In Wash. Times op-ed, attorney says Palin's “death panel” claim is “dead-on” based on entirely unrelated Texas law

In an August 19 Washington Times op-ed, medical malpractice attorney Robert W. Painter pointed to the “unintended consequences” of Texas' 1999 Advanced Directives Act to argue that “for many states,” Sarah Palin's claim that a provision of the House health care reform bill “would result in 'death panels' ” is likely “dead-on.” However, the House provision -- which allows Medicare to cover voluntary counseling sessions in which patients can make decisions about their end-of-life care -- has nothing to do with the relevant part of the Texas statute, which establishes procedures for doctors to follow when refusing to provide patient-directed treatment (including life-sustaining treatment) they consider inappropriate.

Painter: "[B]ased on what has happened in Texas, Americans should heed" Palin's “warning” of “death panels”

From Painter's August 19 Washington Times op-ed:

The provision to which Mrs. Palin refers, Section 1233 of America's Affordable Health Choices Act of 2009, would allow Medicare to pay doctors to counsel or steer end-of-life decisions for a patient every five years or more often “if there is a significant change in the health condition of the individual” or an admission to a nursing home or long-term care facility. Both the White House and some members of Congress dispute Mrs. Palin's contention about how this language would play out, but based on what has happened in Texas, Americans should heed her warning.

One of the drawbacks of trying to overhaul an industry as large and sweeping as health care on the short schedule demanded by the president is that there is not time to study how the legislation would work in the context of existing state law.

The truth is, for many states, Mrs. Palin's assessment likely is dead-on, except the “death panels” would be hospital-run, not government-run. Consider Texas. The Texas Advance Directives Act of 1999 became law with support from a broad ideological spectrum, but one of its unintended consequences has been astounding. When a patient or family wants health care to continue but the attending physician does not, the Texas law allows a hospital committee to have the final say under the amorphous concept of “medical futility.”

Texas law only requires the hospital to provide the patient and family with 48 hours' notice before a hospital “ethics” committee meets and makes a decision on terminating life support. There are few due-process safeguards in the law to protect patients during this committee proceeding.

Once the hospital ethics committee decides that further care is medically futile, the family is given just 10 days to find a facility that will accept the patient, or the hospital and doctors can end curative care with impunity. Virginia law is similar but gives the family 14 days.

Furthermore, if the statute is followed, the hospital and others involved are cloaked with complete criminal, civil and licensing immunity. In other words, even if the hospital's decision to pull life support was incorrect, it is immune from lawsuit or prosecution. All this sounds quite like a “death panel” to me. Under Texas law, the hospitals are not just allowed to try to persuade a family to “pull the plug” but are allowed to take the action themselves and end all curative care if the family disagrees.

When patients and their families are battling a serious illness, they are in a vulnerable frame of mind. Some physicians and hospitals will try to step in during this emotional time and impose their will even when it goes against the patient's and family's decision and belief system. I have seen numerous Texas cases in which health care providers have tried to split families in an attempt to find someone to support the hospital's desire to end care. In the end, though, under Texas law, the hospital can go against the family's wishes if the family will not agree to end the life of their loved one.

The Texas experience should not be ignored in the face of proposed legislation that would nationalize a policy that further goes against individual rights. The proposal is to pay doctors to counsel patients on end-of-life decisions. In practice, those consultations likely would take place frequently, considering that it is left to the doctor to determine what a “significant change in the health condition” is. Further, imagine how worn out senior citizens might feel by the repetitive discussion each time they move between a nursing home, long-term care facility or hospital.

The end-of-life provisions of the Obama health care plan would upset the balance of power in health care decision-making in favor of doctors and hospitals and against individuals and families. The federal legislation provides an economic incentive for doctors and hospital administrators to use Medicare funds to start hastening certain patient deaths a bit sooner under existing state laws. In Texas, that balance already is tipped in favor of the health care providers, and the proposed federal legislation would only make matters worse by placing more Medicare dollars on that side of the scale.


Admittedly, the warning of “death panels” is a shocking claim. But when I inform people of the effect of the Texas law and how it has trampled on individual rights, they are understandably shocked. If the Texas Advance Directives Act has shown us anything, it is that governments should leave end-of-life decisions to patients and their families.

House provision allows Medicare to cover voluntary end-of-life counseling sessions

House provision calls for Medicare to cover voluntary end-of-life counseling sessions. As Painter noted in his op-ed, Section 1233 amends the Social Security Act to ensure that advance care planning will be covered if a patient requests it from a qualified care provider [America's Affordable Health Choices Act, Sec. 1233]. According to an analysis of the bill produced by the three relevant House committees, the section "[p]rovides coverage for consultation between enrollees and practitioners to discuss orders for life-sustaining treatment. Instructs CMS to modify 'Medicare & You' handbook to incorporate information on end-of-life planning resources and to incorporate measures on advance care planning into the physician's quality reporting initiative." [, accessed 8/13/09]

Relevant part of 1999 Texas statute establishes procedures for doctors to follow in refusing to provide patient-directed care

Section of Texas statute establishes procedures to follow when “an attending physician refuses to honor a patient's advance directive.” From the enrolled text of the legislation:

Sec. 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE. (a) If an attending physician refuses to honor a patient's advance directive or a treatment decision under Section 166.039, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.

(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:

(1) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement; and

(2) is entitled to:

(A) attend the meeting; and

(B) receive a written explanation of the decision reached during the review process.

(c) The written explanation required by Subsection (b)(2)(B) must be included in the patient's medical record.

(d) If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process under Subsection (b), the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive. If the patient is a patient in a health care facility, the facility's personnel shall assist the physician in arranging the patient's transfer to:

(1) another physician;

(2) an alternative care setting within that facility; or

(3) another facility.

(e) If the patient is requesting life-sustaining treatment that the attending physician and the review process have decided is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g).

(f) Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired.

(g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.

(h) This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency. This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.

[Text of Enrolled S.B. 1260]

Baylor University Medical Center physician: Advanced Directives Act lays out process for doctors to reject providing care they consider inappropriate. “Advance directives in Texas clearly recognize that patients may use a directive to reject or request treatment in the face of terminal or irreversible illness. Surrogates acting on behalf of incompetent patients may do the same. However, not all requests are necessarily granted. If there is a request for treatment that the treatment team feels is medically futile, an ethics consultation may be requested. Under the new law [the 1999 Texas Advanced Directives Act], the following process must occur if the treatment team and institution wish to take full advantage of the provisions of the law creating a legal safe harbor for them.” [“Medical futility and the Texas Advance Directives Act of 1999,” Baylor University Medical Center Proceedings, April 2000]