TEXAS SUPREME COURT UPHOLDS EMERGENCY RESUSCITATION OVER PARENTAL OBJECTION

Deciding a closely watched case, the Texas Supreme Court on September 30 ruled that when emergency medical treatment is needed to save the life of a newborn infant, that treatment can be provided without parental consent when there is no time to conduct court proceedings to determine whether a parental decision to withhold treatment should be accepted or overruled.

In August 1990, Karla Miller's life-threatening infection forced doctors to induce delivery of her premature child. Some physicians told her and her husband the child had little chance to live and, if the baby did so, would probably have significant disabilities. The parents then told the doctors they wanted no resuscitation or life support to preserve the child's life after delivery, and the obstetrician directed that no neo-natologist be present to care for the child after delivery.

Protests by nurses led to a series of meetings among hospital personnel, at the conclusion of which the Millers were told that a neo-natologist would have to be present to evaluate the infant's condition before a decision could be made about life-preserving measures. The Millers protested and refused to consent to any resuscitation.

Subsequently, Sidney Miller was born at 23 weeks and 1 day gestation, weighing 615 grams, alive. The neo-natologist provided her lifesaving treatment, and she initially responded well.

A few days later, however, she had a brain hemorrhage that did cause significant disabilities, including mental retardation and cerebral palsy. The Millers sued the corporation owning the hospital, and a jury awarded over $60 million in damages on the theory that Sidney would not have lived had the hospital not provided treatment against her parents' wishes.

The intermediate appellate court reversed, holding that a court cannot decide between life with disabilities and no life at all. The Texas Supreme Court agreed with that result, but with a refined rationale.

The court noted that parents have broad authority as decision-makers for their infant children, including decisions whether to consent to medical treatment. However, in circumstances such as child abuse and neglect, the state may override a parental refusal to consent. Normally this requires a hearing and a court order.

However, the court said, "a physician does not commit a legal wrong by operating on a minor without consent when the operation is performed under emergent circumstances - - i.e., when death is likely to result immediately upon the failure to perform it." This authority "arises only in emergent circumstances when there is no time to consult the parents or seek court intervention if the parents withhold consent before death is likely to result to the child."

In those circumstances, the court observed, "the harm from failing to provide life-sustaining treatment under emergent circumstances is death. And ... it is impossible for the courts to calculate the relative benefits of an impaired life versus no life at all."

The court touched on the fact that under the so-called "Baby Doe" regulations implementing the federal Child Abuse Amendments of 1984, states such as Texas that receive federal funding for their child abuse and neglect programs must enforce a standard ensuring that disabled infants with life-threatening conditions are not denied the treatment most likely to be effective in correcting or ameliorating their life-threatening conditions. It noted that these regulations "appear to contemplate legal proceedings to override the lack of parental consent" and, in any event, said that disposition of the case "is governed by state law rather than federal funding authorities."

Earlier this year, however, the Texas legislature amended the statutes governing withholding and withdrawal of life-sustaining treatment explicitly to recognize that they are "subject to applicable federal law and regulations relating to child abuse and neglect to the extent applicable to the state based on its receipt of federal funds." While this provision was not in effect at the time the Miller case arose, it clearly establishes for the future that Texas law must be construed to comply with the federal law.

"If the Texas high court had put hospitals at risk when they give lifesaving treatment to children born with disabilities," said Burke Balch, director of NRLC's Robert Powell Center for Medical Ethics, "it would have been a tremendous blow to their equal right to live. It is critically important not to chip away at the essential legal protections against infanticide that the disability rights and pro-life movements fought so hard to achieve in the wake of the well-publicized Infant Doe cases of the 1980s."