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.

In December 2000, a three-judge panel from the 14th Court of Appeals in Houston reversed the jury's verdict. The majority concluded in a 13-page opinion -- authored by Justice Richard Edelman with then-chief justice Paul Murphy in agreement -- that the trial court had erred in finding HCA liable for Sidney's injuries "under the facts of this case."

Now it was the Millers' attorneys who were astounded. The appellate panel had taken obvious liberties with those facts, which, as a matter of law, had been established by the trial jury.

The most significant discrepancy was the appeals court's determination that Sidney's birth was an emergency situation not requiring parental consent. The major flaw in this conclusion is that even the U.S. Supreme Court agrees that an emergency is an "intensely factual question" that can be answered only by a jury. HCA never claimed the "emergency treatment doctrine" as a defense at trial.

Father Mark and brother Jake engage in daily play with Sidney.
Deron Neblett
Father Mark and brother Jake engage in daily play with Sidney.
Mother Karla and brother Bradley help Sidney with her meals.
Deron Neblett
Mother Karla and brother Bradley help Sidney with her meals.

To get around that, the 14th Court majority categorized the resuscitation of a newborn as "urgently needed, life-sustaining medical treatment." And so far as the appellate judges could determine, there was no state or federal precedent that grants Texas parents the right to withhold such care.

If there is such a right, the justices wrote, it can be exercised only on behalf of the terminally ill. Otherwise, wouldn't it "apply to otherwise healthy, normal children or only to those with some degree of abnormality?"

Finally, the majority concluded that the Millers had no right to withhold treatment until their child was born because a fetus is not a "person" under Roe v. Wade and the U.S. Constitution. Once Sidney was born, she required "life-sustaining medical treatment," which parents have no right to withhold, the justices said in a ruling without precedent.

They went one step further, however, by ruling that HCA wasn't required to get a court order to resuscitate Sidney because no court can make the decision between life and impairment.

Former 14th Court justice Maurice Amidei, the dissenter in the opinion, said that, in his view, HCA's argument fell apart as soon as it mentioned the word "emergency."

"If it really was an emergency," he said, "it should have been tried as an emergency."

The rest of the majority's ruling doesn't hold up well, either, Amidei says. "We've never had a case like this before in Texas. But what it came down to was a 'live person,' and the question was, Do you or do you not have to have consent to treat a 'live person'? We don't need to be getting into an argument about whether it has any rights as a fetus."

The court of appeals claimed the "implications go well beyond the facts" and effectively punted the case to the Texas Supreme Court.

Michael Sydow, the Millers' trial lawyer, says the only implications in the case derive from the appellate court's "contortion" of the evidence used by jurors to reach their verdict.

"In our system, in Texas, once the jury makes a finding, that's the truth," Sydow says. "That's it. You can't keep coming back and arguing the facts."

Decades of scientific and ethical debate have yet to resolve the medical implications of the Miller case. In 1979, ethicists at the Hastings Center, a quality-of-life think tank, compared the neonatal intensive care unit to an "oppressive medical Vietnam, the costly, sometimes abusive, use of technology with little regard for the consequences."

Twenty years later, in a report called "Neonatal Viability: Pushing the Envelope," pediatric researchers at Loyola University concluded that the legitimacy of aggressive NICU practices rested on the distinction between the standard of care and experimentation.

That's a distinction the Texas Supreme Court will now have to make in Miller v. HCA. Whatever logic justices apply to the legal arguments, the ultimate wisdom of their decision will nonetheless have to be weighed against the medical evidence. What hope could medicine offer a child like Sidney Miller today? And is it a risk Texas parents should be forced to take?

Peer-reviewed research published throughout the last decade suggests that neonatologists reached as deep into the womb as they ever would around the time Sidney was born.

A study recently analyzed infants born between 20 and 25 weeks' gestation in 276 maternity wards in Great Britain. Overall, 61 percent died before discharge. Of the survivors, 64 percent showed signs of chronic lung disease, cerebral palsy and other disabilities. In the United States, much of the research in the last decade has focused on infants born between 23 and 25 weeks. In 1995, only four out of ten lived to be discharged from the NICU. Four out of ten survivors had moderate or serious disabilities, including brain damage.

Citing those figures, the American Academy of Pediatrics conducted a survey and found that neonatologists had a "high degree of burden and internal conflict" about the level of treatment to provide in such cases. Dr. Jean Steichen, a pediatric researcher at Cincinnati Children's Hospital, says practitioners still believe the best way to deal with the uncertainty of extreme prematurity is to leave it to the parents.

"Most neonatologists would agree it's the parents' prerogative" to resuscitate at 23 weeks, Steichen says. "And I think most ethicists agree it is the parents' prerogative. Because I don't have to take this baby home that I have now decided to save against the parents' will, as the baby… needs care for many, many years."

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