Potentially Major Decision Rendered in Favor of Babies Born Prematurely

By Dave Andrusko

        In a case of potentially major significance for babies born prematurely and/or with disabilities, the Wisconsin Supreme Court ruled July 13 that children born in hospital birthing facilities that receive federal funds must be given medical screening for emergency conditions, regardless of age or disability.

        The decision involved a suit brought by Shannon Preston and Charles Johnson, the parents of Bridon Johnson, against Meriter Hospital. The parents claimed medical malpractice and violations of the federal Emergency Medical Treatment & Labor Act (EMTALA) because Bridon was not screened or treated after his premature  birth. Bridon died 2 1/2 hours later.

        According to the Wisconsin Supreme Court, “The complaint alleges that Meriter not only failed to provide an appropriate medical screening examination but also did so because Shannon Preston and Bridon Johnson lacked private health insurance.”

        Much of the decision turned on an exceedingly intricate reading of certain passages found in EMTALA.

        Meriter Hospital of Madison, Wisconsin, took the position that it had no obligation to screen newborns in its birthing facility because its birthing center is not “the emergency department.” (The hospital also argued the baby was an “inpatient”—as opposed to someone who “comes to the hospital”—and thus the EMTALA screening requirement did not apply.)

        The parents countered, according to the Wisconsin Supreme Court, that this “is not consistent with the intent of EMTALA, and that a hospital’s emergency department encompasses its birthing center.”

        On July 13, 2005, the Wisconsin Supreme Court reversed lower court decisions which held the EMTALA’s screening requirements do not apply to newborns unless the infant arrived at a hospital emergency room.

        According to James Bopp, Jr., president of the National Legal Center for the Medically Dependent & Disabled, Inc., the decision was important for at least three reasons.

        “It provides that there must be at least an evaluation of a newborn’s actual condition and individual chances for survival,” he said. “It provides that this screening must occur regardless of whether the child comes to an emergency room or is born in a birthing facility. And it establishes a relationship between child and health care provider that is the basis of an obligation to treat the child.”

        Bopp added, “It means that hospitals can’t turn their backs on kids born prematurely or with disabilities simply because they are premature or have disabilities.”

        There are two background considerations necessary to understand the decision.

        First, EMTALA is commonly referred to as the “Anti-Patient Dumping Act.” According to the court, “Patient dumping refers to a hospital’s refusal to treat indigent and uninsured patients, thereby necessitating either formal or informal transfers of individuals from private to public hospitals.”

        An underlying purpose of EMTALA, the court said, is to “provide an ‘adequate first response to a medical crisis’ for all patients,” (quoting from the Congressional Record). Shannon Preston and Charles Johnson did not have private insurance.

        After considering a number of factors, the court agreed that regulations promulgated by the Department of Health and Human Services that defined “emergency department to be coextensive with hospital property” were reasonable.

        Second, the hospital’s policy is not to treat infants less than 24 weeks in gestational age.

        In November 1999, Shannon Preston went to Meriter Hospital. She had leaked amniotic fluid for several days. She was examined and, as a result of ultrasound evaluation, was told that her child would not survive at birth because of his early gestational age—23 weeks, 2 days.

        According to Preston, the hospital medical staff abandoned her, the child’s father, and their child in the birthing facility. Bridon died 2 1/2 hours after his birth without any medical attention.

        Bridon was 1 1/2 pounds—700 grams—at birth. Assuming they are treated, children born with birth weights of 601–700 grams have a survival rate of 63%. For babies born at 701–800 grams, the survival rate is 74%.

        After a Wisconsin circuit court entirely dismissed the case, the National Legal Center agreed to represent the child and his parents on appeal. “We thought an injustice had been done to his child and his parents,” Bopp explained. “We believed that an important federal law meant to protect against this sort of thing had been wrongly interpreted by the court.”

        After the Wisconsin Court of Appeals upheld the circuit decision, the National Legal Center requested the Wisconsin Supreme Court to review the lower courts’ holdings, which it agreed to do.

        The Wisconsin Supreme Court concluded, “The duty to provide a medical screening examination should not depend upon the hospital room—be it the emergency room, the birthing center, or an operating room—into which a baby is born.”

        The court then remanded the case to the circuit court to “decide whether Meriter’s response to Bridon’s presence satisfied its duty to provide an appropriate medical screening.”

        The case is Preston v. Meriter, No. 2003AP1376, 2005 WI 122. It can be found online at http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=18996.