A Tarrant County judge will hear the lawsuit against John Peter Smith Hospital on Friday, brought on by the family of a pregnant, brain-dead Haltom City woman being kept artificially alive on life support against the family's wishes.
Marlise Munoz, 33, developed a blood clot, and in November, before controversy surrounded her brain-dead condition, Munoz was taken to JPS Hospital, 14 weeks pregnant with her second child.
The hospital disagreed with the family's wishes to have her removed from life support, citing a Texas law that requires a pregnant woman to be kept on life support until the fetus is viable at about 24 to 26 weeks.
Erick Munoz, Marlise's husband, filed a two-page sworn affidavit Thursday.
He begins by stating, "Since my wife's death on November 26th, 2013, I have had to endure the pain of watching my wife's dead body be treated as if she were alive."
He goes on to say he is positive that his wife Marlise is dead and lists several reasons, saying in part, "When I bend down to kiss her forehead, her usual scent is gone, replaced instead with what I can only describe as the smell of death."
He also says, "Her limbs have become so stiff and rigid due to her deteriorating condition that now, when I move her hands, her bones crack and her legs are nothing more than dead weight."
The Tarrant County District Attorney's Office represents JPS Hospital, and its statement to the court directly contradicts Erick Munoz, confirming the unborn baby still maintains a heartbeat.
It states, "His argument is that a dead person cannot receive life sustaining treatment. His position, however, ignores consideration of the unborn child."
One of the co-authors of the law keeping the woman alive thinks the law is being misinterpreted, expressing how he feels in an affidavit.
SMU law professor and medical ethicist Tom Mayo was on the committee that drafted the law that goes to the heart of this case.
"I think the family's wishes should be respected," Mayo told FOX4. "I think that we're in a situation where the law does not drive the outcome that we've seen so far."
According to a statement from the family's attorneys, medical records show the condition of the roughly 22-week-old unborn child as abnormal and deformed.
While Mayo says the condition of the fetus may be an ethical concern on whether to continue life support, other experts say it's likely not a legal one.
"Viability still cannot be determined for another two to four weeks," said attorney Jessica Frankland. "So, really, just because there are health issues, or potential for disability, that does not mean the child is not viable."
The hearing is set to take place in Perry-nominated state district judge R.H. Wallace's courtroom, where there's not much legal gray area.
"If the judge decides she should be taken off life support, any sort of appeal would probably be moot because if she's taken off life support, Mrs. Munoz, obviously the fetus will pass away…nothing can really be done at that point," said Frankland.
The judge has to decide between two competing statutes under Texas health and safety code; one that supports the family's viewpoint, and one that supports the hospital's viewpoint.
The judge will have to make a decision on what the legislature intended.
KDFW FOX 4
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