FORT WORTH, Texas (CN) — A Texas appeals court blocked a hospital Friday evening from removing 17-month-old baby Tinslee Lewis from life support, allowing her mother to take a challenge of the state’s controversial 10-day rule to trial.
In a 2-1 majority opinion, the Second Court of Appeals in Fort Worth issued a temporary injunction against Cook Children’s Medical Center from taking Tinslee Lewis off life-saving treatment.
Lewis was born premature and doctors say she is in constant pain as she is kept alive with a constant stream of painkillers, sedatives and paralytics that keep her paralyzed at all times. Cook claims it has contacted over 20 facilities to see if they will take Lewis, but that they all agree further care is futile. It says she has “dying events” two to three times every day.
The ruling reverses a trial judge’s Jan. 2 order for Lewis to be taken off of life support. The girl’s mother, Trinity Lewis, sued the hospital in Tarrant County District Court in November 2019 when it invoked the 10-day rule under the Texas Advance Directives Act that allows the hospital’s ethics committee to determine whether to cease life-saving care.
Writing for the majority, Justice Wade Birdwell concludes Lewis’ mother is being denied due process due to a “lack of reasonable notice and a meaningful opportunity to be heard” before the hospital’s committee reached a decision.
“Mother argues that the unilateral decision to withdraw life-sustaining treatment… overriding her refusal to consent, deprives her daughter of a vested fundamental right to life and deprives mother of a derivative, yet vested, fundamental right to make medical decisions for her daughter in violation of federal and state due-process guarantees, both facially and as applied,” the 148-page majority opinion states. “We agree that mother has shown a probable right to relief on these facts.”
Republican Governor Greg Abbott and Attorney General Paxton filed a friend-of-the-court brief in January that argued the private health care provider in this case is effectively acting as the state because the 10-day rule delegates a “unique governmental function.”
The majority agreed with that distinction Friday in determining the need for due process. It concluded a doctor’s unilateral decision to stop life-sustaining treatment in this case constitutes a “state action” under the Fourteenth Amendment of the U.S. Constitution and Article I of the Texas Constitution.
The majority disagreed with the hospital’s argument that Lewis’ right to life is not impacted by the decision because “her death would be caused by her underlying disease process,” not the removal of life support.
“[Cook] confuses a patient’s initial consent to health care treatment with the continuation of that treatment in the life-sustaining treatment context,” the opinion states. “If T.L. dies after [Cook], through her attending physician, discontinues her life-sustaining treatment – and if no action or inaction of [Cook], its staff, or any other person ‘hastens her death’ in violation of TADA – presumably, she will die of the of the natural disease process. But because the life-sustaining treatment has already begun with mother’s consent and has continued for some time, there is no dispute that life-sustaining treatment is what is keeping her alive currently in accordance with mother’s wishes. [Cook’s] and the attending physician’s belief that T.L’s life now is being harmed more than it is being helped by such treatment does not change that fact.”
Birdwell was joined in the majority by Justice Mike Wallach, while Justice Lee Gabriel dissented. Gabriel disagreed the hospital was acting as the state, writing that Cook would do so only if “the function is the exclusive prerogative” of the state.
“In my opinion, life-or-death medical decisions, which certainly involve the public good or the public interest, cannot be considered to be the exclusive province of the state such that a private actor making such a decision is effectively acting as the state,” the 10-page dissenting opinion states. “My reading of the case law is that there is a difference between a state’s interest in a decision and a state’s responsibility for a decision.”
Gabriel writes Texas is definitely interested in the hospital’s treatment decision, but that the issue is whether Texas “is ultimately responsible for the decision because the decision has traditionally and exclusively been the state’s to make.”
The hospital declined to comment Friday evening, stating it is reviewing the court’s ruling.
Lewis’ mother cheered the court’s ruling, saying it will allow her to fight for her daughter.
“I am so thankful the court of appeals sees the injustice of the 10-Day Rule,” she said in a statement.
Lewis’ attorney, Joseph Nixon, told the appeals court during oral arguments in February the hospital has no right to terminate care, that is only obligated under an agreement with the state under the STAR Kids program to provide care for indigent and special needs children in a six-county area.
“They have a contractual duty to the state and to my client,” Nixon said at the time. ”They cannot shrug it off or ignore it.”
Lewis is represented by Texas Right to Life, who “praises God” that the court “granted more time” for Tinslee.
“Over the last several months, Texas Right to Life has seen more and more hospitals trying to force the 10-Day Rule on innocent Texans,” it said in a statement. “The 10-Day Rule has robbed countless patients of their Right to Life and right to due process.”
Attorney General Paxton “wholeheartedly” commended the court for protecting Tinslee’s life and for allowing her family to fight for her in court.
“Life is the first constitutionally protected interest, and this innocent baby girl must be afforded the rights she deserves,” he said in a statement. “Patients must be heard and justly represented when it comes to determining their medical treatment, especially when their lives are at risk.”
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