Baby Tinslee Lewis was born in late February 2019 with a rare heart defect and was placed on extracorporeal membrane oxygenation, a machine that fulfilled the functions of her heart and lungs. By the time she was ten months old, Cook Children’s Medical Center in Fort Worth, Texas, stated that her condition required long-term life-sustaining treatment and that simple palliative care such as feeding and bathing could cause serious complications. Her physicians wanted to terminate their care for Tinslee because they believed that continuing care was only postponing an inevitable death, but Tinslee’s mother wanted to continue treatment.
Cook Children’s Hospital determined that further treatment of Tinslee would be futile, and her mother was forced to begin a search for other providers willing to accept the child. After contacting over twenty hospitals, none were willing to accept a child in such critical condition. On December 4, 2019, Cook Children’s Hospital officially reported that no facilities were willing to accept Tinslee, thus triggering a ten-day waiting period required by law under the Texas Advanced Directives Act (TADA) before life-sustaining treatment could be terminated without parental consent.
If, by the end of the ten days, Tinslee’s mother could not find a facility willing to accept her, then Cook Children’s Medical Center could stop treatment, effectively terminating her life. Tinslee’s family secured a temporary restraining order against the hospital until January 2, 2020, at which time the hospital was free to terminate care. Tinslee’s family, continuing to fight for her life, argued her case to continue treatment in front of the Texas State Court of Appeals in Fort Worth on February 4, 2020. As of March 1, 2020, the court has not issued an opinion.
Medical futility disputes like Tinslee’s can be some of the most frustrating problems facing healthcare professionals. This article will consider medical futility disputes such as Tinslee’s and how the faulty allocation of decision-making power currently plaguing these disputes can be alleviated by incorporating elements of the precautionary principle. Part I discusses factors common to futility disputes that make such disputes particularly contentious. Part II discusses the definitional approach to medical futility disputes and the shortcomings of this method. Part III discusses the modern process-based approach to solving medical futility disputes and its shortcomings. Part IV discusses the precautionary principle and its role as a decision-making tool for environmental protection. Finally, Part V shows how the major problems discussed in Parts II and III are solved by applying the framework of the precautionary principle to medical futility disputes.