Texas court overturns ruling on resuscitation of premature baby

Ten years after Sidney Miller was born, the prognosis for extremely premature newborns remains difficult to predict.

By Vida Foubister, amednews staff. Feb. 5, 2001.

A Texas appellate court ruling in December 2000 essentially excludes parents from decisions about withholding treatment from their premature newborn unless the infant is considered to be "certifiably terminal."

The 14th Court of Appeals overturned a trial court's finding that The Woman's Hospital of Texas in Houston and its parent company, now HCA -- The Healthcare Company, was liable for resuscitating a 23-week-gestation infant against her parents' wishes. A jury in the lower court case had awarded the couple $29.4 million in past and future medical expenses, $13.5 million in punitive damages and $17.5 million in prejudgment interest. The physicians involved were not named in the lawsuit.

Case at a glance

After Karla Miller was admitted to the hospital with premature labor, her ob-gyn told Miller and her husband, Mark, that their daughter was unlikely to survive. Based on this consultation they chose not to pursue any aggressive treatments.

Then the hospital informed them it was obligated by law and an unwritten policy to administer life-sustaining procedures even without their consent. The hospital still stands by its decision to resuscitate Sidney, who is now 10 and has severe physical and mental disabilities.

"Woman's Hospital of Texas acted appropriately in providing basic life-sustaining care for Sidney Miller," said Linda Russell, CEO of the hospital, in a statement released after the Dec. 28, 2000, verdict. "The doctors and nurses were legally, morally and ethically obligated to provide care to Sidney Miller."

Not so, say many doctors and ethicists. "Twenty-two to 24 weeks is a terribly complicated period of time -- both to make the gestational age assessment and to speak with any ... certainty about outcome," said Brian S. Carter, MD, a neonatologist and associate professor of pediatrics at Vanderbilt University in Nashville, Tenn. "It's a time at which great deference should be given to parental wishes."

Despite advances in neonatology in the 10 years since Sidney was born, Dr. Carter said that only 10% to 15% of very premature infants survive today. "When you're talking 22, 23, even 24 weeks' gestation, every child would be terminal if we chose not to act," added Steven Leuthner, MD, assistant professor of bioethics and pediatrics at the Medical College of Wisconsin in Milwaukee. "If we decide to act, we can't predict who's going to survive and who's not going to survive."

The appellate court, in its majority opinion, fails to address this uncertainty. Instead, it emphasizes that the state's Advance Directives Act only "allows parents to withhold or withdraw life-sustaining medical treatment from a child where the child's condition has been certified in writing by a physician to be terminal."

"It seems to presuppose that there is a clear black-and-white line between those [infants] who are clearly going to die and those who are clearly going to survive," said E. Haavi Morreim, PhD, professor in the Dept. of Human Values and Ethics at the University of Tennessee Health Science Center in Memphis. "The court did not appreciate the nature and magnitude of medical uncertainty and the burdens that are imposed on the child in order to pursue what is sometimes a very small chance of survival."

Thus the court's ruling is in direct conflict with the Child Abuse Prevention and Treatment Act Amendments of 1984, which are commonly referred to as the Baby Doe Regulations. This federal legislation limits acceptable withholding of treatment to situations in which the infant is chronically and irreversibly comatose, where treatment would prolong dying or not correct all life-threatening conditions, or treatment would be virtually futile and inhumane.

Parental decision-making

Another fact at issue in this case, and one argued by dissenting Justice Maurice Amidei, was that the medical treatment was not urgent. During the 18 or more hours between Karla Miller's admission and Sidney's birth, the hospital did not seek to obtain a court injunction to override the parents' wishes.

"There's some extremely limited circumstances under which decision-making may be, on an emergency basis, taken away from parents," said Nancy King, professor of social medicine at the University of North Carolina School of Medicine in Chapel Hill. "Most of those [circumstances] build in some other kind of review, like needing to get a court order or needing to have social services step in. Here it was the hospital saying, 'Well, the parents can't do this and we can' so there was really no oversight."

Not addressed by the court were the countless other decisions that were made to continue aggressively treating Sidney, who remained hospitalized for seven months.

"Often times in neonatology there is an urgency to intervention," Dr. Carter said.

"But there are points throughout the hospitalization in which there's a greater period of time to reflect and to consider the future. If those opportunities are overlooked, and people don't take advantage of them to sit down and have a dialogue with the parents about what the quality of the child's life is or is likely to be, then there's been an error of omission committed," he said.

Even though parents might not understand all the ins and outs of neonatology, they bring a critical dimension to these discussions, King said.

"The best interest of a child always has both technical components and lived components, and, if you don't let the parents speak about those lived components, then the technology really becomes empty," she added.

Though the appellate court's ruling has jurisdiction only in Texas, some fear that the case might have broader implications. Still, Dr. Leuthner said it's not going to change the way he practices.

"I strongly believe in open, negotiated discussions with parents on these issues," he said. "If anything, [the Miller case] will encourage me to be more open-minded about how we should respond."

ADDITIONAL INFORMATION:

Case at a glance

HCA Inc., et al. v. Karla H. Miller and J. Mark Miller

Venue: 14th Court of Appeals, Houston
Case No.: 14-98-00582-CV
History: Karla and Mark Miller requested that no heroic measures be performed to save their daughter, born Aug. 17, 1990, at 23 weeks' gestation. The Woman's Hospital of Texas chose to resuscitate Sidney Miller anyway, citing their legal obligation to do so. Sidney, now 10, has severe physical and mental impairments.
Decision: The majority opinion, filed Dec. 28, 2000, overturned the trial court's finding that the hospital's parent company, HCA -- The Healthcare Company, was liable.
Potential impact: If this decision withstands an expected appeal, hospitals, physicians and other health care providers in Texas now have the authority to make treatment decisions that are contrary to parents' wishes unless a child's condition is considered "certifiably terminal."