ROBERT SIEGEL, HOST:
Tomorrow, a Texas court will hear the lawsuit of Erick Munoz who wants a Fort Worth Hospital to take his wife, Marlise, off life support. Ms. Munoz suffered what's believed to have been a pulmonary embolism in November. She's been unresponsive ever since. The hospital, John Peter Smith Hospital, will not release a diagnosis to the public. But her husband says she is brain dead and he says the Munozes, both paramedics, had discussed such a possibility in the past and he says that she did not want to be kept alive by machines.
Well, the hospital says it cannot take her off life support because Marlise Munoz is pregnant and the fetus still has a heartbeat. The fetus is in its 22nd week of development and, according to a statement issued by Munoz's lawyer, the fetus has deformed lower extremities and swelling of the brain.
Joining us to talk about this case is Tom Mayo, associate professor of law at Southern Methodist University. Welcome to the program.
TOM MAYO: Thank you.
SIEGEL: And first, the hospital says to take Mrs. Munoz off life support would violate Texas law, a law that you helped write as an advisor to the legislature, I gather. Are they correct?
MAYO: Well, I don't think so. The law that they say compels them to continue ICU-level support for Ms. Munoz is the so-called Pregnancy Exclusion Provision in our Advanced Directives Act. And I think the Pregnancy Exclusion Provision doesn't apply because I don't think the act applies to someone who is dead. And this is all assuming now that the husband has it right and that we'll see confirmation of her brain death as a result of the hearing.
SIEGEL: But isn't it the point of that exclusion to protect the fetus, that is it's not in there to protect the pregnant woman, is it, the mother?
MAYO: Well, yes, that's the purpose. But technically, I would say the statute does not compel this. If you're relying on the statute, you're just relying on the wrong thing.
SIEGEL: What kind of liability might they face if they took Marlise Munoz off life support and her fetus died?
MAYO: Well, I'm not sure how the hospital has analyzed their liability situation. In theory, at least, there's civil liability, there's criminal liability and there's discipline from a licensing board. I'm not at all convinced that those are serious concerns or realistic concerns in this case if they were to do what Mr. Munoz has asked.
SIEGEL: Has Marlise Munoz slipped into a zone that isn't quite covered by the law? That is, she is someone who is no longer alive by standards we would recognize, but she is alive enough to sustain a fetus?
MAYO: Well, yes. There's enough of her body that is still functioning that even though she is dead, as she would be recognized as dead in every state in the Union, there is a kind of no man's land that's created here, and it's really created by the pregnancy. I think the law just really doesn't have an explicit answer for this question.
SIEGEL: Professor Mayo, one other question. She is - that is to say Marlise Munoz is said to be - or her husband says she is brain dead. How does that condition differ from being in a persistent vegetative state or being in a coma?
MAYO: Those later two conditions are states of unconsciousness in a living patient. Brain dead is when there is a complete cessation of all brain activity, including the brain stem.
SIEGEL: If, in fact, she were in a persistent vegetative state and not brain dead, would that alter the entire legal equation for the hospital, given that, as you said, the argument is based on the definition of a patient?
MAYO: If she were in a persistent vegetative or permanent vegetative state, that would qualify as an irreversible condition, and she, of course, wouldn't be able to speak for herself. At that point, the subchapter we're talking about would apply. And the pregnancy exclusion language would apply as well. I still believe that if the statute applied in that circumstance, the hospital always has a choice to either act in a way that preserves its legal immunities or act in a way that respects the wishes of the patient and/or her surrogate decision maker. So there's still a choice.
SIEGEL: Professor Mayo, thank you for talking with us today.
MAYO: My pleasure.
SIEGEL: That's Tom Mayo, associate professor of law at Southern Methodist University in Dallas, Texas, talking with us about the case of Marlise Munoz.