Adding Angst to Tragedy

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Posted January 15, 2014 by KAREN TELSCHOW JOHNSON in News
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Down the road from my office, at John Peter Smith Hospital, Marlise Muñoz, 33, is brain-dead. She is a continued patient at JPS because she is plugged into machines that breathe for her and pump her blood. The hospital chose to keep her on life-sustaining treatment because she is pregnant. JPS officials  are incorrectly applying a law that was never meant to apply to a dead pregnant woman.

The hospital’s decision is tragic. But there is a very good chance it would never have arisen had Muñoz filled out some fairly simple legal forms –– forms that every adult in our society should complete. Not everyone has possessions whose disposition they care a lot about. But we all have our bodies, and most of us have loved ones whom we would not want to leave with heart-rending decisions. Without those documents, if a time comes when you are unable to communicate for yourself, you have invited the government into the most personal decisions of your life, including your death.

Let’s clarify a few things about Muñoz’ situation: Her fetus has no rights recognized in the law. The advanced-directive law being relied upon here states that “life-sustaining treatment may not be removed from a pregnant patient.” The result of that law seems to create a hierarchy that puts concern for the pregnancy above that for the patient, but it is not a law giving rights to a fetus. This is a case that seems to slip through the cracks of all law surrounding it because the patient lacks any brain activity. The law does not contemplate how to treat someone who is pregnant but legally dead.

When a family has to battle with a hospital over the treatment of a loved one, there are legal alternatives: Review any documents in effect to determine who has the legal decision-making authority for the patient. Apply for guardianship over the patient. And review the law to make a determination as to who has the legal right to make decisions.

Here are the problems with each of those options in this case: No one can obtain a guardianship, because there is no living person who would be the ward. In the same way,  the advanced directive applies to a person who is alive, and so that law does not apply in this case although JPS is incorrectly relying upon it.

Once the patient has died, I would argue that the part of the law that should be applied is the one on dealing with the person’s remains. Section 711.02 of the Texas Health and Safety Code says that, if the decedent has not left directions in writing, then certain people, in order, would have the duty and right to dispose of the person’s body: the surviving spouse, a surviving adult child, either of the deceased person’s parents, a surviving adult sibling, or, failing all that, “any adult person in the next degree of kinship in the order named by law to inherit.”

There is no doubt that Marlise Muñoz is dead. Under this law, her husband, Erick Muñoz, has the legal right to make plans for his wife and to decide on her final resting place.

Whatever debate surrounds the pregnancy, it is not government’s place to be in this hospital room. When making these decisions, a family should not have to battle its own state. Can you imagine needing to make a medical decision for your spouse, your child, or your parent — a person you have known and loved through good times and bad — only to be told the decision is not in your hands? That the government knows better. The law knows better.

Does the law of agency –– appointing someone to act as your agent –– have any value if a provision in the law and misapplication of it can be used to strip that right away? The laws protecting the rights of an individual to appoint people to make decisions for them have all been ignored here.

The lesson for the rest of us is painfully obvious. You can keep those important, intimate choices in your hands by enacting a medical power of attorney, signing an advanced directive telling health officials what to do near the end of your life, and appointing an agent for your remains. And by giving copies of those documents to a family member and/or making sure they are placed in your patient file at the doctor’s office.

If not, just know that the State of Texas will be visiting your bedside when the time comes. And we never know when that time will be.

Karen Telschow Johnson is a Fort Worth attorney specializing in estate planning and elder law and is a volunteer with hospice care.


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