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Martin v. Memorial Hermann (Part II)

Posted Sep 22 2008 10:34am

The commenter on my previous post about Martin v. Memorial Hermann is correct in most respects. There is nothing blameworthy about the hospital's plan to utilize the Texas Advance Directives Act. It was designed as a mechanism to resolve intractable futility disputes. However, it is unclear whether this dispute truly was intractable because it is unclear what sort of communication and mediation occurred before any plan to use TADA 166.046. It is also unclear whether the MH ethics committee would have agreed with the treatment team. Still, even had the formal mechanism been employed, presumably the same transfer that was made would have been found and made.

The commenter is also correct that there is nothing wrong with trying to get the parents to voluntarily terminate LSMT. The problem is that their efforts may have moved from persuasion to manipulation or coercion, such that any consent would not have been truly voluntary. Again, we have a very incomplete set of facts here.

The providers at Memorial Hermann were absolutely correct in not automatically acceding to any treatment request that Sabrina's parents made for her. If they felt that the requested treatment was "medically inappropriate" or "medically unacceptable," then they certainly should (1) try to convince the parents of that, (2) find another decision maker, or (3) find another provider. They apparently tried all three of these, ultimately using (3) to resolve the dispute.

I have requested but have not yet seen the complaint. However, I do not think, as the commenter suggests, that the parents are suing for over-treatment or wrongful life that left them with a severly brain-damaged child. Rather, it appears they are suing for under-treatment or mistreatment that led to the bad outcome in the first place.

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