Rebuttal From Dr. Truog FREE TO VIEW

Robert D. Truog, MD
Author and Funding Information

Affiliations: Dr. Truog is Professor of Medical Ethics, Anesthesiology, and Pediatrics, Harvard Medical School, Senior Associate in Critical Care Medicine at Children's Hospital Boston, and Director of Clinical Ethics at Harvard Medical School.

Correspondence to: Robert D. Truog, MD, Children's Hospital, MSICU Office, Bader 6, 300 Longwood Ave, Boston, MA 02115; e-mail: robert.truog@childrens.harvard.edu

Reproduction of this article is prohibited without written permission from the American College of Chest Physicians (www.chestjournal.org/site/misc/reprints.xhtml).

© 2009 American College of Chest Physicians

Chest. 2009;136(4):972-973. doi:10.1378/chest.09-1270
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I want to express my appreciation to Dr. Fine for participating with me in this debate about the TADA. In these last few words, I will comment on the data that Dr. Fine cited about an estimated 974 futility consults that were reported to the Texas legislature in 2005.1 First, only 65 10-day letters were issued in these cases, indicating that > 93% were resolved by the usual methods of conflict resolution that are available throughout the country. This is good news, but does suggest that the overwhelming majority of such cases can be resolved without controversial approaches like the TADA.

Second, among these 65 patients, 16 were ultimately transferred to other institutions. While suggesting that this safeguard mechanism is functioning well, it also raises interesting unanswered questions about how the Texas hospitals are managing these conflicts. Are hospitals with religious affiliations systematically accepting these difficult patients from the more secular hospitals? What explains the seemingly disproportionate use of the TADA in urban hospitals caring for underserved populations? One unfortunate aspect of the Texas legislation is that, even after 10 years of use, no systematic data have been collected about how the TADA is being implemented. Around these critical questions, we truly know very little about the Texas experience.

Third, 22 of these 65 patients died within the 10-day waiting period, confirming that further treatment of these patients was futile in the physiologic sense. But, to the extent that these imminent deaths could have been anticipated, one must wonder about the wisdom of putting families through a contentious legal process without any change in the outcome.

Fourth, in 27 cases the disputed treatment was unilaterally withdrawn. My central theme in this essay is that ethics committees should not have unchecked authority to make these life-and-death decisions. Under the TADA, the judge is effectively muzzled from engaging in the decision itself, from expressing the view “I think the ethics committee made a mistake here.” Dr. Fine has argued that this is a virtue of the TADA, since it prevents judges from meddling in the “medical facts” of the case. But, his position simply highlights the greatly mistaken assumption that these cases hinge primarily on the “medical facts.” In truth, the conflicts in these cases almost always center on disagreements over values and beliefs. And while physicians are legitimately the experts on the medical facts, they are not experts on adjudicating values; that is why we have a legal system.

What would have happened in these 27 cases if they had occurred outside of Texas? It is impossible to know, of course, but it is likely that the clinicians would have struggled through most of these cases without any clear resolution. And here, perhaps, is where Dr. Fine and I most fundamentally disagree. I would rather have a situation in which < 3% of futility disputes go unresolved, than accept a law that effectively terminates these conflicts at the expense of systematically undermining important Constitutional and ethical principles.


Financial/nonfinancial disclosures: The author has reported to the ACCP that no significant conflicts of interest exist with any companies/organizations whose products or services may be discussed in this article.

Ramshaw E. Bills challenge care limits for terminally ill patients. Dallas Morning News. 2007; 215




Ramshaw E. Bills challenge care limits for terminally ill patients. Dallas Morning News. 2007; 215
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