By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
The little girl began to smile as the red rubber ball was dribbled on the wooden bench. With some effort, she turned her head toward the sound. The rhythm -- slap-thunk, slap-thunk, slap-thunk -- was slow at first, then began to pick up speed, faster and faster until Sidney Ainsley Miller let loose a shriek of laughter.
It was a tiny pleasure, to be sure, and a rare one. Since her birth on August 17, 1990, at barely 23 weeks gestation, Sidney Miller has known few conscious moments in which she has not suffered. She is severely retarded, and there is no chance she will ever walk, talk, read, write or provide for her own needs. Sidney's eyes are a lovely shade of brown, but only one is capable of sight, and that vision is limited to about two feet. Her birth, some 17 weeks premature, resulted in a form of cerebral palsy that contracts the muscles in Sidney's legs and pulls them toward her chest.
Less than a month after she was born, Sidney's brain began to leak cerebrospinal fluid, a condition known as hydrocephalus. She was no bigger than a pocket paperback when a shunt was implanted in her skull. The pumplike device is connected to a tube that runs beneath Sidney's translucent skin for the length of her torso, where the fluid drains into her abdomen. A lifelong affliction, the hydrocephalus causes seizures that rattle Sidney's frail body without warning. Because she has virtually no muscular development, Sidney's head often rolls involuntarily from side to side. When she's especially tired, it tilts back at a desperate angle, like a broken toy.
Anyone can see that Mark and Karla Miller love their daughter. They try to provide the simple delights -- a favorite meal or a horseback ride -- that, in their minds at least, give some semblance of normalcy to Sidney's childhood. They know better, of course. They have from the beginning.
When Karla's pregnancy took a turn that threatened her own life in August 1990, doctors at Woman's Hospital of Texas told the Millers that a 23-week-old fetus was not ready to live outside the mother's womb. If, by chance, the infant survived the birth, it would likely die within minutes if it did not receive artificial life support. Beyond that, there was a high risk the child would suffer from severe abnormalities.
The Millers then made a decision that, in a perfect world, no parent would ever have to make: They asked that their newborn baby be placed in Karla's arms and allowed to pass away peacefully.
Woman's Hospital had other plans, however -- plans that failed to consider the tragic outcome that Sidney Miller and her parents now struggle with every day. A hospital administrator informed the Millers that if their baby were born alive and weighed more than 500 grams (one pound, two ounces), it would immediately be handed to a specialist in the delivery room, who would do whatever was necessary to save the infant's life.
Indeed, Sidney was born alive -- barely. Her first experience was not a mother's love, but a tube inserted down her throat, followed by the searing sensation of 100-percent pure oxygen being pumped into her undeveloped lungs. With that, Sidney Miller became the victim of a complex yet dispassionate set of values. The same medical brilliance that could forecast a life of pain and disease for an unborn child could not -- would not -- muster the humanity to preclude it.
For two weeks last month, during an unprecedented lawsuit tried in the Harris County courtroom of state District Judge Carolyn Marks Johnson, a jury of eight women and seven men listened to testimony about the events surrounding Sidney's birth. On January 16, after fewer than six hours of deliberation, they found Woman's Hospital of Texas and its owner, Columbia/HCA Heathcare Corporation, grossly negligent for ignoring Mark and Karla Miller's request that their 23-week-old newborn not be subjected to life-support measures.
The jurors awarded the Millers $29.4 million to assist with the extensive care Sidney will need for the rest of her life. They also punished the hospital and Columbia/HCA with another $13.5 million in damages for violating Mark and Karla's right to decide what was in the best interest of their child and to make medical decisions accordingly.
The speed with which the jury reached its verdict surprised both sides, particularly Columbia/HCA. In its only response to date --a written statement -- the corporation said it was "astounded" by the verdict and planned to appeal. Columbia/HCA argued that Woman's Hospital had a "legal and moral obligation" to provide the best treatment it could for Sidney Miller.
Not if her parents did not consent to that treatment, says Michael Sydow, the family's attorney. The jury's decision, says Sydow, goes directly against "an ingrained social attitude that [physicians] are smarter than the rest of us."
"For most of the 20th century, the courts and everybody else in this country have sort of placed doctors ... not even on a pedestal ... they've prayed to them when they go to bed at night," Sydow said in a recent interview. "But intelligent people are able to make decisions about their own health and the health of their loved ones."
Apparently, that was the conclusion reached by the Miller jury. But if, as Sydow contends, this was a precedent-setting case, what precedent has been set? Should doctors bow to the wishes of parents without fail? Even Sydow admits that if the Millers weren't so obviously motivated by concern for their daughter's future well-being, rather than their own convenience, he wouldn't have taken the case.
An underlying question never put to the Miller jury is why Woman's Hospital overrode Mark and Karla's wishes. Was it because Columbia/HCA had its eye on the Millers' $1 million in health-insurance benefits, as Sydow suggested in his closing argument? Or, as corporation lawyers contend, could Sidney's caregivers (and perhaps her parents) have been charged with child abuse -- or even murder -- if treatment had been withheld?
The birth of Sidney Miller also raises a broader issue that medical ethicists and practitioners are still trying to resolve: When do technological advances in treatment cross the line that separates progress from human experimentation?
Whatever the answers, they will not change Sidney's life. The child's doctors say that while Sidney will never improve, there is no reason she shouldn't live as long as the next woman. That possibility fills her parents with an incredible sadness.
"I can't think past tomorrow because it just breaks my heart," Karla Miller says. "I don't want anyone to hurt her or abuse her any more than she's already been hurt and abused. But there will be a day when we won't be able to care for her anymore."
"Once ... death was regarded as an act of Providence, often inscrutable. We are now coming to look upon a high infant death rate as evidence of human weakness, ignorance and cupidity. We believe that Providence works through human agencies and that in this field as in others, we reap what we sow -- no more and no less."
At the time of Emmett Holt's address, a Dr. Martin Couney was drawing thousands of gawkers to "incubator-baby sideshows," and many people still reasoned that the death of sick or premature infants gleaned the weakest from the human race, and therefore was good for society.
The standards of medical care were scarcely more advanced. As recently as a generation ago, the chances were slim that a newborn with a very low birth weight -- less than three and a half pounds -- would live out the day. Survivors were often subjected to treatment that did more harm than good. Until the 1960s, doctors routinely withheld early feeding from such infants, leading to dehydration and hypoglycemia. Blindness resulted from excessive oxygen therapy, and antibiotics such as streptomycin caused deafness. Two out of three babies born in this weight category were developmentally impaired.
Major advances in prenatal obstetrics and newborn intensive care during the '60s and '70s increased the survival rate of infants weighing as little as two pounds, who almost without exception entered the world prematurely. Meanwhile, the incidence of major handicaps such as cerebral palsy decreased.
By the time Karla Miller learned she was pregnant in the spring of 1990, high-tech neonatal intensive care units (NICUs) were using cesarean section, mechanical resuscitation, drug therapies and other aggressive life-support techniques to save infants born at lower weights and younger gestational ages. But studies done in the 1980s suggested that progress had its price.
Researchers noted a rise in cerebral palsy, blindness and mental retardation directly linked to the improved survival rates of low birth-weight infants, triggering the question of whether aggressive neonatal treatment merely prolongs suffering in cases where withholding that care might be a more compassionate option.
Like all prospective parents, Mark and Karla Miller were anxious about the birth of their first child. Bright, educated and reasonably affluent, they knew the importance of, and could afford, good prenatal care. On the recommendation of a friend, Karla chose Dr. Mark Jacobs as her obstetrician, and he arranged a regular schedule of checkups. The first trimester of Karla's pregnancy was uneventful, and neither doctor nor patient had any reason to expect complications.
On the afternoon of August 16, Karla felt very tired. Mark had a social function to attend that evening, so she went to bed early. Shortly before 2 a.m., Karla awoke for the second time that night with abdominal pain. After noticing traces of blood in her urine, she called Jacobs.
"I think I might be in labor," she told her doctor.
"It's too early for labor," Jacobs replied, "but it sounds like you may be trying to get rid of the baby."
Jacobs told her to go to Woman's Hospital of Texas, where the doctor practiced and Karla was preadmitted. By the time she and Mark arrived, Karla's cramps had intensified.
The resident on call discovered that Karla's cervix had dilated three centimeters and that her amniotic sac, the cushion of fluid that protects the fetus in the womb, was bulging. Karla was in preterm labor -- the worst possible news at this early stage of fetal development. After consulting by phone with Jacobs, the resident told the Millers about terbutaline, a drug developed for asthma sufferers that relaxes the smooth muscles of the sinuses. Because the uterus is also a smooth muscle, terbutaline is sometimes effective in easing labor contractions.
At the time, however, there were dangerous risks associated with the use of terbutaline, which had yet to be approved by the Food and Drug Administration. Since the heart is also made up of smooth muscle, the most serious concern was that the drug could cause a rapid increase in heart rate, and that could lead to stroke. Still, the resident explained, it was about the only chance they had to save the fetus. Without hesitation, Karla agreed to take the drug. It was almost 6 a.m.
A few hours later, Jacobs arrived at Woman's Hospital. He examined Karla, and noted that the terbutaline appeared to be working. He ordered an ultrasound image to determine the fetus's approximate gestational age and weight, its position in the uterus, and to see how Karla's amniotic sac and membranes were holding up.
The situation was serious but, for the moment, stable.
Nothing in their pasts, either together or before they met, could have prepared Mark and Karla Miller for the next 15 hours. Karla's rising panic that something was wrong with her unborn baby was compounded by the strangeness of her surroundings. She had never been inside a hospital, and the only doctor who'd ever treated her was the family physician, back home in Jasper. Now, here she was, sick and in pain, surrounded by frightening machines that beeped and buzzed for inexplicable reasons. Worse, a swarm of strangers were urgently probing her most intimate regions.
An equities broker, Karla had worked for high-powered firms like Shearson Lehman Brothers and Smith Barney, but she never lost touch with her East Texas roots. She disdains the cool hardness of the big city and prefers room to breathe, fields to roam and horses to ride. A natural beauty with long, chestnut hair, high cheekbones and a graceful reserve, Karla was not yet 21 years old when a large, dark-haired man brought her a plate of food at a Christmas party in 1982.
"I haven't seen you eat anything all night," he said.
They were as different as they could be, but Mark Miller is a hard man to ignore. He stands well over six feet tall, with the physique of an offensive lineman and a personality just as large -- confident, a bit loud, with a penchant for wisecracks and earthy language. Raised in Pasadena, Mark started out in public relations after graduating from the University of Texas, but he eventually succumbed to a love of politics and worked as a consultant to various Texas Democrats, including former governor Mark White, before becoming a stock broker. He and Karla dated for almost five years before they married on November 14, 1987.
In April 1990, Karla learned from a home pregnancy test that she was expecting. She and Mark were ecstatic, and they immediately began planning a nursery and stocking up on diapers and supplies. At her doctor's recommendation, Karla began a regimen of prenatal vitamins and continued her morning walks to stay in shape. As summer began, she quit her job at Smith Barney in anticipation of the big day, estimated to be December 15.
In early August, Karla went to see Mark Jacobs for her monthly checkup. Everything looked fine, Jacobs was happy to report. The doctor had become fond of the Millers. Their excitement at the prospect of becoming parents was contagious. Jacobs rarely got involved any more than necessary in his patients' lives. But the Millers, he had to admit, were becoming friends.
But as soon as he saw the results of Karla's ultrasound at around 11 a.m. August 17, Jacobs knew it was going to be a difficult day. The fetus seemed fine; its heart was beating and there was movement of the limbs. The radiologist who analyzed the sonar results estimated the baby to be roughly one pound, four ounces and at a gestational age of 23 weeks and a day. There were no noticeable abnormalities.
Karla, however, seemed to be getting sicker. She was in severe pain and had a temperature approaching 100 degrees, both symptoms of chorioamnionitis, an infection of the membranes of the amniotic sac. She was also losing amniotic fluid rapidly. Jacobs tracked down Dr. Donald Kelley, a neonatologist from Baylor College of Medicine, who was doing a fellowship at Woman's Hospital. He briefed his colleague on Karla's condition and asked him to talk with the Millers about the prognosis for a 23-week-old infant.
At the time, Kelley had little scientific data on which to rely, but he was aware that survival at such an immature age was no longer impossible. In 1973, when the Supreme Court's Roe v. Wade decision held that states could allow abortions at 28 weeks of gestation, the survival rate of infants born at that age was just 10 percent. By 1990, that prognosis had been turned on its head, thanks to aggressive NICU techniques. Still, the very edge of viability was 24 weeks. A study published in the New England Journal of Medicine in December 1989 reported virtually no chance of survival at 22 weeks and only an 8 percent chance at 23 weeks.
But Kelley, a specialist in the delivery and care of high-risk newborns, did not waste time reciting research results for the Millers. His assessment of the infant's chances was almost brutal, and his clinical matter-of-factness is something Mark and Karla will never forget.
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."
And what a reimbursement. Hospital delivery charges for full-term newborns increased 40 percent over the study's five-year period. Meanwhile, the delivery charges for sick babies and "preemies" increased an incredible 214 percent.
Doctors, of course, aren't thinking of a hospital's bottom line when a patient's life is at stake, but they're always aware that their decisions may be second-guessed in a courtroom. Plavidal was certainly aware of that possibility. A decade earlier, he had given parents a poor prognosis for their 23-week-old fetus. Doctors recommended that the newborn's life not be artificially prolonged. The parents agreed, and the infant died two hours after birth. Four years later, Plavidal and the hospital were sued by the parents.
At about 4:30 p.m., a couple of hours after the Millers made their heartbreaking decision, Jacobs examined Karla in her room. As he left her bedside, he summoned Mark into the hallway.
"The hospital wants you to sit down and talk to some people," Jacobs said. "It would be a favor to me."
He took Mark down the hall to an unoccupied hospital room, where four people, including Plavidal and Anna Summerfield, the director of neonatal intensive care for Woman's Hospital, were waiting. Though the tone of this meeting has been disputed, the gist of the discussion and the ultimate outcome have not. Jacobs introduced everyone, and, according to Mark Miller, stepped back against a wall.
Summerfield took charge, saying she was aware of the Millers' decision to withhold neonatal treatment from their baby. However, she said, the hospital's policy required resuscitation and care of any live-born child weighing at least 500 grams. Mark explained that he and Karla had talked it over with Kelley and Jacobs, and that the physicians agreed with their decision not to prolong the infant's life artificially.
Summerfield repeated the hospital's policy, adding that if the Millers could not abide by it, she would help arrange Karla's transfer to another hospital. Mark asked to see a copy of the hospital's written policy.
"Are you a lawyer?" asked Plavidal.
"No," Mark replied, "but I can have one here in ten minutes."
Plavidal assured Mark that he didn't need an attorney and then offered to share two personal anecdotes. The first was the story about the parents who sued for the nontreatment of their premature infant. The other, also involving the birth of a 23-weeker, had a happier ending. The child weighed 705 grams at birth, Plavidal said, and showed vigorous signs of life. It was immediately put on life-support by a neonatologist. Four months later, this extremely premature infant left the hospital and grew to be a healthy boy.
The point, Plavidal stressed, is that no one knows whether a child will live or die; therefore, physicians are duty-bound to pursue life. Dr. Charleta Guillory, the resident neonatologist at Woman's, agreed. Guillory explained that the state-of-the-art capabilities of the hospital's neonatal intensive-care unit, coupled with recent advances in the practice, would ensure the Millers' child the best care available anywhere.
Mark was stunned. He and Karla were intelligent people, making what they considered to be an informed decision. Yet no one was listening. Meanwhile, he was being subjected to a sales job. Mark looked sadly around the room, sized up his smaller adversaries and flippantly said:
"What if I stand in the delivery room door and don't let anyone in?"
In court many years later, he recounted Summerfield's reply: "If you do anything to interfere with hospital procedure, you will be removed from your wife's bedside by security."
Nonetheless, Mark refused to give his consent to resuscitate the child. Shortly before 11 p.m., Karla was wheeled into the delivery room. Green sheets had been hung in front of the overhead mirrors that allow mothers to watch their babies being born. Another sheet was placed before Karla's face. Sidney came so quickly that delivering physician Robert Anding, Jacobs's partner, was still scrubbing in an adjacent room. The nurse actually took Sidney from Karla's womb.
She was blue, limp and silent. Her heart rate was a sluggish 80 beats per minute. The nurse handed the infant to the neonatologist on call, who attached her to a mechanical ventilator. Two hours later, Sidney was in the neonatal intensive-care unit, where she would remain on life support until early December. In her first 24 hours of life, she underwent a spinal tap and multiple blood transfusions. She received experimental therapies such as intramuscular shots of Vitamin E and doses of surfactant, which expands undeveloped lungs to make breathing easier. Then there was something called a "TPN protocol" -- an injection of liquefied saturated fats. That treatment, also considered experimental, provided the nutrition that Sidney's stomach and bowels were too undeveloped to handle.
Two days after her birth, Sidney's brain began to bleed. It was too early to gauge how much damage would result, but her medical chart reported several alternative prognoses: Grade II hemorrhage, 40 percent chance of cerebral palsy; Grade III, 75 percent chance; Grade IV, 95 percent chance.
On August 19, Karla Miller was well enough to visit the neonatal intensive-care unit for her first look at Sidney. There wasn't much to see, really, just an impossibly small human being about the size of a man's hand. Sidney's face did not have the cherubic folds of flesh of a healthy newborn, but was swallowed up by an oxygen mask connected to a mechanical ventilator. Her eyes, which were fused shut for almost a month after birth, were covered by bandages. Tubes and catheters sprouted from her gelatinous skin. Her pain, which must have been intense, was dulled by doses of phenobarbital and morphine.
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:
McFall: Did you discuss not signing this and letting Sidney slip away?
McFall: You did everything you could to keep her alive?
Miller: I did everything I could do to prevent more damage and more suffering. If the doctors told me it was necessary, I took them at their word.
McFall: But one of the reasons was to keep Sidney alive.
Miller: Those are your words.
McFall: Did you want to keep Sidney alive?
Miller: I think that's absurd.
But McFall seemed to have little stomach for that line of questioning. The sight of a bearlike man reliving the worst day of his life, his hands twisting together in anguish as he fought unsuccessfully to hold back sobs, left some jurors in tears.
The jury was considerably less moved by defense testimony that deconstructed the proper procedures for obtaining parental consent. Nor was testimony that tried to prove Mark Miller eventually agreed to follow the hospital policy especially convincing. Jacobs, Kelley, Plavidal and Summerfield all testified that the hospital and the Millers had reached "a consensus" on how Sidney would be treated immediately after birth.
"The feeling in the meeting, what I understood by the end of the meeting, was that we had a consensus to have a neonatologist at the delivery," Summerfield said in cross-examination by Sydow. "And if Sidney was born alive, she would be resuscitated."
The problem was that, on direct questioning, no one could recall any instance when Mark Miller said he agreed to that plan. In one of numerous instances in which defense witnesses seemed to contradict previous statements, Sydow whipped out a deposition taken from Summerfield in an April 1994 deposition and began reading: "Question: 'Did the father ever change his mind and tell you that it was okay to resuscitate Sidney?' Answer: 'No.' "
According to jurors who commented after the trial, Summerfield's testimony was the turning point in the case. Indeed, Sydow, whose languid courtroom style was nonetheless riveting, frequently managed to shake Summerfield's resolve, most dramatically at the conclusion of his cross-examination of the administrator. Sydow set up his final question with a slow, graphically detailed description of Sidney Miller's condition today. "Ms. Summerfield," he then asked, "was that the best outcome for her?"
Summerfield paused for several moments, then answered, "Difficult question."
It was nearly four months after Sidney was born when Karla Miller was finally allowed to hold her first-born child in her arms. It was another four months before Sidney was discharged from Texas Children's Hospital to come home, and another three before the 24-hour-a-day nurses finally cleared out of the Millers' home.
Karla never returned to her job at Smith Barney; she stays home to care for Sidney now. Their days together begin at about 6:30 a.m. Karla carefully bathes her daughter, mindful of the shunt that lies just beneath her scalp. Then, as Sidney sits in her wheelchair, Karla dresses her, usually in bright clothes, and places a fire-engine red ribbon in her hair.
Meanwhile, Mark keeps an eye on Sidney's brothers, six-year-old Bradley and 15-month-old Jake. Out of necessity perhaps, they are fairly independent kids for their age, and even young Jake seems to understand that his sister is different, even special.
This life is not likely to change, not for Sidney nor anyone else in the Miller family. If the jury's $42.9 million award holds up on appeal, there will be enough money to give Sidney the best care for however long she lives. That will ease Mark and Karla's worries about the future.
For now, though, there are constant fears and worries that can turn to panic at any moment. Each time Sidney gets sick, the Millers' first thought is whether she has a shunt infection, which can kill quickly. No amount of money will teach Sidney to talk, to warn Mark and Karla, to tell them where it hurts. Or, for that matter, to assure them that everything is just fine.
"When I watch Sidney, I'm amazed that she's been able to tolerate all the things that have been done to her," Karla Miller says. "I know my daughter is not of this material world. I hope she's happy. I hope she doesn't feel as bad about her life as I do.