By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
Jurors in the Miller trial did not consider whether the unauthorized treatment was financially motivated. But Mark Miller believes his daughter wouldn't have been resuscitated if he and his wife had been indigent.
"Karla was preregistered at the hospital," he recalls. "We had already filled out all the insurance forms on her policy. All she had to do was show up. Sometime between seven and eight that morning, when they found out everything had turned to shit, they told me they needed my insurance."
The Millers estimate that the cost of Sidney's care at The Woman's Hospital was $200,000. When she needed brain surgery that Woman's was unable to perform, Sidney was moved to Texas Children's Hospital. By the time she went home in December 1990, Mark Miller's $1 million policy had been exhausted.
Though Miller says the family has "spent a bunch" out of pocket since, he and Karla consider themselves relatively lucky. Sidney has undergone one major brain operation, but she hasn't been back to the hospital in four years. Still, doctors expect Sidney to live as long as anyone else, and a medical emergency is always a possibility for a child with her disabilities.
That's one reason why the appellate decision angers Sydow, the Millers' lawyer. If it's upheld by the Texas Supreme Court, Sydow predicts a "totalitarian system" of health care in Texas, whereby treatment decisions are made by for-profit providers like HCA.
"What HCA is asking the supreme court is to allow them to do the same thing they did to the Millers without the bother of being sued," Sydow says. "But who decides what treatment is 'life-sustaining'? If it's doctors and hospitals, what stops them from withholding any treatment until they see clear to call it 'life-sustaining'?"
To illustrate his point, Sydow posed the hypothetical case of a child exposed to a deadly virus. The child has only a 20 percent chance of contracting the virus, which is fatal 80 percent of the time. The available 'life-sustaining treatment,' a vaccine still in clinical trials, has been linked to brain damage. "Whose duty is it to decide which risk is worth taking?"
When the Millers arrived at The Woman's Hospital, one alternative available to them was an abortion. At the first sign of chorioamnionitis, an infection of the amniotic membrane, the potential danger to Karla would have justified aborting the fetus. If she had awoken in pain and bleeding in her third trimester and her fetus had subsequently been diagnosed with severe and irreversible abnormalities, Karla could have had an abortion.
That became less of an option, however, the longer Karla remained on the labor-inhibiting experimental drug terbutaline, which can trigger strokes. Jacobs, her obstetrician, wanted to keep Karla on the terbutaline as long as he could, but if she had the baby soon, the hospital would need to know what to do.
Donald Kelley met with the couple and recorded their decision on Karla's chart: "Parents request no heroic measures at this time." Jacobs informed the NICU staff at The Woman's Hospital that there would be no need for a neonatologist if Karla gave birth. He also suggested that, while his wife rested, Mark make arrangements for a potential funeral.
The father returned from that dark task, only to be pulled aside by Jacobs. "He didn't say anything to Karla," Miller recalls in a voice cracked by emotion. "He asked me to meet with some hospital people, said it would be a favor to him."
Miller was introduced to Anna Summerfield, then-chief administrator for The Woman's Hospital, and Dr. Ferdinand Plavidal, chief of the NICU. Summerfield told Miller there was a problem with the parents' decision. "She said, 'Our hospital has a policy that requires we resuscitate any child that weighs more than 500 grams.' "
As the tense conversation continued, Miller says, he asked for a copy of the written policy and was refused, and questioned them about federal and state practices. Medical personnel talked about premature babies who went on to become normal children. Summerfield asked him to sign a document, he says, and he refused. Miller left not knowing what would happen in the delivery room.
A half-hour after the meeting, Karla's temperature soared to over 100 degrees, and Jacobs switched her to the labor-inducing drug Pitocin. Karla gave birth. Dr. Eduardo Otero, a neonatologist sent to the room by the hospital, took the newborn from a nurse.
"He didn't weigh her, clean her up or anything," Mark Miller says. "He just put her down on the table, tilted her head back and started pushing a tube down her throat."
When her parents filed their lawsuit in September 1992, Sidney had just turned two and was in the early stage of a series of surgeries to repair or replace the shunt beneath her scalp, which drained cerebrospinal fluid along a plastic tube into her abdomen. Seizures would rack her body when something went wrong with the device, and if the Millers didn't act quickly enough, it could be fatal.
HCA spent more than five years trying to get the suit tossed out by arguing the Millers had filed a frivolous "wrongful life" claim. The trial judge rejected HCA's move to dismiss the case and barred any discussion of "wrongful life" in court as irrelevant.