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In one of the most wrenching issues it has decided in years, the Texas Supreme Court ruled on Sept. 30 that a hospital was not liable for reviving a premature newborn child — against the parents’ wishes — even though the resuscitation resulted in severe injuries to the baby. In a case of first impression, the court had to decide in Sidney Ainsley Miller, et al. v. HCA Inc. et al. whether the parents or the hospital had the authority to make the decision to resuscitate the baby, who was born with severe health problems. The parents, Karla and Mark Miller, successfully sued Houston’s Woman’s Hospital of Texas, a subsidiary of HCA, for negligence and battery in 1998, winning $43 million from a jury after arguing the hospital ignored their pre-birth instructions not to resuscitate their baby daughter, Sidney. A physician had advised the parents that if their child was revived, she would likely suffer permanent physical and mental injuries, alleges their attorney, David Keltner. The parents did not sue Sidney’s doctors and instead targeted the hospital, whose procedures, they alleged, directed their child’s treatment. The hospital successfully appealed the decision to Houston’s 14th Court of Appeals, which overturned the award on Dec. 28, 2000, in a 2-1 decision. The 14th Court found that the hospital had no duty to refrain from resuscitating the baby because the Millers had no right to deny the medical treatment given to Sidney. But in a unanimous opinion written by Justice Craig Enoch, the high court affirmed that 14th Court’s ruling, but on different grounds. The Texas Supreme Court found that “emergent circumstances” provide an exception to the general rule that a physician commits a battery by providing medical treatment to a child without the parents’ consent. Enoch noted that the doctor who delivered Sidney could not make a proper evaluation on whether to revive her until after she was born. “As such, the exception is narrowly circumscribed and arises only in emergent circumstances when there is no time to consult the parents or seek court intervention if the parents withhold consent,” Enoch wrote. Justices Harriet O’Neill and Steven Wayne Smith did not participate in the decision. “HCA cannot be held liable for the Miller’s battery and negligence claims,” Enoch concluded. “We are not presented with and do not decide the question of whether the rule we have announced applies to adults.” EMERGENCY CALLS Keltner, who represents the Millers, says he agrees with the court’s ruling with one exception — there was no emergent circumstance that justified the decision to revive Sidney. “If the facts supported it, it’s not a bad opinion at all,” says Keltner, a partner in Fort Worth’s Jose, Henry, Brantley & Keltner. “But the facts don’t support the conclusion that this was an emergent circumstance.” Keltner alleges that hours before Sidney was born, the hospital asked for the Millers’ consent to revive Sidney if necessary, which they refused to give. Also, the jury that decided in favor of the Millers was never asked to determine if the doctor made his decision under “emergent circumstances” as the state Supreme Court noted in the opinion. “If they [HCA] thought this was an emergency, why were they seeking consent 11 hours before the delivery?” Keltner asks. “I regret that the court made a finding as a matter of law that this was an emergency,” says Keltner, who intends to ask the high court to reconsider the case. “I appreciate that the court recognized that the issue of whether this was an emergency was not presented to the jury. But I disagree strongly with the court that this was an emergency as a matter of law.” Mike Hatchell, of Tyler’s Hatchell P.C. who represented HCA at the Texas Supreme Court, did not return two calls seeking comment before presstime on Oct. 2. John Serpe, a partner in Houston’s Sheehy, Serpe & Ware who represented HCA at trial, says the high court made the right call. “We always thought that there should be no liability for a doctor who gives life sustaining care to a baby,” Serpe says. “And we were disappointed that the trial judge didn’t give us a summary judgment on that because our feeling is that the law in Texas favors doctors who give life sustaining treatment.” Whether the decision to resuscitate Sidney was an emergency call was a fact disputed at trial, Serpe says. “But I think the state Supreme Court and the Court of Appeals dealt with the fact that when you’re dealing with an emergent circumstance, the proper thing is to provide the proper treatment and help sustain the baby’s life.” Two experts who’ve been following Miller say the opinion provides much-needed protection for doctors who must make split-second decisions when delivering babies. “It seems to me that they’ve decided the case absolutely correctly,” says John Robertson, a professor at the University of Texas School of Law who teaches bioethics and has been following Miller closely. “The idea that parents could have treatment withheld from their child before the child was born and a proper assessment of the child could be made seemed to be an unwise position to take,” Robertson says. “What this would have meant if it had gone the other way is anytime parents tell a doctor not to provide medical care after the birth of their child, the doctors would have to do it or face a huge judgment,” Robertson adds. Scott McQuarrie, a partner in Houston’s Fulbright & Jaworski who filed an amicus brief in Miller on behalf of the Texas Medical Association, agrees that the opinion gives doctors appropriate protection to make emergency medical calls in the delivery room. “It’s always been the case, I think, that the right of a parent to make decisions for their minor children is not absolute,” says McQuarrie, who adds his comments are his own and not necessarily those of the TMA. “That’s an important guidepost in resolving these very difficult cases.” Keltner says the Millers are devastated by the decision. Sidney is 13 years old and cannot care for herself. She is blind, mentally retarded and suffers from cerebral palsy, Keltner says. Sidney’s mother, Karla Miller, quit a successful career as a financial adviser so she can take care of Sidney full time, Keltner says. “The only thing the Millers sued for was Sidney’s care. They didn’t want to be perceived as people suing for themselves,” Keltner says. Adds Keltner, “[W]hat they’re worried about is when they’re gone, who’s going to care for Sidney?”

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