FORT WORTH, Texas (CN) – Texas’ governor and attorney general asked a state appeals court Friday to stop a hospital from removing an 11-month-old girl from life support over the objections of her mother, arguing the state’s 10-day rule is unconstitutional.
Governor Greg Abbott and Attorney General Ken Paxton, both Republicans, filed a friend-of-the-court brief with the Second Court of Appeals in Fort Worth. They are asking for the reversal of a trial court’s Jan. 2 ruling that Cook Children’s Medical Center can remove Tinslee Lewis from life support.
Her mother, Trinity, sued after the Fort Worth hospital planned to remove life support on Nov. 10 and invoked the 10-day rule under Section 166.046 of the Texas Health and Safety Code. Doctors had concluded the child is in constant pain, is suffering and her condition will never improve. The law lets hospital committees withdraw life support after 10 days if a new medical provider cannot be found.
Paxton disagrees, saying the child “has the right to life and due process” like all Texans do.
“Patients must be heard and justly represented when determining their own medical treatment, especially when their life is in danger,” he said in a statement. “My office will use all necessary resources to ensure that this baby and all Texans are afforded the rights they deserve.”
Lewis’ mother immediately appealed the trial court’s ruling and the appeals court issued a stay against removing Tinslee from life support until it issues a final ruling.
Paxton argues the law denies due process because it does not require doctors to explain why they refused life-sustaining treatment or give families enough notice and opportunity to argue before a hospital’s committee decides to pull life support.
“Only one other state, Virginia, arbitrarily cuts off a provider’s duty to continue life-sustaining treatment after a specified period,” the 35-page brief states. “But Virginia provides a longer timeframe and, unlike Texas, ensures the patient’s right to seek meaningful judicial review. Even criminals facing the death penalty for the most serious of crimes enjoy significantly more process than what section 166.046 provides the guiltless in Texas.”
The attorney general further argues that the private health care provider in such a scenario is effectively acting as a state actor because the law is delegating it a “unique governmental” function.
“The provider’s medical commit functions as a court or administrative tribunal in finally adjudicating whether the patient’s physician has a duty to follow the patient’s request for life-sustaining medical treatment,” the brief states. “The medical committee mimics a state adjudicatory body.”
Cook Children’s Medical Center said Tinslee has “dying events” two to three times every day and that it has contacted over 20 facilities to see if they would take her. It claims they all agreed additional care is futile.
“Our medical judgment is that Tinsleee should be allowed to pass naturally and peacefully rather than artificially kept alive by painful treatments … to keep her alive, doctors and nurses must keep her on a constant stream of painkillers, sedatives and paralytics,” the hospital said on Jan. 2. “As a result, Tinslee is paralyzed at all times. She currently is suffering from severe sepsis.”