Schiavo, futile care, and money

“Bush signed bill to kill patients for money”: false.
“Bush signed bill that would have allowed killing Schiavo”: true.

There are two separate issues about the Texas Futile Care Law, and I regret helping to get the two of them confused. One question is whether the law makes money the deciding factor in who lives and who dies, and in paricular the role of money in the Hudson and Nikolouzos cases. The other is whether the law would allow the discontinuation of artificial feeding for someone in Terri Schiavo’s condition.

The second point strikes me as the nationally relevant one. If disconnecting Terri Schiavo’s feeding tube is “murder,” then the law Gov. Bush signed, and which is still on the books, permits murder. No one has yet explained how he could have been sincere in first signing the Texas law and then signing the Schiavo bill.

On the money question, however, my original post was misleading, and unjust to the employees of the two hospitals involved.

Following what Prof. Tom Moore convincingly argues was tendentious reporting from the Houston Chronicle, asserted that “negative wallet biopsies” were central to the two cases.

In one respect, that was true of the Nikolouzos case: his family had found a nursing home willing to take him, but only if Medicaid would pay. But it doesn’t seem to have been true that the two hospitals in question had made their own decisions on a fiscal basis, and I shouldn’t have been so hasty to rush to the conclusion that they had.

A reader familiar with the Hudson case and with Texas Children’s Hospital writes:

TCH would have still paid for the child’s care, but no other facility was willing to accept a terminally ill patient when there is nothing that you can do for them. TCH also has a 10 person ethics board that met constantly to review the case and to decided what is the best, and most ethical treatment for this child. Cost is never a consideration and was not in this case.

And James Sulak of Rice University says:

Thanatophoric dysplasia, by all reports, must be a terribly painful condition, and it seems unethical to keep a patient alive when there is no hope of recovery. Thanatophoric dysplasia is always fatal.

The conduct of the hospital was appropriate in every way. They made the correct determination that Sun should be removed from life-support because his condition was both untreatable and terribly painful if he was allowed to remain conscious. The hospital voluntarily recommended court involvement and paid for the Hudsons’ attorney fees, all the while keeping Sun alive longer than strictly required by law.

In the best of all worlds, hospitals wouldn’t have to make decisions like this. But there clearly has to be recourse for when a family is unwilling to see reality and continuing care is both futile and inhumane.

The hospital, by these accounts, did a great job of ensuring that the Hudsons’ interests were fairly represented. I don’t believe that any hospital would abuse this power by rushing to remove a person from life support when the family objects. This is partly because of ethical situations, but also because of the inevitable (and expensive) legal challenges and bad publicity of doing so.

So it is not right to say that these two patients were condemned to death for lack of money. And the two cases we know about provide no evidence for the claim that the Texas Futile Care Act results in hospitals’ shutting off life support for non-paying patients. (As the Nikolouzos case demonstrates, however, whether a patient whose current provider turns him down can get a substitute provider to keep him alive might well depend on money.)

Of course, those aren’t the only two cases that will develop under the law, and it’s entirely possible that in some other cases the hospital’s financial stake in getting rid of an expensive non-paying patient might play a central role. (And of course tightening the Medicaid budget makes the pressure worse: in addition to the inconsistency between the Texas Futile Care law and the Schiavo law, there’s a deep inconsistency about preaching “life” while trying to cut the Medicaid budget.)

To sum up: “Bush signed bill to kill patients for non-payment”: false. “Bush signed bill that would have allowed killing Schiavo”: true.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: