Doctors vs. Parents: Who Decides Right to Life?

Following surgery, Sabrina Martin's condition went south. And then, her family says, Children's Memorial Hermann Hospital set about arranging for her demise.

Painter says that doctors spoke with Daniel Martin, who sided with the physicians, but there was one glaring problem. As with all the other extended family members who agreed to withhold treatment, Daniel Martin had no say over the matter, and in fact, says Painter, it was a violation of federal privacy laws for anybody at Memorial Hermann to discuss the teen's medical condition with anyone other than Lopez and Murray, the legal guardians.

"I ended up writing a letter that I faxed to the hospital administration about the privacy law violations," says Painter. "And 20 minutes later, I got a call back and Daniel Martin was out of the picture. The hospital tried to split the family, and they do that quite frequently."

As Lopez and Murray would discover, however, that was just the start of the hospital's behind-the-curtain tactics.

Three days after Sabrina's second surgery, one of her doctors entered an order not to resuscitate her, says Painter. Lopez and Murray had no idea he had done so. They say they did not want the order put in. According to hospital records, the same day that the instruction was entered, a social worker documented that it "appeared (Lopez and Murray) did not agree with the recommendations for DNR as of yet."

Then, two days later, a different doctor issued a second order not to resuscitate Sabrina, the very day that hospital records show Lopez had requested a second opinion from another neurologist.

"I felt so violated," says Lopez. "I couldn't believe they would do this. I mean, we're talking about a hospital; they're supposed to have the patient's best interest, and this was way too soon to be giving up."

Lopez was further dumbfounded when doctors refused to insert a feeding pipe, called a G-Tube, or perform a simple tracheotomy, placing a breathing tube into Sabrina's neck, allowing her to leave the hospital so that Lopez could care for her daughter at home.

"They never proposed the G-Tube and trach," says Lopez. "I researched the options and said we wanted that. But Memorial Hermann wouldn't do it, saying she wouldn't have a high quality of life. And I was very disappointed because I was like, 'How do you define quality of life?' She doesn't need to play basketball as long as she can understand what we're saying."

Painter says he was appalled to learn how the hospital's ethics committee conducted itself. He alleges that the hospital's then-chief ethicist, who is no longer with Memorial Hermann, took an informal poll of committee members before convening the panel. However, the votes were not there, so the group never officially met.

"It's shocking how they did this," says Painter. "Instead of being neutral, the ethicist was acting like a floor whip in Congress. The one saving grace was that one doctor said he saw brain activity and that Sabrina may survive."

Painter and his clients believe that all these alleged attempts to end Sabrina's life were an effort to cover up the mistakes that led to her condition.

"You have a patient who comes out of surgery and is doing fine," says Painter. "But as time quickly moves on, she becomes combative, her speech changes, her motor skills go weird, her sodium levels are diving, she's in pain, pulling her turban and her central line, and they have her tied down and just keep giving her morphine to mask the symptoms and just ignore the real problem until she goes into arrest. It's absolutely incredible."

In Texas, if doctors follow the Advance Directives Act, successfully withdrawing treatment, and the patient dies, they are immune to being sued for the death, says Painter. If medical error caused the condition leading to the withdrawal of treatment, the doctors and hospital can still be liable, but the amount of money potentially owed is substantially less because the patient is dead and will not require large sums to pay for extended medical care.

"There's a conflict of interest here because there's an economic incentive to misuse the law," says Painter. "In my opinion, what they were trying to do was literally bury the malpractice."

Sabrina Martin's case illustrates a growing debate over whether doctors accused of medical error should still be able to unilaterally enter orders not to resuscitate patients or to invoke the Advance Directives Act.

"The assumption, I think, has always been that you have to assume doctors are acting in good faith," says Burke Balch, director of the National Right to Life's Robert Powell Center for Medical Ethics in Washington, D.C. "Yet, human nature is such that people do engage in cover-ups and people do make mistakes. There can be simple bad actors and flat-out malpractice that this (law) provides an opportunity to cover up. And human nature being what it is, that's what tends to happen."

Dr. Robert Fine points out that hospitals cannot initiate the Advance Directive law, only doctors can. And the physician who does invoke the law cannot sit on the ethics committee. In addition, Fine does not believe doctors and hospitals are in cahoots, because in most facilities throughout Texas, hospitals do not employ doctors, rather physicians work as independent agents.

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