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Dispute Involving Brain Dead Pregnant Woman Finally Comes To A Proper End

Medicine Law

More than two weeks ago, I wrote about the case of Marlise Munoz, a 33 year old Texas woman who was being kept alive by machines against her family wishes because of a Texas law that forbids hospitals from removing a pregnant person from life support regardless of the existence of a living will or the wishes of her family. In the time that followed, there was an extended legal battle between the Munoz family and the hospital, which insisted on keeping her hooked up to machines despite the fact that every doctor who reviewed the case agreed that she was, in fact, brain dead and that the fetus inside of her was, at best, severely deformed and would not survive outside the womb. Some of the reports regarding the case were indeed quite grim, including testimony from Munoz’s family and friends that there was noticeable evidence that she was in fact dead and that her body was decaying. Despite this, the hospital maintained its position that Texas law required it to keep her on life support and several “pro-life” groups attempted to intervene in the case in much the same manner that they had intervened in the Terry Schiavo case nearly ten years ago. As in that case, though, the courts came down on the side of the family, with a Texas Judge ruling last Friday that Munoz must be taken off life support:

FORT WORTH — A Texas judge ruled Friday that a Fort Worth hospital may not keep a brain-dead pregnant woman on life support against her family’s wishes, and ordered doctors to take her off the machines by 5 p.m. on Monday.

The ruling gives the family of the woman, Marlise Muñoz, their first legal victory in a two-month battle over the fate of her body that has raised an emotionally charged national debate over end-of-life care, abortion and a Texas law that prohibits medical officials from withdrawing life support from a pregnant patient.

The judge, R. H. Wallace Jr. of 96th District Court in Tarrant County, ruled that Ms. Muñoz, 33, who has been on life support at John Peter Smith Hospital since November and is now 22 weeks pregnant, was legally dead, agreeing with the family’s lawyers that the hospital had erred in its decision to keep her on life support. The hospital had said the Texas law addressing life support for pregnant women prevented it from granting the family’s wish, but the judge said the law did not apply to Ms. Muñoz because she is dead.

In the end, the hospital ended up complying with the Court Order rather than appealing, and on Sunday Mrs. Munoz was taken off life support:

HOUSTON — A Fort Worth hospital that kept a pregnant, brain-dead woman on life support for two months followed a judge’s order on Sunday and removed her from the machines, ending her family’s legal fight to have her pronounced dead and to challenge a Texas law that prohibits medical officials from cutting off life support to a pregnant woman.

On Friday, a state district judge ordered John Peter Smith Hospital to remove the woman, Marlise Muñoz, from life-support machines by 5 p.m. on Monday. The judge ruled that the state law barring doctors from withdrawing “life-sustaining treatment” to pregnant women did not apply to Ms. Muñoz because she was brain-dead and therefore legally dead. The hospital had refused to honor the family’s request to disconnect her, claiming that the law prevented them from doing so until they could perform a cesarean delivery.

But on Sunday, the hospital decided against appealing the judge’s decision and announced that it would follow his ruling. The J.P.S. Health Network, which runs John Peter Smith Hospital as part of the taxpayer-financed county hospital district, said in a statement that the past several weeks had been difficult for both the family of Ms. Muñoz and her caregivers, but it defended its handling of the case.

“J.P.S. Health Network has followed what we believed were the demands of a state statute,” said a spokeswoman, Jill Labbe. “From the onset, J.P.S. has said its role was not to make nor contest law but to follow it.”

At roughly the same time, about 11:30 a.m., Ms. Muñoz was disconnected from the machines as her family gathered at her bedside in the hospital’s I.C.U. Her body was released to her husband, Erick Muñoz, the family’s lawyers and a relative said.

Having just been through brushes with the loss of family members myself, I am sure that the Munoz family is going through a combination of grief and relief at this point in time. Grief at the loss of a wife, daughter, and sister, of course, but also I would think some sense of relief that the ordeal that they have involuntarily put through since November 26th when Mr. Munoz discovered his wife collapsed in their home, lying unconscious and not breathing for an undetermined period of time that was likely an hour or longer. While it turned out as the case went forward that the initial reports that Mrs. Munoz had a Living Will that called for artificial life support to be discontinued if she was ever to be in the situation in which she was found were incorrect, there was never any dispute on either side of this case that Munoz was in fact brain dead, which is legal death in all states, and her family was united in believing that she would have wanted to be removed from life support in a situation such as this notwithstanding that she was pregnant at the time. Despite that, though, the hospital insisted that Texas Law forbade it from removing her from life support because of the pregnancy. While Judge Wallace ended up wisely avoided having to rule on the Constitutionality of that law, the fact remains that the law remains in effect and ready to cause the same problem for another grieving family in the future.

Attorney Mike Appleton shares some of the Constitutional issues raised by the statute:

The statute at issue in the Munoz case is a provision in the advance care directives laws of Texas that forbid withdrawing or withholding life-sustaining treatment from a pregnant patient. The statute, similar to those in a number of other states, is actually a type of nullification act. It does not recognize a woman’s constitutional right to privacy described in Roe v. Wade, 410 U.S. 113 (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It contains no exceptions based upon the viability of the fetus or the medical condition of the pregnant patient.

Similarly, the statute fails to acknowledge the right of a terminally ill patient to require that life-sustaining treatment be withheld or withdrawn, a right recognized in Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 291 (1990) and Washington v. Glucksberg, 521 U.S. 702 (1997). In essence the Texas legislature has declared that the rights of a terminally ill pregnant woman are subordinate in all respects to the rights of the fetus, regardless of the stage of gestation or the consequences to a dying woman of maintaining the pregnancy. What the hospital did in the Munoz case was attempt to extend this control to a point even beyond death.

The court was unable to confront these constitutional infirmities in the Munoz case. While the Munoz family can finally mourn the loss of a wife and daughter and mother,  it will likely require that another family suffer another tragedy before this statute can be successfully challenged.

The alternative, of course, would be for Texas Legislators to change or even repeal the law so that it doesn’t cause problems for families like the Munoz’s ever again. Given the grip that the so-called “pro-life” forces have on the Republican dominated politics of the Lone Star State, though, that seems unlikely.

Marlise Munoz is, finally, at peace and her family can begin to grieve properly. This truly bad law, though, remains on the books.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    I’m very glad the family prevailed. One article I read stated that the reason this case was so drawn out was that the hospital neglected to provide a certificate that she was dead. I don’t know if that’s true, but the court documents I saw indicated that the hospital did indeed agree that Ms. Munoz was dead, and that the fetus she was carrying wouldn’t survive even if she had stayed on organ support for another two weeks. So it was a lot of pointless anguish for Ms. Munoz’s husband and parents.

    You can make a case for a pregnant woman being kept on life support IF she’s in a pvs or a coma, IF that is her wish. But it’s unlikely that a young, healthy-seeming woman would even think of such a contingency and plan accordingly.

    However you read the law, it wasn’t intended to apply to someone who’s dead legally and medically.

    Like or Dislike: Thumb up 4 Thumb down 0

  2. Kari Q says:

    I’m relieved that the family will finally be able to move past this and mourn the loss of their loved one. What a tragedy that the state intervened against their wishes.

    Like or Dislike: Thumb up 9 Thumb down 0

  3. gVOR08 says:

    I haven’t been following this closely, but it kind of smelled like the hospital knew what had to be done but wanted a court order to cover their asses. Given where they are, I can’t blame them.

    Like or Dislike: Thumb up 6 Thumb down 0

  4. @gVOR08:

    You may be correct there. I could indeed see the hospital’s attorneys being concerned about their client’s liability. What’s unclear to me is why this took so long to resolve.

    Like or Dislike: Thumb up 6 Thumb down 0

  5. C. Clavin says:

    Smacks of Terry Schiavo.
    What’s wrong with Republicans?
    Sick f ‘ers.

    Hot debate. What do you think? Thumb up 17 Thumb down 4

  6. Dave Schuler says:

    I’ve heard interviews with one of the chaps who wrote the law in question, a law prof at SMU. He said that it wasn’t the law but the hospital. His claim was that the law doesn’t apply to this case and the hospital was trying to avoid liability.

    Like or Dislike: Thumb up 5 Thumb down 0

  7. CSK says:

    @Dave Schuler:

    Does that mean they feared a suit by some party other than the family? And, a suit on what grounds? The law didn’t require that life support be given to a dead person, and all parties agreed that Ms. Munoz was dead.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. Davebo says:

    I had to make that decision with my wife last year and if the state, the hospital or anyone else had tried to interject into the situation I would have gone ballistic.

    The decision itself is bad enough, even if it’s obviously the right choice. Getting flack from a judge or administrator is beyond my ability to comprehend.

    Like or Dislike: Thumb up 12 Thumb down 0

  9. that guy says:

    … “proper” ?

    This is a case for Inigo Montoya:

    “You Keep Using That Word, I Do Not Think It Means What You Think It Means”

    Like or Dislike: Thumb up 1 Thumb down 1

  10. grumpy realist says:

    And of course the so-called “pro-life” groups have jumped it, claiming that they want to “save the baby.”

    It’s not a baby, you idiotic fools. It’s a severely deformed fetus that’s trapped inside a decaying corpse. All the goo-goo ga-ga imagery you try to spark doesn’t change that reality.

    “Baby.” Right.

    Like or Dislike: Thumb up 11 Thumb down 1

  11. Mikey says:

    @grumpy realist: From their point of view, it’s a baby the moment the sperm enters the egg.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. KM says:

    The truly outrageous thing about all this is that they can (and already have, by some reports) bill Munoz for medical treatment he opposed because the government stepped in to determine it knew what was best. This poor man just lost his whole world; now they have the balls to charge him for what they did while torturing him for weeks by denying him the chance to follow his loved one’s wishes and grieve. They weren’t content to ignore and belittle him (and her!) by treating the expressed legal wishes of a consenting, intelligent and informed adult(s) as irrelevant; they used Mrs. Munoz as an experiment/test case for the pro-life cause and are slapping him with the fees on the way out the door.

    That takes chutzpah.

    Like or Dislike: Thumb up 7 Thumb down 0

  13. OzarkHillbilly says:

    This truly bad law, though, remains on the books.

    Yes. Long past time to unplug the “Texan Incubators Act”.

    @C. Clavin:

    What’s wrong with Republicans?

    A majority of them are better than you.

    Like or Dislike: Thumb up 2 Thumb down 4

  14. PD Shaw says:

    @Dave Schuler: The person responsible for drafting the legislation spoke out to say it wasn’t his fault? I’m shocked. The law specifically stated that pregnancy voided the consent to remove life support, which is not unusual. I’m guessing the judge had to receive medical evidence that either the woman was actually dead or not actually pregnant (non-viable) in order to avoid the law.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. Stonetools says:

    Seems to me this law is what you get when you elect a bunch of conservative Texas Republicans who pass laws based on science and rationality but on basis of anti-abortion dogma. The solution ? Unelect Republicans and elect Democrats.
    Unfortunately, the problem is that Texans believe this stuff, so I expect more of these cases. Maybe the turning point will that people will be so repulsed by the possibility of living in a state that permits this kind of thing that business will stop moving there. Then things may change.

    Like or Dislike: Thumb up 3 Thumb down 1

  16. PD Shaw says:

    According to this report, it sounds like she didn’t have a living will:

    Erik Munoz and other family members said the hospital should abide by her wishes — which weren’t written down but, they said, relayed verbally to them — and not have machines keep her organs and blood running.

    Probably a good time to remind people to find out what you need to do under your state’s law.

    Like or Dislike: Thumb up 3 Thumb down 0

  17. KM says:

    @grumpy realist:

    It’s a severely deformed fetus that’s trapped inside a decaying corpse.

    I had an argument with a very religious pro-life coworker on that very point. She tried to argue it was ethical to save the “baby” no matter what. I countered that if you could save a disabled 7month old from the biting cold outside by cutting open a 2 month old corpse and stuffing it inside, would you? Her horrified reaction was all the answer needed – she found it abhorrent and couldn’t conceive of why you would do that. The sheer body horror put her off but she was perfectly fine with the Munoz issue – couldn’t see the connection.

    Too many people hear the word “baby” and get stupid, fuzzy emotional connotations that have nothing to do with the situation at hand. This was not a baby – this was a science experiment on behalf of the state.

    Like or Dislike: Thumb up 5 Thumb down 0

  18. rudderpedals says:

    @PD Shaw:

    Probably a good time to remind people to find out what you need to do under your state’s law.

    Bears repeating. Please people, talk to your attorney and make sure your advance care directive and if you have one your medical proxy instruments are correct. Laws change, as we’ve seen.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. KM says:

    @rudderpedals:

    If I remember correctly, PD Shaw pointed out on a previous thread that she would have needed power of attorney to counteract the state’s decision and that a simple directive or Living Will arraignment wouldn’t have done the trick.

    Not an expert on this: is it standard to have power of attorney included in end of life decision making/directives or is that an extra step most don’t know they should take?

    Like or Dislike: Thumb up 3 Thumb down 0

  20. C. Clavin says:

    @OzarkHillbilly:
    A majority of them think man walked the earth beside dinosaurs…so no…I don’t think so.
    But you’re entitled to your opinion.

    Like or Dislike: Thumb up 4 Thumb down 1

  21. grumpy realist says:

    @KM: Or even further, feeding the disabled 7-month old flesh from the decaying woman because that’s the only nourishment around. Which is, in fact, what the State of Texas was doing in this case.

    Whassamatter? You’re “Saving a Life”, so everything in pursuit of that goal is dandy, right?

    So-called “pro-lifers” haven’t thought through the consequences of their belief system.

    Like or Dislike: Thumb up 3 Thumb down 0

  22. PD Shaw says:

    @KM: Yes, it was my opinion that TX durable power of attorney would have allowed her designee to end life-sustaining measures. My impression is that healthcare providers may sometimes give someone an advance directive at the time of admission. The power of attorney form is potentially more complicated I guess.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. PD Shaw says:

    It seems like the actual issue was that she was dead. Yet, the hospital contested this, and the legal question might be whether state law had clear standards for what constitutes death. I assume what likely happened is that the issue was presented to the hospital’s ethics panel, which might consist of a half dozen physicians that need to find time to get together with the attendings. There is probably some incentive to wait and see if conditions improve or deteriorate.

    If she had designated her husband with a durable power of attorney, then he could have ended this by operating from the assumption that she was alive. But that’s still only a result of a dispute as to whether she was alive.

    Like or Dislike: Thumb up 1 Thumb down 0

  24. rudderpedals says:

    @PD Shaw: @KM: The dead bit is a real deal breaker as far as how much (how little, actually) confidence I have in answering KM and for that matter, counseling around this particular situation. Powers of attorney and healthcare proxies and other grants of agencies die along with the principal, leaving the advance health care directive (living will) as the only bit still around. I’m beginning to think that it ought to be also dealt with in the person’s will along with whatever provisions are in there for disposition of the dead body.

    As a matter of custom I always offer to draft a living will and durable POA for clients coming in for estate planning. Too many elderly are abused and their families are torn apart by children fighting over mom’s assets and medical treatment when dementia strikes.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. Just 'nutha ig'rant cracker says:

    @PD Shaw: A number of years ago, I had the occasion to be admitted to an emergency room of a West Coast city noted for being a haven of leftist insurrectionists. While I was there, I had the need to reaffirm my positions on end-of-life issues and noted that my preference is “:do not resuscitate.”

    The reaction of the emergency room cardiologist was to attempt to have me declared incompetent to make the decision and impose his own–“take any measures available.”

    In another similarly leftist jurisdiction somewhat to the north, 3rd parties have the right to file friend of the court briefs for the purpose of overturning living will provisions.

    I wish I had your confidence in law.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. OzarkHillbilly says:

    @C. Clavin: A swing… and a MISS. Your sarcasm detector needs an upgrade. How long have you been reading my posts?

    Like or Dislike: Thumb up 0 Thumb down 0

  27. OzarkHillbilly says:

    @PD Shaw:

    It seems like the actual issue was that she was dead. Yet, the hospital contested this,

    The hospital agreed that she was dead. They contested what the law said.

    Like or Dislike: Thumb up 2 Thumb down 0

  28. Blue Galangal says:

    @OzarkHillbilly: I’ve been following this story with horror.

    1) “The hospital” (see below for the reason for the quotation marks) interpreted the law to mean that no matter what legal provisions she had made, the law overrode any and all of them. Even a durable power of attorney wouldn’t have been considered because “the hospital” maintained that the state’s interest in the life of “the baby” was paramount.

    2) The hospital’s general counsel – and this is a county hospital, not a private Catholic hospital – is an anti-abortion wacko who sits on the board of a “pro-life” organization. So every time you hear news reports that “the hospital said” they can’t do this or that “because of the law” keep in mind that law is being interpreted by said anti-abortion general counsel who is speaking for the hospital.

    Like or Dislike: Thumb up 1 Thumb down 0

  29. PD Shaw says:

    @OzarkHillbilly: What law? The law that everybody keeps pointing to is the advance care directive and she didn’t have one and she was dead anyway. Worst news coverage of an issue ever.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. KM says:

    @Blue Galangal:

    This is an egregious abuse of government power by petty functionaries that is somehow getting a pass from the people who would normally be screaming bloody murder at this point. Because its for a prolife cause, the state interfering in a private medical decision against the wishes of all parties for a nebulous “good” gets ignored. Because its a county rather then the Feds, its somehow not a ridiculous overreach and violation of “freedom!” – like county government is sacrosanct and not subject to the petty crap Federal is. Because a single nutcase in a position of power decides how to interpret the law to fit their specific agenda, they get away with causing a horrific situation that engenders enormous amounts of mental/emotional damage, wastes of legal and medical assets, unnecessary legal contests (and wasted court time) and a huge bill somebody is gonna have to pay (most likely the man they are doing this to against his will).

    This is the sort of thing where individuals who claim to value liberty should stand up and take notice, take action. They are abusing and twisting written law, disregarding legal precedent and taking things out of context to meet their end goals. I agree that even if all the ducks were in a row, with a POA, Living Will, clear and concise ironclad written directions spelled out so that a 2yr old could understand….. it wouldn’t have mattered.

    And it can happen to you if you are in the wrong hospital at the wrong time. Scary.

    Like or Dislike: Thumb up 4 Thumb down 0

  31. KM says:

    @PD Shaw:

    she was dead anyway

    Yep. The hospital didn’t (doesn’t) question that.

    She was dead. End of story, medically and legally…. or at least it should have been until someone decided to take an existing statue and apply it where it really didn’t belong. The law in question was misapplied simply because those in power wanted to save “the baby” after the fact.

    Mr. Thompson wrote in court papers that the Texas Penal Code’s definition of an individual stated that an unborn child was alive at every stage of gestation, from fertilization until birth. And he pointed to a bill backed by Gov. Rick Perry that lawmakers passed last year that banned abortions after 20 weeks of pregnancy, based on the theory that the fetus can feel pain at that stage.

    The assumption was that somehow even if the mother was dead, the child was not. This is absurd as the two are in a linked system – what happens to the mother happens to the child. They used the legal definition to ignore the more medical one – dead is dead. They used that legal fiction to disregard normal procedure (next of kin, etc) in order to accomplish their goal. Without written stated wishes, the default falls to the next of kin/her husband, not the hospital, in Texas yes? Not a legal scholar by any stretch but this seems disingenuous at best and outright ghoulish at its worst to circumvent this to run a macabre science experiment.

    Like or Dislike: Thumb up 3 Thumb down 0

  32. PD Shaw says:

    “Death” is a legal and medical term. The relevant law for determining whether someone is dead in Texas is here: Section 671.001 She was never pronounced dead. The court’s finding was that she should be pronounced dead on the basis of the medical and legal information supplied the judge.

    Like or Dislike: Thumb up 2 Thumb down 0

  33. rudderpedals says:

    @PD Shaw: This is so macabre isn’t it? While hooked up to machines her living/not living state is in a sort of legal quantum superposition where she’s both dead and not-dead until a physician collapses the probability wave by observation. Legal purgatory?

    Like or Dislike: Thumb up 0 Thumb down 0

  34. KM says:

    @PD Shaw:

    And the one-two shuffle doesn’t strike you as a problem? They acknowledge she’s brain dead but never formally declare it to maintain a legal fiction and thus control over the situation? That everyone knows what happened but since no one admits it in a court of law, we can all just pretend it’s copacetic?

    when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function.

    That’s where the charges of abuse of power are coming from. Deliberately withholding the official death pronouncement even though she objectively met all the relevant medical criteria for the condition from the start solely to meet a legal statue to save the “child” is, in less delicate terms, utter bullshit. The hospital has never denied she is brain dead when questioned, just never did the proper legal procedures so they could do what they wanted.

    That sounds very shady from an ethical point of view, even if it falls within the boundaries of legal technicalities. What is the purpose of the “confusion” around her condition if not to cloud an issue? Does she met the criteria for the diagnosis or not? If she does (and the hospital does not deny she does), then why was the diagnosis not made if not for a non-medical reason?

    Like or Dislike: Thumb up 3 Thumb down 0

  35. CSK says:

    I want to point out that the hospital itself in court agreed that the fetus was “non-viable,” meaning it would not survive birth. (The fetus was hydrocephalic, so badly deformed in the lower extremities that the sex couldn’t be determined, and had a possible cardiac defect.)

    So a dead mother and a dead fetus were being kept on organ support. To what purpose? There was never going to be a happy ending to this story, and everyone involved knew it.

    Like or Dislike: Thumb up 4 Thumb down 0

  36. Gromitt Gunn says:

    @PD Shaw: So, basically, she was Shrodinger’s corpse.

    Like or Dislike: Thumb up 1 Thumb down 0

  37. Blue Galangal says:

    @KM: EXACTLY. Thank you!

    Like or Dislike: Thumb up 1 Thumb down 0