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Posted on July 10, 2020 at 3:30 AM

We are still waiting for the decision and opinion from the Texas Second Court of Appeals in Tinslee Lewis v. Cook Children’s Hospital. The case challenges the constitutionality of the dispute resolution provisions in the Texas Advance Directives Act. In the meantime, here is the audio from the oral argument.

The judges suggest there is state action because TADA gives hospitals “super governmental immunity.” Plus, the hospital is going something only the state can do. It the “exclusive prerogative of the state to involuntarily and intentionally deprive someone of their life.”

The judges also suggest the hospital is not a neutral decision maker because it focuses heavily on the “conscience rights” of its clinicians. The court notes that this means the hospital has an interest other than, and in conflict with, its patient Tinslee. 

Furthermore, the judges were concerned that the hospital has no generally accepted standard by which to determine that treatment is “inappropriate.” Consequently, hospitals operate in an ad hoc fashion and different hospitals employ different standards.

Finally, Cook Children’s notes that even if the court strikes down Section 166.046, it alternatively has the authority to stop Tinslee’s life-sustaining treatment under 166.045(c) and 166.051.

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