Thursday, October 27, 2016

Chris Dunn Case Update

As I've written in the past, Chris Dunn may have passed away, but his case continues on as a challenge to the Constitutionality of the Texas Advance Directives Act ("TADA"), also referred to as Texas' "futile care law." I have hoped and prayed that his case would bring visibility to this little known, almost hidden, but appalling and often-used, law to the masses. More than that, his case may very well result in a ruling that this law is unconstitutional. It is the first such challenge to it. 

On that front, I have an important update for you. Tomorrow there is a hearing concerning the case still pending in Harris County. Chris' mother, Evelyn Kelly, has been substituted in as the plaintiff in the case, and is proceeding on her own behalf and on behalf of Chris' estate, so the case is now referred to as Kelly v. Houston Methodist Hospital.

The hearing is on Defendant's (the Hospital's) Motion to Dismiss (its second or third such motion) and Plaintiff's (Ms. Kelly's) Motion for Summary Judgment ("MSJ"), which I think is a bold move on their part. These are both case dispositive motions. I am only going to address Plaintiff's MSJ here because it is more interesting to me and more about TADA. A MSJ is most often filed by a Defendant seeking to have a case dismissed. The burden is higher on the movant in such a motion. 

A MSJ determines legal issues and whether there are any "genuine issues of material fact" which might need to go to a  fact-finder (either a judge or jury) to determine the case. A judge cannot determine ultimate matters of fact. He can only determine whether there is a genuine issue of material fact - basically finding that there are facts upon which reasonable minds might disagree. In that event, those issues would be submitted to a fact-finder. A judge may not make credibility determinations. All inferences must be made in favor of the non-movant. Questions of law, however, are determined by the judge. Most of the time, a Defendant files such a motion and claims the Plaintiff has no case. Once in a while, a Plaintiff will file such a motion, which is what has been done here.

As you might expect if you've read anything about the law and anything I or anyone else has ever written about the problems with TADA, the lack of due process is central to the challenge. Ms. Kelly is arguing that the law is unconstitutional because it lacks both procedural and substantive due process. These are all questions of law for the judge to decide. Let's go through her arguments one by one so you have a better understanding of what's at stake here. 

Plaintiff's MSJ begins with the argument that Texas Health & Safety Code Sec. 166.046 violates procedural due process.  "Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation, of life, liberty, or property." Plaintiff's MSJ at p. 2 citing County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007) (citing Carey v. Piphus, 435 U.S. 247, 249 (1978). (As always, you can pull the pleadings yourself on the Harris County website. The Cause No. is 2015-69681.)

Plaintiff notes that the state has delegated this decision-making authority to hospital systems in Texas, so Methodist was acting under color of state law. As a result, it is incumbent on the state to temper the risk of erroneous deprivation of rights. There is no protection given to patients under this law to protect them from a mistaken or unjustified deprivation of these rights. 

Plaintiff argues that "[b]efore life, liberty, or property is deprived, procedural due process requires a fair and impartial trial before a competent tribunal." Plaintiff's MSJ at 2. There are three protections required to achieve a fair and impartial trial:
  1. An opportunity to be heard;
  2. A reasonable opportunity to prepare for the hearing; and
  3. Reasonable notice of the claim or charge against an individual so as to advise him or her of the nature of the charge and relief sought.
Plaintiff's MSJ at 2 citing In re. R.M.T., 352 S.W.3d 12 (Tex. App.--Texarkana 2011); Pickett v. Texas Mutual Ins. Co., 239 S.W.3d 826 (Tex. App.--Austin 2007). 

All three protections must be met and then there must be an impartial tribunal. 

Now, it should be easy to any reasonably prudent person to see how this is an absolute requirement for any criminal or civil case. One can easily see why this these safeguards are necessary for basic fairness and justice. Now, contemplate the unfairness and injustice that results - and has resulted - because these safeguards are no where to be found in the Texas law that allows hospitals to kill a patient against their will. Contemplate that there are pro-life organizations and religious organizations that support his law and justify its usage. Contemplate that the Texas Medical Association supports this law - lobbied for it - and opposes any meaningful reform that would make it either more pro-life or comport with basic due process requirements. Contemplate that the TMA is the wealthiest lobbying group in Texas and has tremendous support in the legislature. Are you beginning to see the series of problems here? From morality to politics to basic civil rights to life and death. 

Continuing the analysis of Plaintiff's MSJ, they argue that there is no opportunity to be heard under the law, which is the first safeguard required for due process. The law does allow the patient or his surrogate to attend the hearing and they are entitled to his medical records, however, "the statute does not entitle the patient or surrogate decision-maker to address the committee, to offer evidence, or to utilize counsel." Plaintiff's MSJ at 3 citing Tex. Health & Safety Code Ann. Sec. 166.046(b)(4). (Emphasis mine.) Plaintiff's brief notes that whether a patient or surrogate can address the committee is left to the institution. There are no guarantees. 

Friends, I have attended such a hearing. Even as an attorney, I was mostly a passive bystander merely watching the rubber stamping of the decision to terminate a life early and against his family's wishes. I have written about that experience here. When I spoke recently at the Healthcare in Crisis conference, I noted that from my perspective, this law has more than one aspect of futility. There is also the futility of having legal counsel. We can't really do anything! This is directly because there is no due process in the statute. And, I'm here to tell you, that was not an accident or oversight, my friends. 

Plaintiff next addresses the lack of reasonable opportunity to prepare for a hearing in the law. Plaintiff's MSJ at 4. Plaintiff notes, "Due process of law ordinarily includes: (a) hearing before condemnation; (b) accordance of reasonable opportunity to prepare for the hearing. Mandate of reasonableness of opportunity may not be mere formal observance by judicial action." Id. citing Ex parte Davis, 344 S.W.2d 153, 157 (Tex. 1961) (citing Ex parte Hejda, 13 S.W.2d 57, 58 (Tex. Comm'n App. 1929). Plaintiff cites case law that states very clearly that notice must be sufficiently in advance of the proceedings so the preparations may be made. But in this statute, "a hospital is required to merely provide 48-hours' notice to a patient or their surrogate decision-maker." Id.(Emphasis mine.)

It should be patently obvious that one cannot respond adequately and sufficiently with such little notice - even were you afforded that opportunity (and you are not). Moreover, Ms. Kelly's brief notes that patients and their surrogates are not given any idea as to how to prepare for such an "ethics committee hearing." There are no guidelines, criteria, or any idea given as to how the committee makes its decisions. Therefore, the patient or surrogate has no idea how to respond. 

Third, Plaintiff argues that the patient or surrogate is not given reasonable notice of the claim against him. Id. at 5. Any person facing the deprivation of life, liberty, or property must be given notice of the claim against him so as to defend himself. Id. But TADA "does not require the patient to be apprised of why an ethics committee seeks to withdraw life-sustaining treatment under the statute. Instead, Section 166.046 lacks any criteria or benchmarks for which patients are susceptible to the Section 166.046 process, and thus does not provide a patient with such information prior to a deprivation." Id. (Emphasis mine.)

My experience is that patients or their surrogate are given a notice like Chris Dunn and Ms. Kelly were and that's that. It's boilerplate, non-specific language. It does not tell you why this withdrawal of life-sustaining care is no longer appropriate in their opinion. In this post, I provided the full letter Chris was given on November 13, 2015. It is pretty standard. How can you respond to that even were you given an opportunity to be heard and present evidence? You have no idea what that means, you have only 48 hours. If the person were a criminal rather than a patient, there would be no shortage of people clamoring for reform and change. Why is the ill person treated as lesser than a criminal? I have never received an answer to that question from any TADA supporter. That's telling. 

Ms. Kelly then addresses the lack of impartial tribunal. Plaintiff's MSJ at 5-6. The argument is that the "ethics committee" is made up of members of the hospital staff, employed by the treating hospital, the very entity that wants to withdraw care. This care can be very expensive. The conflict of interest in inherent and obvious. As Plaintiff notes, "The objectivity and impartiality essential to due process are nonexistent in such a hearing. Section 166.046 provides no mechanism whereby guaranteeing a patient's case will be heard and decided by an impartial tribunal, and as such, fails to comport with adequate due process requirements." Id. at 6. (Emphasis mine.) 

Next, Ms. Kelly's MSJ addresses the violation of substantive due process by Sec. 166.046. "Therefore, a substantive due process violation occurs when the government deprives individuals of constitutionally protected rights by an arbitrary use of its power." Id. at 6-7 citing Byers v. Patterson, 219 S.W.3d 514, 525 (Tex. App.--Tyler 2007, no pet.) (citing Simi Inv. Co. v. Harris Co., 236 F.3d 240, 249 (5th Cir. 2000). 

In support of this argument, Ms. Kelly argues that a competent individual has a substantive privacy right to make his own medical decisions. Id. at 7. The case of Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 269 (1990) is cited for its proposition that "It cannot be disputed that the Due Process Clause protests an interest in life." Plaintiff notes that "This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment." Id. The Cruzan Court "noted that the Constitution requires that the State not allow anyone 'but the patient' to make decisions regarding the cessation of life-sustaining treatment." Id. citing Cruzan at 286. The Supreme Court also held that the state could require a "clear and convincing evidence" standard to prove the patient's wishes. Id. citing Cruzan at 280. 

Now, just be be clear - the Supreme Court was holding that a state that would allow a patient to decide to withdraw her own life-sustaining treatment could require that it be proved by clear and convincing evidence. Here, in Texas, there is no evidentiary standard required to be met by the hospital deciding to withdraw care against a patient's or surrogate's wishes. Rather, as Plaintiff's brief points out, "An attending physician and hospital ethics committee are given complete autonomy in rendering a decision that further medical treatment is 'inappropriate' for a person with an irreversible or terminal condition. This is an alarming delegation of power by the state law. A final decision rendered behind closed doors, without an opportunity to challenge the evidence or present testimony or contrary evidence is a far cry from the due process intended to protect the first liberty mentioned in Article I, Section 19 of the Texas Constitution and that of the Fourteenth Amendment." Id. at 7. (Emphasis mine.)

Continuing Plaintiff's argument, Ms. Kelly argues that "The State of Texas does not own the decision, and thus lacks the authority, to end a patient's life by taking away life-sustaining treatment. As such, the State of Texas does not have any authority to delegate such a decision to any actor, private or public." Id. at 8. This is an excellent point! You cannot delegate what you do not have. And yet, that is exactly what has been done here.

Next, Ms. Kelly argues that the patient's situation is different from a convicted felon facing the death penalty in that through Sec. 166.046, "the State of Texas [TEXAS!] has created a scheme whereby patients in Texas hospitals have their life extinguished, being found guilty of nothing except that of being ill. The State of Texas simply does not have the authority to sentence ill people to premature death." Id. (Emphasis mine.)

Then Ms. Kelly finishes this section by stating that hospitals are acting under color of state law when they act under Sec. 166.046. Id. at 8. The argument is that hospitals acting under this statute are exercising power they would not otherwise have but for this law and that they are exercising "statutory authority evocative of a government function" in that they give only two days' notice, held a hearing regarding terminating Mr. Dunn's life-sustaining treatment, made a determination that his request to continue life-sustaining treatment would be denied, determined that his life-sustaining treatment would be removed, and gave written notice that his life-sustaining treatment would be removed on or about November 24, 2015, which it was allowed to do under TADA. Id. at 8-9. A number of examples are then given where private entities have been held to act under color of state law for performing traditionally government functions or heavily regulated government functions. Since the hospital was acting under color of state law, the first element to a Section 1983 claim (a claim for deprivation of civil rights) is met.

Finally, Ms. Kelly addresses the fact that the death of Chris Dunn does not render the case moot. Id. at 11-12. Normally, cases cannot be heard if they are moot. Courts are not generally in the business of rendering "advisory" or "hypothetical" opinions. Usually, the controversy has to be ongoing. However, exceptions have been made federally (ironically, this is one reason the USSC found to justify imposing Roe v. Wade on the nation) and in Texas. 

Ms. Kelly noted: "The Texas Supreme Court has recognized two exceptions to the mootness doctrine:   (1) the capability of repetition yet evading review exception, and (2) the collateral consequences exception." Id. at 11 citing State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980). The first exception is what it sounds like, cases will be considered where they are repeated but the act being challenged is of such a short duration that it ends before a court can review the matter, at which time it would be moot. That is the situation here and Plaintiff's MSJ cites case law holding that in some cases, even the death of the affected individual does not moot the challenge. Ms. Kelly notes that Sec. 166.046 is designed for repetition. It is utilized repeatedly. Also, Ms. Kelly notes that this statute is designed to evade review. Even in a case where a lawsuit might be filed, 20 days are given to the responding party, but such time life-sustaining treatment would be withdrawn. Of course, not mentioned here, is the fact that there is no statutory provision allowing for judicial review of the ethics committee's decision. This case is unique because it is challenging the constitutionality of the law as a whole.

This was an excellent brief. Of course, the Defendant/Hospital filed a response that consists of these points:
  1. The constitutionality of Sec. 166.046 is an issue more appropriately addressed by the Texas legislature; 
  2. They are not a state actor; and
  3.  This cause of action is moot because the controversy is not capable of repetition.
I'm only going to briefly address them. You can pull the pleading yourself at the link I provided above.

First, the Hospital claims that it takes no position on the constitutionality of the statute as this is, according to it, an issue more appropriately determined by the Legislature. That is an interesting argument. Courts actually determine the Constitutionality of statutes, not Legislatures. It is also interesting that the Hospital - though willing to utilize this draconian statute - chooses not to defend it. Also telling. Finally, given the TMA and the Texas Hospital Association's lobbying arms, I'm sure that Defendant would prefer that this matter remain in the Legislature. But it is in Court now and I pray that the Constitution is upheld.

Second, with regard to the Hospital's state actor status, it reiterates that it is not taking a position on the Constitutionality of the statute. It claims that it cannot be sued in the capacity Plaintiff has sued them.

Third, the mootness issue is an interesting response. They argue that since Chris Dunn is now deceased, the issues raised are moot because the act complained of is not capable of being repeated - on Chris Dunn. Do you follow that? How convenient. But that is not what the law holds.

Again, you can read more of what they write buy pulling their pleading.

What has transpired most recently is that the State of Texas has decided NOT to litigate on behalf of the law, but agrees that it is unconstitutional. Wesley J. Smith, a stalwart opponent of TADA, has also written about the case and has praised Texas' Attorney General, Ken Paxton, for stepping in and filing what is called an amicus curiae brief challenging the Constitutionality of it.  

An amicus curiae brief is not a brief by one of the parties in the case (in this case, either Ms. Kelly or Methodist Hospital). Rather it is often referred to as "a friend of the court brief" and the person filing it petitions the court to file a brief in the action because he has a strong interest in the subject matter of the lawsuit. I'll let the AG's brief speak for itself as to why it has an interest in this:

The State of Texas, acting through its Attorney General, has a solemn responsibility to defend the constitutional rights of Texas citizens, even from state statutes. Moreover, the State of Texas operates numerous public hospitals and health care facilities, and accordingly has a vested interest in determining the constitutionality of Section 166.046 of the Texas Health and Safety Code.
The AG argues many of the same points that Plaintiff Ms. Kelly does. But the importance here is not what was argued, but that the AG has decided not to defend this law. I am pleased to see this. The AG's office has not always taken the correct approach with regard to TADA. When Governor Abbott was AG and running for governor, he refused to intervene and act to uphold the provision of TADA that would have prevented its usage on a pregnant woman, Marlyse Munoz. The one redeeming provision of TADA was not supported by the AG at the time and was, effectively, judicially nullified. Ms. Munoz and her unborn baby, who was just weeks shy of viability, were killed against the law. (In that case, Mr. Munoz was petitioning the court to withdraw care from his wife and unborn child to hasten her death and ensure the child's in violation of the law.)

Important things with regard to the future of TADA are going to be heard tomorrow in court. Please pray for a pro-life outcome. Judges do not always rule on the hearing day, so it may be some time before we know. I will keep you updated.

In the meantime, please pray.

And, thanks for reading!