Chapter 7-6 Limitation of Liability for Withholding or Withdrawing Life-Sustaining Procedures

• Jurisdiction: United States

7-6 Limitation of Liability for Withholding or Withdrawing Life-Sustaining Procedures

A physician must comply with the provisions of an advance directive unless he or she believes that the directive does not reflect the present desire of the patient.

When the Advance Directives Act is followed:

1. A physician or health care facility that causes the withholding or withdrawal of life-sustaining procedures is not subject to civil liability unless the provider is negligent.⁶³

2. No health professional, including nurses, who act under the directions of a physician are subject to civil liability unless they are negligent.⁶⁴

3. A physician or other health care professional is not guilty of any criminal act or unprofessional conduct on account of his or her following the law, unless he or she acted negligently.⁶⁵

7-6:1 Liability for Failure to Effectuate Directive

A physician, health care facility, or health care professional who has no knowledge of a directive incurs no civil or criminal liability for failing to act in accordance with the directive.⁶⁶ Accordingly, it behooves an individual who has executed a directive to provide a copy to his or her physician and to walk with a copy if he or she goes to a hospital (where the federal Patient Self Determination Act requires the hospital to ask whether the individual has executed a directive).

7-6:1.1 Review and Discipline

If a physician, or a health care professional acting under the direction of a physician, is aware of the existence of a directive, and refuses to comply with its terms, that professional is either subject to review and disciplinary action by his or her appropriate licensing board or a review procedure set out in Texas Health and Safety Code § 166.046.⁶⁷

7-6:1.2 Review Procedure of Texas Health and Safety Code § 166.046

First, the physician's refusal to disconnect life support must be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. During the period of review, the patient shall be given life-sustaining treatment.⁶⁸

The patient (if competent) or the patient's agent must be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive (unless the time period is waived by mutual agreement). The patient or agent is entitled to attend the meeting and receive a written explanation of the decision reached during the review process.⁶⁹ This written explanation must be included in the...