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The Texas Supreme Court heard arguments last week in a case that will require a gut-wrenching answer to a highly emotional question: Who should choose whether to resuscitate a baby born with severe health problems, the parents or a hospital’s medical staff? As 20 disabled activists, 120 law students and one former Texas governor looked on, the high court considered Sidney Ainsley Miller, et al. v. HCA Inc. in a packed lecture hall at the Baylor University School of Law in Waco, Texas, on Wednesday. The case of first impression in Texas involves a mother and father who successfully sued Houston’s Woman’s Hospital of Texas for negligence, winning $43 million after arguing the hospital ignored their wishes not to resuscitate their baby. The parents allege Sidney suffered severe impairments because of the resuscitation. The hospital appealed, saying it provided legally mandated life-sustaining medical treatment that gave the baby a chance for survival. Sidney’s mother went into labor four months early. After attempts to stop labor were unsuccessful, Karla and Mark Miller decided — before Sidney was born — that Sidney should not be resuscitated after her birth, but doctors disregarded the parents’ wishes. At the time of her birth, Sidney weighed less than 1.5 pounds. She is mentally retarded, blind and suffers from cerebral palsy. Now nearly 12, Sidney requires 24-hour care. David Keltner, who represents the Millers, told the Texas Supreme Court that Sidney’s parents were well informed by doctors 11 hours before birth that Sidney would suffer severe impairments if she were resuscitated. Under Texas Family Code � 151.003, the parents have the right to consent to medical treatment of their child. If, before birth, the parents refuse such treatment but the doctors insist, the statute and case law say that Child Protective Services may be called in to decide the issue, Keltner argued to the court. “What we propose is the parents get the first opportunity on what to do with their child” before the child is born, argued Keltner of Fort Worth, Texas’ Jose, Henry, Brantley & Keltner, noting that their wishes were not heeded. “The state has the right to intervene.” But Mike Hatchell, who represents HCA Inc., the parent company of the hospital, argued the court faces a different question: Can anyone decide the course of treatment of a child before it’s born? Hatchell of Tyler, Texas, said decisions about Sidney’s treatment should have been made after her birth. The doctors did the right thing when they chose to revive her, seconds after she was born, Hatchell said. “Sidney has the right to receive the same treatment as any other person.” EMERGENCY DECISIONS The justices were quick to interject numerous questions during argument. One of the first questions was how would a doctor or hospital litigate a parent’s decision made before the child’s birth to refuse medical treatment — an action that likely would take the parties to district court. Justice Priscilla Owen pondered how a court would handle a time-sensitive decision regarding the birth of a child that may require a lengthy hearing and testimony from doctors and other medical experts. Yet Keltner responded that those hearings are exactly what � 151.003 of the Texas Family Code and case law envision. “Had they gone to court, don’t you think the court would have said ‘Let the doctor decide?’” Owen asked Keltner. “Heavens, no,” Keltner responded. “Knowing that [resuscitation] would cause horrible damage to a child.” Justice Harriet O’Neill asked Keltner if he believed doctors should be allowed to make medical calls on children in emergency situations. “Do you agree that if it is an emergency situation that it should be up to the doctor?” O’Neill asked. “The issue of emergency is an intensive factual question,” Keltner replied. “A hospital could always create an emergency situation.” Answering a similar question, Hatchell was more pointed. “These decisions are best made when a child has been born and can be assessed as opposed to a statistic,” Hatchell said. Hatchell argued that Texas Family Code � 151.003 should not apply to Sidney because she was not born at the time the Millers decided not to resuscitate her. Rather, Hatchell argued that the hospital had the right to resuscitate Sidney under the federal “Baby Doe Regulations,” which mandate that states provide life-sustaining treatment to newborns under certain conditions. States that do not comply risk being cut off from federal funding. In an interview after arguments, Keltner says he never predicts how an appellate court will rule based on their questions. But if the court follows the Texas Family Code, his side will prevail, Keltner says. “I think the statutory issues are clear,” Keltner says. “The family makes the decision.” Hatchell disagrees. This is not a decision that will be made by looking at decades of prior rulings — it must be a fact-based decision, he says. “It’s such a complex issue that it can’t go on common law,” he adds. “It’s a case-by-case basis.” ADVOCATES AND PARENTS For the past two years the court has taken to the road to hear arguments at various Texas law schools. Last week marked the second time the high court has heard arguments at Baylor. Before the 10:30 a.m. hearing, disabled advocates, who say they oppose giving parents the right to terminate the life of a child who is born disabled, gathered on the steps of the law school. They gave interviews with local media, handed out yellow leaflets stating their concerns about Miller and held up signs stating “Infanticide is Homicide.” “They are basically saying disabled children don’t have any value,” says Bob Kafka, national organizer of ADAPT, a disabled advocacy organization. “Once the child is born, it has a legal right to life.” Mark Miller, Sidney’s father, says no one is more supportive of the rights of the disabled than he and his wife. Both care for their disabled daughter by themselves. They sued the hospital to ensure they will have enough money to care for her for the remainder of her life. So far, the Millers have spent more than $1 million caring for Sidney. “Nothing the supreme court can do can make our child well,” Miller says. “We’re pleased to have our day in court.” There’s one thing the court didn’t hear, says a friend of the Miller family. They didn’t hear what the Millers went through before deciding they didn’t want their baby resuscitated, says Mark White, a former governor of Texas who watched the arguments with the Millers. Notes White, “We didn’t hear anywhere here that this decision was made after a long and prayerful consideration.”

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