FORT WORTH, Texas (CN) – The mother of a 1-year-old baby and Texas’ Republican attorney general and governor implored a state appeals court Tuesday to halt a hospital’s plans to take her off life support.
A three-judge panel with the Second Court of Appeals in Fort Worth heard oral arguments to decide whether to reverse a trial court’s Jan. 2 ruling that Cook Children’s Medical Center can remove Tinslee Lewis from child support.
In November, the Fort Worth hospital’s ethics committee invoked the Texas Health and Safety Code’s 10-day rule allowing it to pull a patient from life support, spurring a lawsuit from Trinity Lewis, the baby’s mother. The hospital insists the child is in constant pain and her condition will never improve.
Lewis’ attorney, Joseph M. Nixon, told the appeals court Tuesday the law is “hopelessly flawed” and “lacks every indicia of due process,” which unconstitutionally terminates the child’s life and the substantive rights of her mother.
“There is no right of the hospital terminating care,” he said. “Instead, they have a duty to provide care … they are obligated under an agreement with the state of Texas under the STAR Kids program to be the provider of care in a six-county area. They have agreed to effectuate a policy of the state to provide for indigent and special needs children. They have a contractual duty to the state and to my client. They cannot shrug it off or ignore it.”
Justice Wade Birdwell interjected, asking if there is standing for at least the attending physician to make the decision to terminate care in the best interest of the child. He cited several Jehovah’s Witnesses cases in Texas and before the U.S. Supreme Court involving physicians overruling patient wishes regarding the use of blood transfusions.
“Isn’t it not the duty of the state to look into whether the care is futile?” Birdwell asked, citing the Texas law stating it is subject to federal child abuse and neglect laws. He said those laws allow for life-saving care to be withdrawn if the case is futile and does not “ameliorate or correct the life-threatening condition” of the child.
Nixon responded the blood transfusion cases are not applicable because those actions were taken by doctors to help a patient live, whereas here action is being taken that will result in death. He also argued there is no due process in this case, saying the hospital ethics’ committee decision for his client did not even have to be in writing.
“The mother is informed in two days there is going to be an ethics committee meeting,” Nixon said. “A group of nameless, faceless people.”
Texas Solicitor General Kyle Hawkins also argued in support of Lewis on behalf of Texas Attorney General Ken Paxton and Governor Greg Abbott. The Republican duo filed a friend-of-the-court brief on Jan. 17, arguing the 10-day rule does not require doctors to explain their decision or give relatives enough notice.
Hawkins told the panel the hospital is wrong in arguing Lewis will be killed by her illness, not the removal of care.
“That is like arguing plane crashes are caused by gravity,” he said. “We would never allow an airliner manufacturer to escape liability by saying it was gravity that caused the plane crash and not faulty engineering. In the same way, the hospital should not be allowed to hand-wave away a deprivation by saying it is the underlying illness that will terminate life and not their actions.”
The hospital’s attorney, Laura E. Copeland, argued her client does not have a “constitutional duty to provide artificial life support to any patient” who wants it. She cited U.S. Supreme Court precedent finding “there is no free-standing constitutional obligation for the government to provide services to its citizens” under any circumstances.
Copeland said the high court has ruled “the due process clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty or property.”
The attorney said it is impossible to get around that conclusion.
“The mother wants to force Cook’s doctors and nurses to perform artificial life support that they believe is unethical,” she said.
Copeland added that the right of conscience the doctors are asserting in this case is no different than doctor objections to performing abortions.
“In both cases, the doctor believes she is being compelled to harm another person and is compelled to refuse by ethics, conscience and religious beliefs,” she said.
The hospital has said it contacted over 20 facilities to see if they would take Lewis, but all agreed additional care is futile. It says she has “dying events” two to three times every day.
Paxton said before oral arguments the child “must be afforded the rights she deserves.”
“Patients must be heard and justly represented when it comes to determining their medical treatment, especially when their life is at risk,” the attorney general said in a written statement. “Life is the first constitutionally protected interest, and this case is a matter of life and death for a defenseless child.”
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