Due Process under the Texas Advance Directives Act

I was re-reading a famous Texas case this week, Burditt v. Dept. of Health & Human Services, 934 F.2d 1362 (5th Cir. 1991).  It provides an interesting contrast to the dispute resolution mechanisms in the Texas Advance Directives Act.



The on-call obstetrician at DeTar Hospita in Victoria, Texas refused to treat Rosa Rivera who had arrived in labor and with dangerously high blood pressure.  Dr. Burditt wanted to transfer Rivera to another hospital without first stabilizing her (EMTALA-defined) emergency medical condition.  The hospital administrator told Burditt that EMTALA prohibited such transfers unless he first completed a "Physician's Certification" that the benefits from treatment at the other facility outweigh the increased risks from the transfer (which was 170 miles away).  Burditt asked for "that dang piece of paper" and signed his name.  Nevertheless, Burditt was still sanctioned by DHHS because he signed the transfer certification "as a mere formality" and did not actually weigh the medical risks and benefits of transfer.



In Burditt, the DHHS was able to look into the merits of the physician certification. Finding neither evidence nor medical judgment supporting the certification, DHHS determined it was invalid.  In contrast, there is no such oversight over Texas hospital ethics committees employing the Tex. Health & Safety 166.046 procedure,  The determination of medical inappropriateness may be (and often is) just as unsubstantiated as Dr. Burditt's certification.  But there is no process (judicial or administrative) to assess that, as there was in the case of Dr. Burditt.