S.B. 675 Probably Not Bad for Texas

I did not expect myself to write in
defense of Texas Senate Bill 675.  But I
want to help provide some clarity in the renewed debate over amending the Texas Advance Directives Act.

Last week, on behalf of the Texas
Medical Association, Dr. Arlo Weltge testified before the Texas Senate Health
and Human Services Committee, against S.B. 675. 
One line in his written testimony caught my eye:  “As always, physicians remain liable for the
decisions they make that are outside of the standard of care. However, S.B. 675
would establish a new standard of care for a physician to provide unlimited
treatment even when unethical and immoral.”

This statement is just plain wrong on
two counts.  First, under Texas Health
& Safety Code section 166.046, physicians are NOT “liable for decisions
they make outside the standard of care.”  In the context of this S.B. 675, the only
review and check on the physician is her own institution’s ethics committee.  If the physician’s institutional committee
agrees with her treatment plan (e.g. to stop life-sustaining treatment over the
surrogate’s objections), then the physician is cloaked with civil, criminal,
and disciplinary immunity.  Consequently,
the physician cannot be sanctioned for breaching the standard of care.  Indeed,
it is precisely this utter lack of meaningful accountability that is the law’s
most serious shortcoming.  

Second, S.B. 675 would NOT “establish
a new standard of care.”  The standard of
care in most places in the United States (except Washington, Arizona, and
Virginia) is not statewide, but nationwide. 
And in the United States, the prevailing custom is to provide aggressive
ICU care when that is what patient’s surrogate requests.  I am not saying that is best or right.  But it
is what physicians do daily.  Rather than
establishing a “new” standard of care, S.B. 675 would cancel the “blank check”
that Section 166.046 now gives Texas physicians to violate the already existing
standard of care.