Tarrant County Beware: Hospitals Fight to Pull Plug on Patients Against their Will

Hospitals in Tarrant County are fighting tooth and nail to unplug patients from life-sustaining treatment against the patient or their family’s wishes. With two separate cases moving through state and federal court, Tarrant County is ground zero in Texas’s war on euthanasia. Both cases involve a section of the Texas Advance Directives Act called the “10-Day Rule,” and both defendants are Tarrant County hospitals.

A portion of Texas law – Chapter 166.046 of the Texas Health and Safety Code – grants authority to a physician, with the approval of a hospital ethics committee, to unilaterally remove life-sustaining care – such as a ventilator or dialysis – from a patient over the patient or their medical power of attorney’s objection. Most people don’t know this is legal until this law attacks their own family.

If you have followed the public policy debate on Texas’s 10-Day Rule, you probably know the most high profile case to date: Cook Children’s Hospital v. Tinslee Lewis. In October 2019, Cook Children’s sought to take away then 9-month-old Tinslee Lewis’s ventilator. When Tinslee’s mother refused to hasten her child’s death, Dr. Jay Duncan, a physician at Cook Children’s, used the authority given to him by the Texas 10-Day Rule. Despite Tinslee’s mother’s refusal, the hospital scheduled Tinslee to be removed from the ventilator in November 2019. On the last day of the deadly countdown, attorneys for Tinslee’s mother secured a temporary restraining order preventing the hospital from ending Tinslee’s life. 

Eighteen months and a trip to the Supreme Court of the United States later, Tinslee’s mother continues to be victorious in her fight to prevent Cook Children’s from, in the words of the Fort Worth Second Court of Appeals, “passively euthanizing” her child. 

The second Tarrant County case that most may not be aware of is De Paz Gonzalez vs. John Peter Smith Hospital (JPS). The DePaz case involves parents who sued JPS over actions taken by a hospital physician, Dr. Therese Duane, against their son in March 2018. The DePaz’s son, Berman, was admitted to JPS with a head injury. According to Berman’s parents, a representative from JPS discussed with the family next steps in taking Berman home and caring for him. Armed with that knowledge, most of the family went home that night, leaving Berman’s father alone in his son’s hospital room. In the middle of the night, Dr. Duane walked in with other staff and informed Berman’s father that they were going to unplug Berman’s ventilator. Chaos ensued, and Berman’s father watched helplessly as the JPS medical team unplugged his son’s life-sustaining treatment, causing Berman’s death.

Key Factual and Legal Differences 

  • Tinslee Lewis is still living; Berman DePaz is deceased. 

In legal terms, the party bringing a lawsuit must prove they have the right to sue. As Tinslee is a minor and still living, her mother has the undisputed right to sue on her behalf. In Berman DePaz’s case, both sides are arguing procedurally about whether his parents, as parents of a deceased adult, have the authority to sue on his behalf. 

  • Cook Children’s Hospital is a private hospital, while JPS is a county (government) hospital. 

An individual’s right to due process is only protected from government intrusion. Before finding that an entity, like a hospital, has a duty to protect the civil rights of an individual, such as a patient, that entity must first be considered a state (government) actor. JPS is a county hospital, and so of course, JPS is a state actor. In regard to Cook Children’s, the plaintiffs argued and the Second Court of Appeals agreed, that when exercising the 10-day process, the hospital is a state actor for two reasons: 1) Only the government has the exclusive authority to determine what is and is not a lawful means of dying; and 2) the hospital is stepping in place of a minor’s parents in making such a decision to withdraw life-sustaining treatment without going through any process themselves that bestows parental authority upon the hospital.

  • Tinslee’s challenge against Cook Children’s is a direct constitutional attack on the 10-Day Rule. Tinslee’s mother argues that the process outlined in the 10-Day Rule does not provide sufficient due process. Thus, Tinslee’s attorneys argue that even when a hospital complies perfectly with the statute, the statute is inherently flawed: the hospital will always violate a patient’s constitutional rights. In contrast, the DePaz case argues that at a minimum, Berman was entitled to at least the process outlined in the 10-Day Rule. While the DePaz attorneys do note that the statute may violate constitutional due process entirely, they argue JPS did not have the authority to unplug him without at least going through the 10-Day Rule. 

What is interesting to note, and of which all citizens of Tarrant County should take note, is that both hospitals argue that even in the absence of the 10-Day Rule, hospitals and physicians still have the authority to remove life-sustaining treatment against a patient’s instructions. When pressed in legal briefs and oral arguments, both hospitals have been unable to cite any source of authority granting them such power. Nevertheless, the hospitals press on with that argument. In the words of William Taylor, counsel to the DePaz family, “Fortunately, for the citizens of Tarrant County, the Defendant – Appellees’ arguments are contrary to the plain language of the statute and Texas cases.”



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