Risk of Hastening Death vs. Risk of Prolonging Dying

The one thing from Tuesday's hearing that surprised me most was the failure of witnesses testifying both for and against H.B. 3520 to present "compelling evidence" to support their positions.  Yes, the personal stories (from both families and physicians) were compelling.  They help the legislators and the public better understand what is at stake.  But what was absent was any notion of scale or scope.  One key way in which to frame the issue is in terms of weighing (a) the risks of inappropriate prolongation of dying against the risks of (b) inappropriate hastening death.  





Risks of Inappropriate Hastening of Death

• This is the risk that has received almost all the focus for decades.  Almost all the safeguards in state laws are directed at mitigating this risk.  And the use of such safeguards was specifically endorsed by the Supreme Court in Cruzan -- even if they increased the risk of inappropriate prolongation of dying against the wishes of the patient.


• Texas Right to Life and others have identified some cases where the prognosis was, in retrospect, wrong.  They are correct that TTT will virtually eliminate the risk of inappropriate hastening of death.  No provider could unilaterally refuse LSMT until the new provider stepped in to continue it.  (Of course, the risk will still not be zero.  Surrogates can still consent when they should not.  Physicians can still stop secretively.) 

Risk of Inappropriate Prolongation of Dying

• But even if H.B. 3520 virtually eliminates the risk of inappropriate hastening of death, it also increases the risk of inappropriate prolongation of dying. 


• Unfortunately, this risk has received insufficient attention.  By enacting Section 166.046 in 1999, Texas meaningfully acknowledged this risk.  It has not gone away in the past 11 years.  If anything, it is a more serious problem today.  


• Perversely, H.B. 3520 forces patients to continue receiving (and physicians and nurses to continue providing) inappropriate life-sustaining treatment in  precisely the cases for which there is the least justification for doing so.  Where the treating facility is "correct" that continued LSMT is inappropriate, they are least likely to find a transfer.  In these cases, where the provider is correct and all other providers agree, the current provider must continue.


• Providers in Texas should develop robust evidence demonstrating the deleterious consequences of inappropriate prolongation of dying.  It probably violates all four principles of bioethics:  (1) autonomy because (contrary to the surrogate's decision) the patient probably would not want it, (2) non-maleficence because it causes suffering, (3) beneficence because it does no good for the patient, and (4) justice because it deprives other patients of resources.  


• I suspect that the justice argument may be the most compelling, if it were developed.  TMA-THA could surely develop data on things such as (a) ER boarding and associated increased risks due to ICU beds being occupied by those with zero or close to zero chance of recovery, and (b) increased antibiotic resistant (e.g. Niederman & Berger 2011).