TEXAS ADVANCE DIRECTIVES ACT versus “STATE-CREATED DANGER” THEORY: A PRIMA FACIE ANALYSIS
Posted Feb 21 2010 4:30am
Christopher Ryan Burge just published "TEXAS ADVANCE DIRECTIVES ACT versus “STATE-CREATED DANGER” THEORY: A PRIMA FACIE ANALYSIS" as note in the American Journal of Trial Advocacy (32 Am. J. Trial Advoc. 557), a journal at Samford University Cumberland School of Law. Here is the article's conclusion:
The TADA procedural futility statute is currently unique to Texas, but in the near future similar procedural futility statutes may be passed in other states as improving medical technology compels state legislatures to pass more laws addressing medical futility cases. As such, the state-created danger theory, if held to be applicable to statutorily sanctioned actions by individual state actors, could provide a theory for recovery in other constitutionally questionable, statutorily-created dangerous situations. But for now, the state-created danger theory may well provide viable grounds for recovery in Texas when a life is prematurely ended because of the statutorily protected decisions made by doctors to remove life-sustaining medical treatment.
Judge Posner said it best: "If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." The actions of a doctor and a hospital ethics committee, by certifying and carrying out the non-consensual removal of a patient's life-sustaining treatment, arguably provide sufficient grounds to satisfy a prima facie state-created danger cause of action. There are significant obstacles that a would-be plaintiff will need to overcome, including immunity defenses and the reality that state legislative acts, however unpopular, have long been afforded substantial discretion. Fortunately, even state legislative actions, such as the TADA, are not above Due Process scrutiny. It simply remains to be seen whether the state-created danger theory will be used to recover against a statutorily-permissible constitutional deprivation.