Anatomy of a Spin: Unraveling the SB 303 Saga as ´reported´ by Texas Tribune

Reporter Becca Aaronson’s article was published on 5/17/2013.

Texas Tribune: Political powerhouse Texas Right to Life is working overtime to try to defeat a compromise measure aimed at improving state laws governing “end of life” medical decisions.  But with time running out to get Senate Bill 303 passed, the fight over the legislation has shifted from political to personal.

TX RTL replies: Regrettably, Ms. Aaronson fails to address the glaring abrogation of patient’s rights in this unfortunate SB 303 saga while trying to make a story around the gossip and ignoring the substance.

No compromise among the crafters of SB 303 was necessary; SB 303 was crafted ONLY by organizations that agree on granting more power to hospital panels to withdraw medical treatment from patients against their wishes.  Not all patients who are victims of current law are at the end of their lives so classifying such situations as “end of life medical decisions” is misleading….unless, of course, these decisions do cause the end of life of the patient.

Texas Tribune: Sen. Bob Deuell, R-Greenville, a family physician who has worked for years to craft legislation acceptable to faith-based groups, the disability community and medical professionals, said Texas Right to Life is acting like “the woman that went to Solomon and wanted the baby to be cut in two.” “Rather than have something that’s better,” he added, “they want nothing at all.”

TX RTL replies:  Texas Right to Life embraces and abides by incremental approaches in all our Pro-Life efforts, evidenced by our legislative approach to protecting the unborn.  Because we have firsthand knowledge and experience in transferring patients and assisting families and surrogates, we would welcome something, anything, that is better than current law, but SB 303 is replete with setbacks and questionable provisions.  Extending the transfer time to 21 days marks a step in the right direction, but the other sections in SB 303 are so broad and subjective that the bill offers no real improvements or patient protections.  This opinion is shared by multiple independent legal and medical organizations and advocacy organizations that have contacted Texas Right to Life to lend support.

Texas Right to Life and National Right to Life worked with Senator Deuell up to and during the first part of the 2007 Legislative Session, and he carried legislation that mirrored what 11 other states have already enacted.  At some point in that 2007 session, the bill changed without our input, and we were forced to oppose the new version, angering the Senate sponsor (not to mention the unenviable position into which Texas Right to Life was forced when the own bill was held hostage for reasons unknown to us).  Forced into negotiations on the bill, a piecemeal version of CSSB 439 was redrafted that was quite problematic, but to which we acquiesced as long as no other changes were made.

Minutes after an agreement, lobbyists for the TMA and THA double-crossed the Lieutenant Governor and all involved in the difficult negotiations, broke the deal on this latest agreed-upon version, and secured more changes from one of their agents in a House committee.  Again, Texas Right to Life was forced to oppose the bill … and again angering the Senate sponsor who had stopped working with us months prior.

Texas Tribune: Elizabeth Graham, the group's director, accused supporters of the bill of “engaging in dirty politics to discredit the opposition.”  “It’s a distraction from whether or not the bill protects the lives of patients,” she said, “and our assessment is that the bill doesn't.”

TX RTL responds: We are saddened that some of the supporters of SB 303 have personally attacked the integrity of our organization and the officers of the organization.  Vituperative letters and emails with no basis in fact were distributed, and these communiqués did not include defenses or explanations of the provisions in SB 303, but rather were venomous ad hominem attacks on those opposed to SB 303.

Friends and allies who were pressured to support SB 303 shared with us that the supporters of SB 303, including lobbyists for religious leaders, have maligned Texas Right to Life, stooping so low as to criticize our sartorial manners, footwear selections, and the structure of Texas Right to Life’s board—about which they would know nothing.  While we admit our own failings, our public discourse has focused on the shortfalls of SB 303 and not its supporters, but we are befuddled by the calumnies spewed at Texas Right to Life and our dedicated employees.

Texas Tribune: The legislation, which the Senate approved in April, was left pending in the House Public Health Committee on Monday after more than six hours of testimony.  Supporters of SB 303 include the state's other leading right-to-life group, the Texas Alliance for Life, as well as the Texas Medical Association, the Coalition of Texans with Disabilities, Texas Catholic Conference of Bishops, the Christian Life Commission and the Catholic Health Association of Texas.  Among the opponents: the conservative Texas Eagle Forum, the American Life League and ADAPT of Texas, a grassroots advocacy group for disability rights.

TX RTL replies: The diversity of the witnesses for and against further elucidates that the bill includes many shortfalls.  An overwhelming 113 registered opposition with 47 verbally testifying against.  Only 23 registered in favor of the bill with 13 offering supportive testimony.  Worth noting is that even the ACLU of Texas opposed SB 303.

Texas Tribune: State Rep. Lois Kolkhorst, the Brenham Republican who chairs that committee, said on Thursday that she doesn't expect the bill to make it to the House floor, despite hard-fought efforts by the bill's House sponsor, state Rep. Susan King, R-Abilene, to craft a substitute amenable to the warring factions.

“There are times when a chairman has to make a tough call,” Kolkhorst said. “It's a very fragile bill.”

TX RTL replies: The last version of the bill offered on May 15th after the hearing took the transfer time back to 10 days and neither addressed the concerns about the unwanted DNAR (Do-Not-Attempt-Resuscitation) Orders nor closed the loopholes on the hospital panel using the subjective criteria to withdraw nutrition and hydration.  We appreciate Chairwoman Kolkhorst recognizing that reform to current law must include all the stakeholders as well as real protection for patients—a decision that she did not make lightly while under enormous pressure.

The compromise was just one more bill concocted by all the agents of big medicine repackaging their legislative goals without the input from even one of the major Pro-Life, Pro-Family, or anti-euthanasia organizations that opposed them from the outset.

Texas Tribune: Texas law currently allows physicians to discontinue treatment they deem medically futile.  If a physician’s decision to end treatment contradicts the patient’s advance directive or the judgment of the patient’s surrogates, patients or their families have 10 days to find an alternate provider and appeal the physician’s decision to a hospital ethics committee.

TX RTL replies: There is neither an appeal under current law, nor was an independent appeal process offered in SB 303.  The hospital ethics committee serves as the self-governing decision making entity over the lives of patients.  If a family petitions a judge, that petition is only for more time to transfer, not to examine the futility judgment.

Texas Tribune: SB 303 sets up a longer process — 28 days — during which time the physician would be obligated to continue treatment.  The bill would require medical facilities to provide the patient or surrogate with medical records and a liaison to guide them through the review process.  It would also allow patients to have up to five representatives at the medical ethics committee hearing.  The measure also forces health care professionals to notify patients and their families before putting a “do not attempt resuscitation” order on anyone.

TX RTL replies: While the patient liaison may seem a helpful tool, that liaison is another employee of the facility moving to withdraw treatment.  Limiting the number of family advocates to attend the hospital panel meeting heightens the inequality of an already imbalanced process.  Despite notice to families of the meeting, many are unaware of the contentious situation into which they are entering—often with a dozen or more white coats already seated in ominous boardroom setting.  The number of people who can accompany the patient/family/surrogate at the meeting with the ethics committee is limited, whereas there is no limit to the number of people who can serve on the committee for the hospital and represent the hospital’s point of view.

At first glance, SB 303 appears to require notice of the DNAR; however, that requirement is waived if the subjective criteria in the bill are used as reason(s) not to notify the patient or surrogate.  For just one example of the loophole(s) in DNAR notification, “if based on reasonable medical judgment, resuscitation would be medically ineffective,” notice is NOT required if the very people who are ordering the DNAR in the first place decide that resuscitation would be medically ineffective, but that term is undefined.  Another loophole allows hospitals to decide that imminent death is better than resuscitative efforts.  Technically under SB 303, a 28-day reprieve from the unwanted DNAR is granted, but the hospital panel can in fact re-impose that unwanted DNAR after 28 days.

Texas Tribune: In emails sent to supporters, Graham has argued that the measure would “strengthen Texas' death panels,” “give even more power to hospitals” and allow doctors to issue “do not attempt resuscitation” orders “even against your protest!”

TX RTL replies: We were attacked for using the term “death panel,” but we don’t know what else to call a committee that decides when and under what terms a patient dies.  “Ethics committee” is a euphemistic legal term, which we hardly find appropriate to describe a body empowered to make unethical lethal decisions with impunity.

Texas Tribune: Deuell, who has grown increasingly impatient with this messaging, alleges that Texas Right to Life is spreading misinformation about his bill.  He said the opposition from the group — and Graham in particular — is personal; he thinks it's sour grapes because he went to National Right to Life to complain about her.

TX RTL replies: National Right to Life stands by Texas Right to Life’s policies and officers and considers the Texas Advance Directive Law to be the worst, most unjust usurpation of patients’ rights in the nation, an imbalance that would have only been exacerbated by SB 303, not ameliorated.  In fact, National Right to Life promotes the officers of Texas Right to Life as national speakers on medical futility and other Pro-Life issues.

Texas Tribune: “I don’t want to turn this into a me vs. her thing, but I think that’s part of the opposition,” he said. Deuell isn't the only one who has raised concerns about the group.  When similar end-of-life reform legislation was under discussion during the 2007 session, Texas Right to Life requested public tax information on hospitals that were backing the bill.  State Rep. John Zerwas, R-Simonton and an anesthesiologist, says the organization circulated information about his salary at Memorial Hermann Health System to some House members “as a reason that I would want to see these futile cases terminated, to support the cost savings that we would realize by further facilitating that.”

TX RTL replies: Information circulated in 2007 included the IRS 990 forms of the hospitals that frequently invoke the statutory process to withdraw treatment—based on the calls for help to Texas Right to Life.  No personal financial information was or ever has been circulated about any legislator by Texas Right to Life.

Texas Tribune: “My relationship with Texas Right to Life has been strained, and it’s directly related to Elizabeth Graham and her style of politics,” Zerwas said.

TX RTL replies: Texas Right to Life is proud and honored to work alongside and to have built friendships with a majority of State Senators and State Representatives of both parties, who would have gladly aired their concerns about SB 303 to Ms. Aaronson.

Texas Right to Life does hold candidates and officials accountable to campaign promises; thus, the “style of politics” and “sour grapes” refer to the discontinued support for incumbents who no longer represent Texas Right to Life’s goals in the Legislature.

If, after winning, a candidate breaks campaign promises on key issues, that candidate is no longer eligible for endorsement by Texas Right to Life PAC (such as all those who voted for SB 303 and who have co-authored HB 1444).  Such broken campaign promises jeopardize the lives of real people, inspiring Texas Right to Life PAC to enthusiastically support challengers who better represent our mission and goals as an elected official.

Many candidates report that earning the endorsement of Texas Right to Life PAC is quite an achievement because of our rigorous standards—standards that require a minimum of one personal meeting with the candidate and our board, affording a thorough vetting of issues—including but not limited to policies on caring for those with disabilities and denial of treatment issues.  If a candidate meets our criteria, our PAC fully supports and engages in helping that candidate achieve victory.

Texas Tribune: [Zerwas continues:]  “She concocts stories out of things that are not real, publishes them and then tries to get people to donate to her cause by creating a false crisis.”

Graham said there's absolutely no misinformation on her end: “Big medicine and hospitals victimize patients so frequently that we don’t ever need to make stories up,” she said.

TX RTL replies: We wish that the disabled and dying were not victimized by hospital committees that have decided by their own subjective standards that the lives of these patients have little or no value and should therefore be denied medical treatment.  The details are incredulous, and we, ourselves, have been stunned to personally see and hear the conversations in these so-called ethics committee meetings.  If our own accounts of patient horror stories are not convincing, listening to the families who have shared their sagas courageously in legislative committee hearings should demonstrate the imbalance of power in the current law.

As far as fundraising in a crisis, Texas Right to Life never charges the families directly or indirectly [Some have scurrilously alleged that we charge consulting fees!?!?] for guiding them through the futility review process or for helping them secure a patient transfer.  All this effort is supported through our family assistance programs, which is part of our general operating budget funded by gifts from our statewide membership.  Since the 10-day clock is ticking when families frantically call Texas Right to Life for help, we hardly have time to concoct a manipulative fundraising scheme when a patient’s life hangs in the balance.  Seriously!  And we will continue to help any patient or family who seeks our help regardless of the cost or inconvenience to Texas Right to Life.

When we do eventually share a patient success story or a transfer victory or even a loss, our activists and membership want to help spare themselves and their loved ones from future futility judgments and nightmares.  Many respond with their own story and want to become involved in advocating for reform.

Texas Tribune: She said Deuell attempted to have her thrown out of Texas Right to Life, calling it “laughable.” And she said there was no personal information about Zerwas distributed by Texas Right to Life. “Any information that was circulated was about facilities,” she said, adding that she believes there may be “conflicts of interest” if hospital executives and administrators advocate for cost-cutting policies that curb patient care.

TX RTL replies: On 8/28/2011, the Dallas Morning News published the salaries of the top hospital executives.  In the House Public Health Committee hearing on SB 303, an attorney who helps patients on a pro bono basis drew attention to these figures as a potential conflict of interest.

Texas Tribune: Texas Right to Life's work against SB 303 has been dogged; the group sent a letter to state legislators in April signed by 17 people opposed to the bill, most of whom represented organizations that identify as “pro life.” Among them: Dr. Steve Hotze, a major Republican campaign donor, radio host and alternative medicine physician, and Bobby Schindler, executive director of the Terri Schiavo Life and Hope Network.

What Texas Right to Life wants is “transfer to treatment” [sic]legislation to require physicians and hospitals to continue treatment until they can find another willing provider.  Bills to do just that never moved out of committee.

TX RTL replies:  Dr. Deuell carried this measure in 2007; he acknowledged then that treatment-pending-transfer was the most effective way to balance the patient and provider interests and to foster physician-family collaboration.  The bills haven’t moved out of committee because a handful of committee chairs and legislators prioritize ties to big medicine (Texas Medical Association and Texas Hospital Association) over the protection of life.  TMA and THA consistently oppose Pro-Life legislation (on public record) and appear desperate to maintain some influence over an ever-increasing-conservative legislative body that disdains their obsession with bottom line cost-cutting policies at the expense of patients.

Texas Tribune: Deuell says that if Kolkhorst lets his bill out of committee, he believes it has the votes to pass the House, though he worries that “there are still people that find it difficult to get that bad mark from Texas Right to Life.”

TX RTL replies: As soon as SB 303 was filed, a majority of House members brought their concerns about SB 303 and later HB 1444 to Texas Right to Life due to our well-known patient advocacy and our discussion of these very issues during PAC interviews.  When the concerns of these legislators were not addressed in any of the revised versions of SB 303, legislators voiced their opposition to House leadership, to Chairwoman Kolkhorst, and to Representative King.  Some of them even testified against the bill in the House Public Health hearing, a very rare occurrence that denoted the gravity of the situation.  These legislators required no coaching from Texas Right to Life; they can identify loopholes by themselves, and like the general public, many of them had their own personal stories of a friend or loved one falling victim to futilitarian policies.

The mythical “bad mark from Texas Right to Life” again only manifests when campaign promises to protect the sanctity of innocent human life at all stages are broken.

Texas Tribune: Zerwas said he supports the bill because sometimes it is in the best interest of the patient to discontinue medically futile care that prolongs pain or suffering.  “There is only so much that we can do with the technology and the advancements in pharmaceuticals,” he said.

TX RTL replies: We agree that some treatments do stop achieving the intended goal of that specific treatment, such as dialysis no longer filtering uric acid from the blood.  When a treatment or therapy is in fact medically futile, no physician would ever continue that, and a properly informed patient or his surrogate would not want to continue futile or harmful treatment, and nothing in current law or in any of Texas Right to Life’s past or present proposals would require the continuation of such medically futile treatment.  Physicians would not continue medically futile treatment anyway.  

Conflicts arise when the futility judgments are transferred from the efficacy of a medical treatment to a value judgment on the futility of the patient’s life.

Texas Tribune: But John Seago, the legislative director for Texas Right to Life, said that if SB 303 became law, it would solidify a process that would put “the family at a disadvantage — even more than the current law.”

TX RTL replies:  Regrettably, Ms. Aaronson didn’t mention that the patient has 0% control under SB 303 whereas the physicians, hospital, and ethics committee have 100 % control over the decision to withdraw lifesaving care for a patient.  

This is why Texas Right to Life worked overtime to successfully defeat SB 303, a bill that would have further endangered the lives of hospitalized patients and been a national setback for patents' rights.