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Kelley explained that the fetus was so immature that if it survived birth, its brain might be unable to sustain such a basic function as a heartbeat. The fetus, in essence, had no lungs, which do not begin their last stage of development until the final 30 days of gestation. There was at least a 95 percent chance that the infant would have cerebral palsy, and it was equally likely it would be mentally retarded. The risk of disease, infection and organ malfunction would be a constant factor in the life of a child born at this stage.
The Millers were devastated. Karla pressed Jacobs for any sign of hope. She did not want to believe that, with all the humming technology around her, the infant couldn't simply mature normally outside her womb. Jacobs shook his head.
"Understand, this is not a birth," he said firmly. "This is a tragic miscarriage."
Kelley and Jacobs agreed that the child would probably not be born alive, but they informed Mark and Karla that the hospital was equipped to resuscitate the infant. Whether that was to happen, however, was the Millers' call -- and it had to be made very soon. The infection in Karla's womb was raging and threatening to spread to her bloodstream. The fetus would have to be born, or Karla could die.
The doctors quietly left the room. Almost as soon as the door shut, Karla told Mark that she had made up her mind before Kelley had completed his litany of miseries. She could not bear to watch her newborn child suffer. It's not fair, she said. Mark agreed.
"It's not meant to be," he said.
Mark and Karla told Jacobs to "let nature take its course." All they asked was that Karla be allowed to hold and comfort her newborn until it was gone. Jacobs, tears running down his face, told his friends that he understood their decision, that while he knew how badly they wanted this child, he thought they were doing the right thing.
Kelley documented the decision on Karla's patient progress report: "Parents request no extra-heroic measures be taken at this point." The Millers understood that to mean that their child would not be subjected to artificial life support.
Sometime around 3 p.m. that day, Dr. Ferdinand Plavidal received a phone call from a nurse in the labor-and-delivery unit at Woman's Hospital. The nurse told Plavidal that one of Mark Jacobs's patients was preparing to give birth at 23 weeks gestation. The parents had asked that a neonatologist not attend the delivery and that no life-support measures be used on the infant.
Plavidal has a private practice, but his duties at Woman's Hospital are so vast that he rarely has time to attend to it. He is chief of obstetrics at the hospital and sits on at least a half-dozen committees, including the panel that reviews physician conduct and procedures.
The L&D nurse's message disturbed Plavidal. He had never been confronted with a direct order from parents not to revive a baby that had not yet been born. Since it was his duty to arrange how the neonatal staff was deployed, he went to Woman's Hospital to talk to Jacobs about how to handle Karla's delivery.
At this point, the story of Sidney Miller's birth comes to a fork in the road. Two paths, two versions of events, lead to Sidney's birth at 11:03 p.m. Only one of them is straight and true. The other remains clouded by the fact that doctors who have treatment privileges at hospitals are not anxious to compromise their ability to make a living.
This impulse, commonly referred to as "circling the wagons," was evident in the courtroom last month, seven and a half years after Sidney Miller came into the world. A half-dozen physicians and one administrator from Woman's Hospital offered identical testimony that differed in crucial respects from Mark and Karla Miller's. A parade of well-compensated expert witnesses, none of whom had the advantage of being present when Sidney was born, also testified on behalf of the hospital, offering high-and-mighty moral judgments and lavishing praise on the physicians for the way they handled a difficult situation.
But the Millers had not sued any of the doctors or nurses who treated their daughter the night she was born. Instead, Mark and Karla had taken aim at Woman's Hospital and Columbia/HCA, whose "arrogance," they claimed, was responsible for their daughter's lifetime of suffering.
"We had the option to sue the doctors," Mark says, "but what for? They did what they were told by the hospital."
To put the Millers' tragedy in its full context, it helps to understand the role of neonatal intensive-care units beyond the treatment of sick babies. In the first study of its kind, published in the January 1998 issue of Pediatrics magazine, researchers from Wisconsin looked at the effect on hospitals of early-discharge policies instituted by insurance companies. They found that hospitals, when faced with lost revenues attributable to shorter stays by full-term newborns, compensated by classifying more babies as sick, "thereby allowing for longer hospital stays to be reimbursed by the insurance carriers."
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