HBA-MPM, MPM H.B. 2801 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 2801
By: Longoria
Public Health
4/8/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, state law provides for protection of the right of patients and
their families to reject lifesustaining treatment, however, it does not
provide equal protection for patients and their families who choose
life-sustaining treatment.  A physician who denies lifesaving treatment
against the will of a patient has immunity from civil and criminal
liability.  While the physician has a duty to make a reasonable effort to
transfer the patient to another physician, there is no requirement that the
patient be given lifesaving treatment pending transfer.  Some Texas
hospitals now have procedures under which lifesaving treatment may be
involuntarily denied by an ethics committee, after which treatment is not
provided even pending transfer. 

H.B. 2801 requires that lifesaving treatment be provided to a patient for a
period of 14 days (subject to court extension) when a physician wishes to
deny it in order to enable time to effect the patient's transfer to a
willing provider of lifesaving medical treatment. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 135.008(c), Civil Practice and Remedies Code, as
follows: 

(c)  Requires an attending physician of a principal or a health care
provider who refuses to follow a directive by the agent to comply with the
procedure established under proposed Section 672.0165, Health and Safety
Code.  Deletes text requiring a principal's health or residential care
provider who finds it impossible to follow a directive by the agent because
of a conflict with this chapter or the durable power of attorney for health
care to inform the agent as soon as reasonably possible.  Deletes text
authorizing the agent to select another attending physician. 

SECTION 2.  Amends Section 135.018, Civil Practice and Remedies Code, to
provide that this section does not authorize a violation of proposed
Section 672.0165, Health and Safety Code. 

SECTION 3.  Amends Section 672.016, Health and Safety Code, as follows:

Sec. 672.016.  New title:  LIABILITY FOR FAILURE TO EFFECTUATE DIRECTIVE.
Deletes "Limitation of" from title.  Provides that a physician or health
professional acting under the direction of a physician who complies with
proposed Section 672.0165, Health and Safety Code, is not civilly or
criminally liable for failing to effectuate a qualified patient's
directive.  Deletes text requiring an attending physician to make a
reasonable effort to transfer a patient to another physician if the
physician refuses to comply with a directive or treatment decision. 

SECTION 4.  Amends Chapter 672, Health and Safety Code, by adding Section
672.0165, as follows: 

 Sec. 672.0165.  DUTY TO TRANSFER PATIENT.  (a)  Requires an attending
physician or health care facility (facility) who refuses to comply with a
directive or treatment decision to comply with this section.  Requires the
physician or facility to assist in arranging transfer of a patient to
another physician or facility that is willing to comply with the directive
or treatment decision and prohibits the physician or facility from impeding
the transfer. 

(b)  Requires the physician or facility to provide the patient with
available treatment as, in reasonable medical judgment, is necessary to
prevent the patient's death until the transfer is completed, if the
directive or treatment decision with which the physician or facility is
unwilling to comply is for the provision of treatment.  Provides that this
subsection does not require a physician or facility to provide treatment
that cannot be provided to the patient without denying the same treatment
to another patient. 

(c)  Provides that the obligation to provide treatment under Subsection (b)
continues until the 14th day after the physician or facility provides
written notice of the refusal to comply with the directive or treatment
decision to certain persons and the end of any period of extension
established under Subsection (g). 

(d) Authorizes the patient, if competent, or a person legally responsible
for making health care decisions on the patient's behalf if the patient is
incompetent, to apply to a probate court for an extension of the period
established under Subsection (c). 

(e)  Provides that the applicant must notify the attending physician or
facility of an application made under Subsection (d). 

(f)  Requires the court to promptly hold a hearing on the application at
which each party is authorized to present evidence and argument.
Authorizes the court to grant brief extensions of the period established
under Subsection (c) as necessary to preserve the status quo until the
hearing can be held and a decision rendered. 

(g)  Requires the court, after the hearing, to grant the extension for a
specified period as determined by the court if it finds by a preponderance
of evidence, that, if the extension is granted, there is a reasonable
prospect that a facility willing to accept the transfer of the patient and
to comply with the directive or treatment decision will be found. 

SECTION 5.  Amends Section 672.021, Health and Safety Code, to provide that
this section does not authorize a violation of proposed Section 672.0165,
Health and Safety Code. 

SECTION 6.Emergency clause.
  Effective date: upon passage.