WHEN A HOSPITAL IGNORES PARENTS' REQUEST TO LET THEIR NEWBORN DIE, IS IT A TORT?

Over a decade ago, a Texas hospital decided to ignore the requests of the parents of a severely retarded newborn, and to treat the baby instead of allowing it to die as the parents wished. The parents responded by suing the hospital.

When the case went to trial, a jury held the hospital liable for $60 million ($29 million in past and future medical expenses, and $13.5 million in punitive damages, plus interest.)

But in 2000, a state court of appeals in Houston overturned the award. It held that the parents had no power to withhold their permission for life-saving treatment for the baby, particularly since she was treated under emergency circumstances. Now, in the next few weeks, the Texas Supreme Court will decide whether that ruling is correct.

The case is very interesting because it arises out of a conflict between Twenty-First Century technology, Twentieth Century family law, and Nineteen-Century tort law. It also raises very important questions about what happens when medical technology outstrips the traditional rules of tort law.

The Facts of the "Baby Battery" Case

The case began when, on August 17, 1990, Karla Miller was admitted to the Woman's Hospital of Texas with the symptoms of premature labor. The 23-week-old fetus she was carrying weighed only approximately 630 grams.

Karla and her husband Mark were informed by the hospital that, with "heroic" measures, the baby's life could be saved, but that it would very likely suffer from severe handicaps. After consulting with physicians, the Millers made what they later described as the hardest decision in their lives: they requested that after birth, no extraordinary life-sustaining efforts should be made.

The hospital told the Millers, however, that its policy was to provide any premature baby over 500 grams with all necessary medical care, and that it therefore could not honor the Millers' wishes. Mark Miller was told their only option was to remove both Karla (who was in critical condition) and the baby from the hospital.

Now, at age twelve, Sidney is completely dependent on the Millers, and will remain so for the rest of her life. The Millers sued the hospital and its owner, Hospital Corporation of America, in part for the costs of her care.

The Unusual Theory Upon Which the Millers Sued: Battery

Without apparent grounds to sue for medical malpractice, the Millers sued for battery, an intentional tort defined as a harmful and/or offensive touching without consent.

The Millers case was simple: The defendants, through its neonatologist, touched Sidney without consent when they treated her, because her parents sought to withhold treatment. And, the parents argued, that contact was harmful and/or offensive, because it went against the parents' wishes and led to a life of suffering for Sidney

Was the contact indeed a "battery"? That's a difficult question.

Tort law has remained constant since the Nineteenth Century when it comes to battery: Autonomy trumps almost everything. For example, even if a doctor wants to help someone who needs medical care, the doctor must get that person's consent first. (Exceptions exist only in cases of emergency in which consent cannot be obtained - perhaps because the patient is unconscious, or because the patient is conscious, but is a child whose parents cannot be immediately reached.) Here, consent - at least Sidney's parents' consent - was certainly withheld.

Yet, while the law properly regards parents or their guardians as children's spokespersons, modern family law is also mindful of the risk that parents or relatives may not make decisions about medical treatment with the best interests of the child in mind.

As a result, there are methods by which a hospital can petition a court to override a parent's refusal to treat a child. And hospitals may, at times, believe it is their duty to do so. A hospital has obligations under medical malpractice law as well as state and federal law to provide reasonable care to its patients; those obligations extend to newborns too.

Thus by comparison, suppose Sidney Miller had been ten years old and suffered a disease that caused her to be brain dead. Her parents might decide to remove her from life support, but if they did, the hospital could challenge their decision. The case would then end up being resolved by a Family Court judge.

Meanwhile, Texas, like many states, has taken steps to help individuals and their families resolve such conflicts. Specifically, it enacted law called the "Advance Directives Act" which allows persons to give binding instructions to their families and physicians about when to make "heroic" efforts to resuscitate them, and when not to do so.

Parents can also make out such directives on their children's' behalf, since children can't legally do so for themselves. But here too, Texas protects children from their parents: This can only happen when the child's condition has already been determined by a physician to be terminal. That, of course, was not the case with Sidney: Her doctors had informed her parents that with treatment, she could live, but with severe handicaps.

In short, it might be the case that the Millers should have had the power to allow Sidney to die, but Texas (and, it turns out, federal) law suggest that they, by law, they in fact did not have that power.

Of course one can argue that depriving parents of such power is unconstitutional, but that is another matter. For now, let's just assume the Advance Directives Act and tort law were constitutional, and thus constituted the applicable law in the case.

So how does the Advance Directives Act apply in Sidney's case? Apparently, it does not: The Millers did not try to write out a directive for Sidney, so they argue it was not triggered at all.

But that's a strange argument, isn't it? Because Sidney wasn't terminal, under the Act, the hospital would not have had to accept a directive, had the Millers written one. Instead, it could have gone on, as in fact it did, to save Sidney's life. Is it possible, then, that the parents acquired more control by not writing out a directive in the first place?

Should the Hospital Have Gone to Family Court Before Overriding the Millers?

The Millers do not make that argument. Instead, their argument boils down to the contention that the hospital should have gone to Family Court if it sought to override their decision. They could have lived with an adverse decision from a judge, they argue, but not one from a hospital administrator.

The main issue in the case then ends up being a strange mix of an administrative law question - who was the right decisionmaker? - and a tort law question - did a wrong occur, even if it was a procedural wrong, and if so what were the damages?

The Texas Supreme Court should probably find for the hospital - it seems to have been a true emergency - or at least remand for resolution of this simple factual question. (It should also require the Millers to show on remand that had they gone to Family Court, the judge would have ruled in their favor.)

However, the Texas Supreme Court should also reject one odd argument the hospital makes in an attempt to prove it could not have gone to court sooner.

Hospitals Should, and Under Texas Law Can, Go to Court About Fetuses

The argument is this: Since Sidney was not a "person" until she was born, the hospital says, it could not have filed a motion in Family Court until then. But when she was born, she was in need of instant neonatal intervention. Hence the emergency.

One can strongly support abortion rights (as I do), and still not endorse bizarre positions like this one. It seems to be wrong as a matter of law: As the Millers point out in their reply brief, family law in Texas recognizes the jurisdiction of the Family Court over unborn fetuses in many contexts. It is also wrong as a matter of logic.

The Millers and the hospital agreed that Sidney was to be born, and thus would soon become a "person." Karla Miller might, if she chose to, have sought a legal abortion of the 23-week old fetus. However, for reasons outside the scope of this article, she did not. As a result, all parties knew they would be clashing over the fate of a baby, not a fetus.

In light of this, the hospital's duty, if any, to go to Family Court should have been triggered as soon as the conflict was apparent. While the hospital's position may be somewhat sympathetic (though the Millers' is, as well), this argument is not.