of fairness or simple realism, there must be a mechanism to make such decisions even against their objections. The Texas law - worked out as a compromise between many points of view - offers such a mechanism, and it seems well-designed. In my opinion, it was right to pass such a law, right for then-Governor George W. Bush to sign it (and that’s a first! - I’m certain that’s the only positive thing I’ve ever said about George Bush, and I’m convinced it’s the only one he’s ever deserved), and right, as far as I can see, for the hospitals to invoke it in these cases. Unfortunately, the Houston Chronicle, and particularly reporter Leigh Hopper, pitched stories about both the Hudson and Nikolouzos cases as being motivated by the loss of health insurance. In fact, there appears to be no evidence that that was a motivation in either case, and the Texas medical futility law does not discuss ability to pay (it is possible to terminate futile treatment even if the family can still pay for it). I am suspicious that the reporter was seeking a controversy - and it was that controversy (”they’re killing people for money!”) that I wanted to head off in my original post.
It is interesting that strongly pro-life organizations were supportive of the Texas medical futility law, and yet are so set against termination of treatment in the Schiavo case. After all, in the former, patients’ life-support is being cut off without guidance from the patient that they desired that course of action, while in the latter the decision to terminate life support is taken in response to the patient’s own expressed wishes for that course. In both cases, there may be (and in these recent cases, there have been) objections from family members, but in the medical futility case the governing opinion is that of the hospital, while in refusal-of-treatment cases the governing opinion is that of the patient themselves. It seems that if you were going to accept any termination-of-treatment scenario at all, it would be the one predicated on patient autonomy and the patient’s own wishes, and not the one predicated on outside expert opinion contrary to any interested party’s wishes. But conservatives have taken exactly the opposite tacks in these recent cases.
What is particularly ironic is that the case that is, in fact, fairly ordinary as far as standard medical decisionmaking practice goes, and the one that rests on the best-settled and least-controversial moral principle - the Schiavo case - is the one that has attracted such unbelievable publicity and conflict, while the cases that are actually breaking new and controversial ground, and are in greatest conflict with the fundamental principle of patient autonomy - the medical futility cases - have gotten such support from circles that would normally be in opposition to termination of medical treatment.
Hypocrisy?
Some - notably Mark A.R. Kleiman - have argued that this is right-wing hypocrisy - that activists have seized on the Schiavo case to promote their pro-life agenda, to roll back patient autonomy rights over termination of treatment decisions, to secure pro-life votes ( in the case of the GOP), or simply to generate publicity, while they have ignored the medical futility cases because they do not offer the same potential political payoff (the Schiavo case has been building for years and commands an already-energized activist base, while the other cases were relatively obscure).
For the charge of hypocrisy to stick, we would need to believe that the motivating beliefs in both cases are the same, and tjat activists have chosen different courses out of political expediency, against their own principles in one of the cases. That makes sense if the underlying ideal or principle is one of “continued life at all costs.” And there is certainly some reason to believe that that is the operative principle for the right wing in these cases.
For one thing, that is, in fact, the principle of the far right wing that opposes any form of termination of treatment. That segment of the right would, to be consistent with their principles, have to oppose termination in both the Schiavo and the futility cases. In addition, we have George Bush’s repetitive slogan “err on the side of life,” which he used to justify his support for Terri Schiavo’s parents’ intrusion into her treatment decision on the grounds that they were hoping for a cure that the court had determined, on expert testimony, was impossible or unproven. There seems to me to be no difference between Schiavo’s parents’ hopes and that of the Hudson baby’s mother, or Mr. Nikolouzos’s wife, so a principle justifying the former’s intervention in someone else’s healthcare should certainly be stretchable to cover cases in which a hospital seeks to terminate treatment where the hopeful family member is the only party to express any preferences at all. And, of course, there are the much-remarked-upon ways in which this case has been politicized, from the infamous GOP “talking points” memo to Tom Delay’s unmistakeably opportunistic posturing to the picketing and harassment of Michael Schiavo, his lawyers, and the state-court judge on the case.
Thus, there is a strong current in favor of “treatment in call cases” within the pro-life movement, and clear indications of political manipulation among GOP and activists interested in the Schiavo situation. Those facts do comport with - if they do not exactly prove - that the difference in reaction to the Schiavo and futility cases is not consistent with broad moral principle but is motivated by political expediency instead. If one is inclined to see hypocrisy in this behavior, in my opinion there’s a good case to be made there. I do not disagree with Mark Kleiman’s claim in that regard (I did criticize him on another point, but not this one); those who read me as doing so misunderstood my previous post.
However, I think it’s important to understand exactly where this hypocrisy lies. It is in opposing termination of treatment in one case and not the other, especially where the former actually rests on a less controversial moral principle and involves a much lesser degree of violence to interested parties’ wishes. The discussion of hypocrisy that has grown up about this issue seems to have gathered in the question of payment for futile treatment, which in my mind is, first of all, not the truly controversial part of the futility statute, and at any rate not part of the conflict or inconsistency that would justify a charge of hypocrisy. Whether or not the right wing’s behavior in these cases is hypocritical, that determination does not hinge on whether any particular decision is made on financial grounds. It has to do with whether they are consistent on their own principles across the cases. If the governing principle is “err on the side of life,” or “seek active treatment in all cases”, then it seems to me the charge of hypocrisy has some heft to it.
Financial Motivation
The confusion in the Texas futility cases has been the role of the patient’s ability to pay for futile care. Leigh Hopper’s two articles from earlier today gave a strong impression that hospitals were cutting off patients’ life support because their money had run out. A close reading of the articles reveals no such thing. It’s certainly true that money is a factor in these cases - how could it not be? - but many other resource-availability questions are also factors, such as the need for staff services for other patients, the demand among multiple patients for scarce equipment or medication, and the availability of intensive-care beds and other facilities. And, finally, there are non-resource-related questions, such as the emotional drain on staff of providing futile care in difficult cases, and the common-sense principle that care should be given only when it is reasonably possible that it will make a tangible difference to the patient. All these are operative in futility cases, and the Texas futility statute does not emphasize any one of them, let alone the financial aspects.
My fear from the beginning has been that pro-lifers would politicize medical futility they way they have done with refusal-of-treatment in the Schiavo case, using a trumped-up controversy over side issues to undermine appropriate decisionmaking in end-of-life situations and forcing a de facto pro-life solution of never ending treatment for any reason. I wanted to emphasize that medical futility, however wrenching it may be as a justification for termination of treatment, is a valid concept that has a necessary place in practical decisionmaking. I also wanted to emphasize that the financial aspect of futile cases - that patients’ families may demand futile treatment that they themselves cannot pay for, and this is both unfair and detrimental to other patients if there is no way to deny their demands - is both relevant and only one of many determining factors in such decisions.
In my mind, the question of right-wing hypocrisy was a secondary issue. There is certainly enough to criticize about the way the Schiavo case has been shamelessly hijacked for political purposes. The behavior of some in this case - especially George Bush, who actually signed the Texas law providing for termination of treatment against family members’ wishes, but less than 24 hours ago signed another law providing for continuation of care against the patient’s own wishes - is certainly hypocritical, but that seemed to me the less-significant issue. That behavior was revolting and immoral whether or not it was hypocritical, and is revolting and immoral even among those right-wing activists who are not, in fact, inconsistent or hypocritical on the two issues. They are wrong for so many reasons it hardly matters to me whether they are consistently wrong. It may be useful to point out the hypocrisy as a way of underscoring that the political hysteria over the Schiavo case is just that - politically motivated grandstanding, and not an act of principle - but, again, that is not the worst thing about it. (I also worry that the charge of hypocrisy will move some right-wingers to revert to they principles by opposing futility decisionmaking in the Texas cases, which would certainly be a step backward.)
To my surprise, my objection to one part of Kleiman’s post on this topic was seized on by right-wingers as a refutation of his charge of hypocrisy. In fact, I explicitly said, in my previous post, that the hypocrisy charge “is a reasonable point”. I then criticized him for “missing the central problem” - which to my mind was the charge that patients’ care was being terminated for financial reasons, not the charge that the right-wing failure to criticize the futility law was hypocritical. I objected to Kleiman’s discussion of the financial angle because he argued that finances cannot be a reasonable factor in termination of treatment, and because he seemed to suggest it was the motivating factor. I disagree on both points, for the reasons above. But I think that Kleiman’s article was good in most respects, and that his charge of hypocrisy - though, again, I don’t think this is the main point at issue - is correct. I realize in retrospect that my post had several flaws: my writing was not clear enough; I also got somewhat tangled up in the financial angle before straightening the details out more carefully; and my language criticizing Kleiman was too harsh when in fact my disagreements with him are not that severe (and I thus may have given the impression I was in opposition to him when I was mostly in agreement). Those who read my disagreement over some financial arguments as a disagreement with his hypocrisy argument are reading too much into what I said.
Hope that helps.
Again, thanks, both for the kind words and the helpful exposition. (And, for the record, I didn’t regard your earlier language as unfairly harsh. Unlike some other comments, they were directed at my arguments and recitation of the facts and not at me.)
One footnote: Though some of the people who linked to me used the term “hypocrisy,” I did not. My charge was inconsistency and insincerity. Hypocrisy I take to mean pretending to have a virtue one lacks, and in particular criticizing others for misdeeds similar to one’s own. By that standard, there’s no hypocrisy here.
Two of my readers familiar with the Texas Children’s Hospital have supplied accounts of that case consistent with yours and inconsistent with mine or the Houston Chronicle’s. I’ll be updating as soon as I get their permission to quote them. They are both convinced that the Texas Children’s Hospital acted strictly in what it saw as the interests of Sun Hudson, and not for any financial reason.
Comment 3/22/2005
Schiavo round-up
Kevin Keith, Tom Mayo, and Dahlia Lithwick explain it all for you.
Trackback 3/22/2005
The really scary thought that I have is that this wouldn’t be happening like it is if Terry were male rather than female. It makes me wonder if this is the real source of some of the far-right interest in the case, i.e., another way for a woman to not have control over her own body, parent’s wishes supercede her own, etc.
Comment 3/22/2005
Meme Deflation
For the past few days, I’ve been curious about a law I heard about in Texas. According to the liberal radio yakkers, then-Texas Gov. George W. Bush signed a law that is now being used to send people to death despite their wishes and those of their fam
Trackback 3/22/2005
Thank you for the thoughtful post.
There is, however, one issue I take exception to. That is of hypocrisy.
One of the assumptions many blogs have been making about this case is that prior to Bush signing the 1999 law, hospitals and doctors could not terminate life support against a patient’s or guardian’s wishes. This is not correct.
Prior to the enactment of the law he signed, doctors were not “not civilly or criminally liable for failing to effectuate a qualified patient’s directive.” The only thing the doctor had to do was “make a reasonable effort to transfer the patient to another physician.” These quotes can be found in Section 672.016(b-c) of the Texas Health and Safety Code for 1997. A copy of the then-current law can be found at http://www.texasprobate.com/othe…her/ statdtp.htm
As Scott McClellan pointed during the Press Gaggle yesterday:
This legislation, some of the new protections it put in place were –included, the ethics committee review by the hospital, in working with the families as well, making — you know, to discuss those decisions, determinations. And it also provided a 10-day period, so they had 10-day notice to be able to transfer the patient to another health care provider. And it also authorized court proceedings to extend that 10-day period in order to extend that transfer, if necessary.
http://www.whitehouse.gov/news/releases/2005/03/20050321-2.html
It was not a perfect bill, but it was the best Bush could do at the time. If you look at the Texas House in 1997, it had 82 Democrats and 68 Republicans. The Senate had 17 Republicans and 14 Democrats.
The breakdown can be found at http://www.lrl.state.tx.us/legis…/ profile75.html
Bush and the Right-to-Lifers didn’t get everything they wanted, but if Bush had vetoed the bill there would have been NO new protections in the law.
Comment 3/22/2005
Those opposed to the cessation of the provision of hydration and nutrition to Terri Schiavo aren’t believers in patient autonomy at all costs. They don’t believe, for example, in assisted suicide, which is a logical extension of the principle of patient autonomy. They believe that principles external to the will of the individual are relevant to the care of the individual (which isn’t to say that the patient’s wishes are to be ignored). So, in principle, they should have no problem with the withdrawal of treatment when treatment is futile, even if the individual (or her family) insists on further treatment. It is possible, however, that they’d disagree with particular decisions as to futility, and the reasoning behind such motivation. For example, they might believe that withdrawal of artificial ventilation is, at times, appropriate, but believe that the withdrawal of nutrition and hydration is not appropriate on the basis of
futility.
If they believe that cessation of “extraordinary means” is appropriate when those means are futile, and that the provision of hydration and nutrition is not extraordinary, then don’t we have a distinction between the Texas cases and the Schiavo case? Weren’t the Texas cases cases of the withdrawal of artificial ventiliation, and not cases of the withdrawal of nutrition/hydration?
Comment 3/22/2005
Thomas:
These are good points. Thanks for an intelligent and thoughtful argument.
As to specifics: well, nobody is a believer in autonomy “at all costs“, including very strong autonomy advocates, among whom I number myself. “Futility” is a “principle external to the individual” that autonomy advocates can easily recognize, and in fact the Texas statute got support across the political spectrum.
But whether the right is being hypocritical in respect of the Schiavo/Texas cases depends on whether there is a principled position that distinguishes between the two, and also whether that position is in fact the position they take. You are correct that it is possible to make a principled distinction between the two cases. The distinction you make - that one involves “extraordinary means” and the other involves “just” feeding and hydration - is rather shaky, however. The “ordinary/extraordinary” distinction was common in medical ethics language 20 years ago but has gradually fallen out of favor, in part because it is clearly arbitrary (what is “ordinary” depends on the state of technology, which changes year to year), in part because there is no clear definition of either term, and in part because the designation of treatments as “ordinary” and “extraordinary” bears no relation to more important moral concepts like their degree of conformity to the patient’s desires and their impact on the patient’s course of treatment. More relevantly for our purposes, this distinction is clearly not the one most people are using in these cases. When Bush talks about “erring on the side of life” he makes no distinction between doing so in cases of “ordinary” treatment or “extraordinary” treatment. Also, the Texas statute makes no such distinction, so to accept this statute is to accept the notion of futility even of “ordinary” treatments. And, it is evident that much of the opposition in the Schiavo case is simply set against any termination of treatment here - they would not accept Terri Schiavo’s reported wishes if she were on a ventilator as opposed to a feeding tube, so it is not a question of what treatment she is getting that makes the decision in their minds.
A more reasonable distinction might be based on the patient’s cognitive state. It might make sense to terminate treatment of patients that were clearly profoundly and irrecoverably brain-damaged, but not in patients with greater remaining cognitive function. However, that distinction would suggest that treatment should be discontinued for Terri Schiavo, who is so severely brain-damaged that she literally has no, or virtually no, cortical tissue left; the Texas patients (particularly the Hudson infant) were not nearly so badly off. This clearly is not the distinction being made by conservatives in these cases!
Instead, we see fervent opposition to termination in the Sciavo case, but no opposition to termination in the cases of futility, and this distinction is not predicated on notions of “ordinary” or “extraordinary” treatment (Bush, who is a principal actor in both cases, has never suggested anything remotely like that, although he is all over the news repeating his slogan about “erring on the side of life”); neither is it predicated upon distinctions in the patients’ clinical states. What we do see is a lot of absolutist rhetoric about “life” and “killing” expressed in terms that admit of no nuances and no distinctions - but about only one of these cases and not the others. Add to that the unmistakeable grandstanding and political manipulations, and the bizarre antics of clowns like Randall Terry and Bo Gritz, and I think the term “hypocrisy” fits the case.
You are right that it is possible to distinguish these cases non-hypocritically. I don’t think you’ve shown that the most prominent right-wingers in the news have done so. In particular, the argument you use to do so does not seem to be the argument they are using. To be fair, there probably are many people opposed to terminating Terri Schiavo’s feedings who are not hypocritical about the Texas cases (including the many who probably have just not heard of them). The question of hypocrisy is clearly directed at the prominent figures in the news, not at most private citizens. But among the group that has been heard most loudly on this issue, there is a great deal of posturing and precious little careful thinking or clarity of moral principle.
Comment 3/22/2005
Kevin, I think we have some areas of disagreement. I’ll pass over the merits of the ordinary/extraordinary distinction, except to say that the fact that these standards have fallen out of favor in some circles in favor of a focus on autonomy doesn’t demonstrate that autonomy interests are more important.
The Schiavo case was, however, decided in this world, not in some other one. So of course advocates for Terri’s continued living must make arguments focused on her autonomy. In the absence of certain information about what she would choose, we have a presumption in favor of life. That’s what Bush is referring to, and that is fully consistent with the letter of Florida law (though, in my opinion, not at all consistent with the practice in this case). (I have read the court opinions and some of the background material, and in my view the court doesn’t offer good reasons for thinking that Terri’s views are as set forth by the court.)
I agree that it’s possible that some of those who favor Terri’s continued living would favor her continued treatment no matter what that treatment is. But since the supposed inconsistency is the fact that they haven’t reacted that way to other cases, in which a relevant difference is the care being provided and the condition of the patient (in one kind of cases, dying, and in the other kind of case, permanently injured but not dying), then perhaps we should assume–generously-perhaps-that they’re acting in a consistent way, even if we’d disagree.
Comment 3/22/2005
Schiavo, futile care, Bush, Delay, etc
Both Kevin T. Keith and Mark A.R. Kleiman have detailed and thought provoking posts and the discussion surrounding the Texas Futile Care law, and how it may or may not relate to the Terri Schiavo case.
Trackback 3/23/2005
My ears are burning (finally). Did I actually cite you as criticizing Mr. Kleiman’s hypocrisy/insincerity argument? I wonder where? This is what I said at my humble blog:
Solet me ask you - is there any evidence at all that Texas Children’s Hospital gave up on Sun Hudson for financial reasons? I have seen nothing on the status of the mom’s insurance anywahere, but I have seen that Texas Children’s is one of the premier pediatric facilities in the United States. I have also seen that the decision to terminate is made under Texas law by the hospital’s board of ethics, not the CFO.
Hmm, I was pretty clear about the money angle and pretty coy about the hypocrisy point. And I am not normally shy (at least when blogging).
Here is what Ms. Malkin wrote:
Hypocrisy? Maybe you should provide some links to other righty critics to buttress that point. The current evidence you have presented suggests that we linked to you on the basis of the ability-to-pay argument.
Comment 3/23/2005
And back on the hypocrisy point - as you know doubt know (but don’t always emphasize in your post) the “right” is hardly monolithic on the right to die (or anything else). I have no doubt that some hardliners really ought to oppose both the Schiavo and Texas situations.
But plenty of others might very reasonably draw a line elsewhere, as earlier commenters have noted.
Seondly, why focus strictly on outcomes? Surely process counts too.
For example, suppose death penalty opponents advocate for a law that requires capital cases to examine new DNA evidence prior to any execution. Such a law will surely save some lives, yes? But if, after re-examination of DNA evidene, a particular convit’s guilt is simply reaffirmed and he is executed, are the death penalty oponents hypocrites for having supported that law?
Or, in the case at hand, just because Schiavo *probably* would be terminated under the Texas statute, it does not follow that Bush is a hypocrite - Texas provides a process developed in consultation with and endorsed by Texas right-to-life groups. One might well argue (Hey, I am!) that Texas provides a more transparent, accessible *process* even if many outcomes would be the same as in FLA. (as you know, the FLA system is basically what we have inherited/developed in response to various court rulings.
Oh, and I know you know that this, from your post, is a glaring over-simplification:
As we all know, it provided for Federal jurisdiction and review by federal courts. Care has, at this moment, *not* been continued.
Oh, FWIW - the solution stalled in the Florida State Senate - patients with no clear written instructions are defaulted to “choose life” - apalls me.
Comment 3/23/2005
Tom:
My apologies if I mistakenly criticized you for praising me for what I thought you were criticizing me for.
As for Kleiman, I don’t think he was “making things up.” The Houston Chronicle articles by Leigh Hopper heavily emphasized the financial angle (one was sub-headed “Decision hinges on patient’s ability to pay, prognosis”), and included quotes emphasizing the demand for payment from hospitals before they would accept the patients in transfer. That was clearly an issue in the Nikolouzos case, if not in the Hudson on. I think Hopper did a disservice by misleading people as to what is actually driving the decisions in these cases, and I am not surprised if others got that message. The main thrust of my first post was to emphasize that that issue was overblown. (”Doctors killing people for profit” was the “bad meme” I referenced in my title.) My criticism of Kleiman came only in the last paragraph, and was directed at his suggestion that general public funds could be used to pay for care in futile cases - a pathway that mostly isn’t available in our healthcare system - not at claims that treatment was being terminated for financial reasons. Those claims, as you note, are overblown, but I hold Hopper, not Kleiman, responsible for that.
As for Schiavo, she isn’t really a good instance of this sort of case. Her treatment is no doubt “futile,” but the futility statute is intended to allow caregivers to withdraw from a case when the patient or family insists on continued, hopeless treatment. In the Schiavo case neither the patient nor the caregivers are not the roadblock, it is ex-parte family members. Terri Schiavo’s own wish, according to testimony accepted by the court, is that she not be subjected to treatment under these conditions; the caregiver is willing to go along with that directive. So no question of futility arises - the responsible parties in this case already agree that treatment should be terminated. It is outside parties who are standing in the way.
Comment 3/23/2005
WOW ! very informative …and i like those pics of ur nephew , so cute !! can see that u put a lot of effort in it so KEEP IT UP!
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Comment 2/19/2007