By Craig Malisow
By Jeff Balke
By Angelica Leicht
By Jeff Balke
By Sean Pendergast
By Sean Pendergast
By Jeff Balke
By Ben DuBose
By early September 1990, two things were apparent to Mark and Karla. For one thing, everything Kelley and Jacobs had predicted had become reality. Sidney had pulmonary emphysema, a Grade IV cerebral hemorrhage and hydrocephalus. She had undergone several painful spinal taps, and she had been poked by so many needles and catheters that her entire body was scarred and every vein had collapsed. Doctors had to begin tapping arteries. She had jaundice, probably caused by the many blood transfusions. One day, Sidney stopped breathing; her heart rate plummeted to 40 beats per minute. According to her medical records, she "required resuscitation continuously."
The Millers also learned that the neonatal intensive-care unit at Woman's Hospital did, in fact, have its limitations. On September 11, Sidney's hydrocephalus -- the leakage of cerebrospinal fluid -- had reached dangerous levels, causing the cranial bones to separate and her head to swell noticeably. She would need brain surgery to implant a device, called a shunt, that would allow the fluid to drain.
But Woman's Hospital did not have the proper equipment or facilities to perform neurosurgery. That came as something of a surprise to Mark and Karla, who had been told the hospital was prepared for every possible outcome. And, as they well knew, severe brain injury is not an uncommon outcome in infants who require neonatal intensive care.
On September 25, 1990, Sidney was transferred to Texas Children's Hospital, where she has since had seven brain surgeries to install or replace the shunts she will require for the rest of her life. The last entry on her medical chart from Woman's Hospital of Texas reads, "Parents aware of child's condition and ultimate poor prognosis."
It took five and a half years for Mark and Karla Miller's lawsuit against Woman's Hospital and Columbia/HCA Healthcare Corporation to come to trial. At the order of the judge, the parties had twice attempted to have the case mediated. The first time, attorneys for Columbia/HCA offered the Millers $50,000 for their trouble. At the second mediation, they withdrew the offer and, in essence, said, "See you in court."
Once there, the hospital and Columbia/HCA pinned their hopes on two primary avenues of defense. The first was that the nurses and physicians at Woman's Hospital had a legal, if not ethical, responsibility to provide treatment to Sidney. To that end, defense attorneys planned to cite a number of laws, including the federal Child Abuse Prevention and Treatment Act of 1984, known as the revised Baby Doe regulations. The act defines the withholding of "medically indicated" treatment as child abuse and neglect, and it threatened physicians with the loss of privileges and hospitals with the loss of federal funding. In the same vein, the defense also planned to show that the Texas Family Code obligated parents to provide their children with medical care.
Unfortunately for them, Judge Carolyn Marks Johnson blocked that defense, ruling that it would require jurors to interpret the law. Johnson, who is known at the courthouse as a plaintiff-friendly judge, could have interpreted those laws for the jury, but chose not to. The simple reason is that the case was less about Sidney's treatment and more about the consent to treat. And the Texas Family Code, which has precedence over the federal act, gives the right of consent to parents. According to Michael Sydow, the Millers' attorney, that also implies the right not to consent.
"The obligation under the Family Code is not to provide all conceivable medical care," Sydow said in a post-trial interview. "If that were the rule, if a child thought it wanted a sex-change operation, the parents would be obligated to pay for it. As for Baby Doe, those regulations set a standard for states to follow if they want some funds. They don't give Columbia/HCA the right to constitute themselves some vigilante committee to right what they perceive to be wrongs."
That may be true, defense attorney John Serpe argued in court, but consider the poor physician faced with a life-and-death situation. Serpe was barred from soliciting testimony about Baby Doe and the Family Code, but was able throughout the trial to frame the basic predicament: Armed with only the vaguest grasp of two laws that on their surface seem to conflict, which way do physicians turn?
"When people say, 'I'm at your hospital, but don't provide treatment,' what is the hospital's obligation?" Serpe asked in his closing statement to the jury. "That is the central dilemma in this case. No one knew what condition Sidney would be in when she was born, and no one was comfortable with the idea of making decisions about Sidney [before birth]."
The defense team also argued that Mark and Karla Miller consented to the resuscitation of Sidney. As proof, they pointed out that the Millers signed a consent form for every procedure the hospital performed following the birth. Much, if not all, of that treatment most certainly prevented nature from taking its course, the hospital's lawyers argued.
That tactic solicited some of the most gripping testimony of the trial. On the third day of testimony, defense attorney Donald McFall grilled Mark Miller in cross-examination about the numerous spinal taps needed to monitor Sidney's hydrocephalus: