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All sides in HCA Inc. v. Miller agree that this is the most tragic of cases — and that the Dec. 28, 2000, decision handed down by the 14th Court of Appeals in Houston likely will not be the last word in the matter. The appellate court decision overturns an award of nearly $43 million granted by a Houston jury in January 1998 after it determined that the Nashville-based hospital chain was liable in tort for the life-saving medical procedures delivered to a premature baby without parental consent. But the reversal was hardly a mandate, earning the agreement of only two members of the three-justice panel. Chief Justice Paul C. Murphy and Justice Richard H. Edelman ruled that HCA Inc. had no legal duty to refrain from resuscitation in this instance and no duty to institute policies prohibiting such resuscitations. According to the opinion, however, not even the majority believed it was treading on the firmest legal ground. “Although this issue has implications which extend well beyond the facts of this case, the parties have cited, and we have found, no authority which directly addresses it,” wrote Edelman. To reach its conclusion, the court balanced three legal and policy interests that it described as “fundamental and competing,” including consent requirements under the Texas Family Code and the Advanced Directives Act, the duty to provide medical care under the Family Code, and the policy interests of the state to guard the well-being of minors. The court also seemed to comment that these legal and policy interests enabled and restrained its decision: “A compelling argument can be made to carve out an exception for infants born so prematurely and in such poor condition that sustaining their life, even if medically possible, cannot be justified.” But the court concluded that it was “not within the province of an intermediate appellate court to, in effect, legislate in that manner.” Justice Maurice Amidei delivered a strong dissent, calling the majority’s discussion of the Advanced Directives Act irrelevant and disagreeing with its conclusion that a court order was not needed to override the parents’ refusal to consent to resuscitation. “The court of appeals wrestled with the issues, and they didn’t try to duck the hard problems,” says appellate specialist David Keltner, of Fort Worth’s Jose, Henry, Brantley & Keltner, who handled the plaintiffs’ appeal. “I think there is no doubt that the opinion invites the Texas Supreme Court to look at this issue, and we’re going to take the court up on its invitation.” A DIFFICULT CHOICE Sidney Ainsley Miller was born on Aug. 17, 1990. Considered a “micro-preemie,” her gestational age was approximately 23 weeks, and she weighed less than 19 ounces at birth. Her parents, Mark and Karla Miller, had rushed to Women’s Hospital of Texas because Karla was experiencing symptoms of premature labor. According to the opinion, their obstetrician and a neonatologist told them at that time that if their baby was born alive, she would suffer severe impairments. The Millers then orally requested that no heroic measures be performed on their baby after birth. “The choice that the parents were given was to leave the baby alone and give her a 50/50 chance for a normal life, or treat her and give her a 98 percent chance of a severely impaired life,” explains Michael Sydow, of Houston’s Verner, Liipfert, Bernhard, McPherson & Hand, who represented the Millers before the trial court. “So they opted to give this child a chance for a normal life.” After further consultation, however, the Millers were informed that if their baby was born alive and weighed more than 500 grams, the Women’s Hospital medical staff would be obligated by law and hospital policy to administer life-sustaining medical procedures — even if such treatment was against the Millers’ wishes. In the 11 hours between Karla Miller’s admittance and the delivery of her baby, it is undisputed that the hospital neither requested nor received a court order regarding this decision. When Sidney was born, the attending neonatologist determined she was viable and instituted resuscitative measures. The opinion states that, “although Sidney survived, she suffers, as had been anticipated, from severe physical and mental impairments and will never be able to care for herself.” According to an August 1998 article in Ladies’ Home Journal, called “Born Too Soon,” Sidney’s impairments include a severe form of cerebral palsy that contracts her muscles into a near-fetal position and prevents her from controlling any part of her body except her left hand; total blindness in one eye; a field of vision in the other eye that is limited to 2 or 3 feet; and the mental aptitude of a 3 month- to 18-month-old baby. “These parents were asked to make a decision that no parent should have to make,” Keltner says. “And then this decision was taken away from them after they made it — contrabanded by the hospital.” The Millers alleged that HCA was vicariously liable because its doctors acted without consent and according to a policy mandating resuscitation of newborns weighing more than 500 grams even without consent, and that HCA was directly liable because it did not have policies that prevented such action absent consent. Keltner is quick to point out that the Millers did not sue the doctors that cared for Sidney, nor did they allege medical malpractice or mental anguish. Their sole concern, says Keltner, was to ensure continued care for Sidney — especially if she outlived them. “This is a tough case and one where you could have great sympathy for the plaintiff,” says HCA appellate lawyer Shannon Ratliff, a partner in the Houston office of Akin Gump Strauss Hauer & Feld. “Our position all along was that those were simply instructions that we were not only not bound to follow, but they were simply instructions that we could not follow.” HCA trial counsel John Serpe, of Houston’s Sheehy, Serpe & Ware in Houston, also is pleased with the latest ruling. “We felt like the decision supported the principle that doctors shouldn’t be penalized for giving life-sustaining care to infants,” he says. The practical application of this opinion, however, might mean that hospitals will no longer need to seek a court order before giving treatment in such situations over the objections of the parents, says law Professor Mary Anne Bobinski, director of the Health Law and Policy Institute at the University of Houston Law Center. “This is a continuing issue because, as the court notes, with the attempts to resuscitate babies, there is the idea that physicians are pushing the envelope of survivability,” Bobinski says. “This issue had not been at the top of the legislative agenda for this coming session, but the Legislature may be interested in this opinion; it may cause legislators to take a second look at the way [the Advanced Directives Act] is written.” Ratliff acknowledges that this case carries many obvious and important public policy overtones. “You can’t very well put a health care provider in a situation where they’re damned if they do and damned if they don’t,” he contends, “And that’s exactly where HCA was.”

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