The New "Natural Death Act:" Will It Afford A More Just Result?

By E. Dale Burrus, J.D., LL.M. Candidate

Texas Governor George W. Bush currently is considering whether to sign legislation passed by the Texas Legislature that amends the statutes governing advance directives. Through the Natural Death Act (the "Act"), a patient may execute a directive detailing a patient’s wishes concerning resuscitative efforts and life-sustaining measures in the event of life-threatening injury or illness. Shortcomings of the statute include physician confusion concerning the requirements for following a patient’s directive as well as the lack of recourse should a physician or health professional acting under the direction of a physician refuse to comply with a patient's wishes. In fact, the current statute grants a physician and the facility complete immunity if a patient’s directive is not followed.

Two cases illustrate the statute’s deficiency in allowing complete immunity to the health provider: Stolle v. Baylor College of Medicine and Miller v. Woman’s Hospital. The Stolle case involved a premature twin with irreversible brain damage. The parents complied with the Act by executing a written document requesting the withholding of all heroic measures. When the infant experienced a period of apnea, a nurse performed chest compressions, prolonging the child’s life. In a subsequent malpractice suit for failure to follow parental instruction, the hospital successfully defended against the action by pleading the Act’s immunity provision.

In Miller, parents, faced with a twenty-six week delivery, requested that no heroic measures be provided to the premature infant due to potentially severe and life-threatening complications. The parents did not execute a written document although the doctor entered a "no heroic measures" order into the patient’s medical record. The hospital disagreed with the parents’ decision and ordered the infant to be resuscitated. In a subsequent malpractice suit, the Millers obtained a $65 million verdict based on the theory of battery and absence of consent to treat the infant. While the hospital also raised the Act’s immunity defense, citing the Stolle case, the Miller trial judge ruled that the Act did not apply since the Millers had not formally executed a directive.

The new statute may resolve what appears to be an inequitable result. The amendment requires an ethics committee to review a provider’s conflict with the patient before administrative penalties can be applied and civil liability can be invoked. The patient or designated decision-maker may be present at the hearing and shall be provided with a written statement concerning the committee’s decision. If the decision-maker does not agree with the committee’s ruling, reasonable efforts should be made to transfer the patient to another physician or facility. It is only after these procedures are followed that a physician, health professional acting under the direction of the physician, or health care facility can claim immunity from civil liability, criminal prosecution or disciplinary action. Otherwise, all available state remedies apply to the actions taken by the health providers.

One concern raised by the two cases is the failure to execute a written document in accordance with the statute. The amendment encourages a written directive because only by creating a written document in accordance with the statute can a hospital or physician raise the immunity defense. Another concern raised by the cases and addressed by the statute is the necessary procedure to follow when a health provider disagrees with a patient’s desires. A physician or facility is no longer able to unilaterally refuse to follow a directive and then invoke a complete immunity defense. The statute requires the facility to have procedures in place to address a conflict and provides a minimum in developing the procedure. If the Governor signs the new amendment, the inequitable results of Miller and Stolle may no longer be actualized.

06/08/99