Child Support

The same extreme measures that saved Sidney Miller at birth also severely disabled her 11 years ago. Texas courts are still trying to determine who should pay for it -- and could set a legal precedent in the process.

At other times, the large domed building on the Baylor University campus would have served as a lecture hall for discourses on higher education.

But on this gray, biting-cold early April morning in Waco, crowds began gathering for far more than another day of academic enlightenment. About two dozen wheelchair-bound protesters arrived to position themselves on the outside steps. Soon their chant rippled across the brick walkway:

Infanticide is homicide.
Infanticide is homicide.

Deron Neblett

A jury found the hospital committed battery for what was done shortly after the birth of the tiny baby.
Photo courtesy of the Miller family
A jury found the hospital committed battery for what was done shortly after the birth of the tiny baby.

Briefcase-bearing lawyers in stylish dark suits escorted their clients, top corporate hospital officials and representatives of influential medical organizations, into the large room to join in the wait for the appearance of the featured guests: nine somber men and women in stark black robes.

The Texas Supreme Court had come to this new Baylor landmark to embark on what is likely to be a different landmark for the entire state -- in the fundamental clash between medical ethics and the law, a precedent-setting case that could determine how hospitals and doctors settle such conflicts in the future.

The path to the state's highest court began in Houston in 1990 with only the intensely personal tragedy of a mother giving birth to an extremely premature baby in Houston. The hospital refused requests from Karla Miller and husband Mark to avoid extraordinary measures to keep the underdeveloped newborn alive. The treatment, as the parents feared, caused their daughter to develop severe disabilities. The Millers later sued, asking for damages for the enormous costs of caring for their child.

Even four years ago, the issue seemed to have been settled. A Harris County jury ruled that HCA-Hospital Corporation should pay $42.9 million to cover the expenses. Two years later, a controversial decision by a Houston appeals court overturned that verdict.

None of the supreme court justices was even on the bench when the plaintiff was born, but they had half-expected to meet Sidney Ainsley Miller -- at least to consider the case. By the time the two sides appeared in Waco, the debate had evolved well beyond the question of who pays an 11-year-old girl's medical bills.

What began as a straightforward case of parental consent for a child's treatment has become a question of how far physicians should go to sustain life by artificial means. Justices began facing their highly complex options: They could affirm the verdict and award to the Miller family, or they could in effect require doctors to try to resuscitate all newborn babies, with or without parental consent. That means the court can recognize that a hospital practice caused her extensive injuries -- or it could establish that very practice as law to be followed for every future Sidney Miller.

On this morning in Waco, her parents stepped through the crowd, by now oblivious to the stings of protesters' chants as well as the cold prairie wind. Karla Miller sat with her head down, comforted by her husband. Soon the proceedings would return them to their initial tragedy.

Donald Kelley, a young neonatologist at The Woman's Hospital of Texas, was making his rounds on that day in August 1990, when he was asked to speak with a couple whose child was about to be born under the worst circumstances.

The 28-year-old mother had been admitted early that morning, little more than five months into her pregnancy. Her doctor had phoned in an order for terbutaline, an asthma treatment used to stop preterm labor. At the moment, the patient was resting and stable.

Kelley was less than a month into a three-year fellowship at Baylor College of Medicine. He had discovered during his residency at Southwestern Children's Hospital in Dallas that he enjoyed working with preterm infants, and he looked forward to a long career in a specialty that was saving more of them every year.

But could it save them at 23 weeks?

At that time, many neonatologists considered it experimental to provide anything more than warmth and fluids for an infant born that prematurely. Others, however, would have argued for aggressive medical intervention whenever there was the slightest chance of survival.

The slightest chance was, in fact, the only chance a child born at 23 weeks had 12 years ago. But it existed; and until the boundaries of viable life could be more firmly established, neonatologists had adopted an informal but widely followed standard: The decision to initiate or withhold intensive, life-sustaining treatment of the most premature newborns should be left to the parents.

Mark and Karla Miller were expecting the first child in their five-year marriage. Karla's pregnancy had been uneventful until she woke up in pain and noticed blood on her nightclothes. Karla called her obstetrician, who told her to go to the hospital.

Dr. Mark Jacobs arrived at The Woman's Hospital hoping to delay Karla's labor. While the terbutaline seemed to be working, she was sick and leaking amniotic fluid. Jacobs, deciding the child might be born that day, tracked down Kelley to confer with the Millers.

Kelley told the Millers that the fetus appeared strong and healthy, although only about 8 percent of the babies delivered at 23 weeks survive on their own. Eight of ten are disabled, according to the latest research, with one in four having cerebral palsy.

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