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"We cannot allow parents to make decisions before the child is born," Horton said. "To let a child die because of the potential for disability, that's defining the value of a child's life based on things we'll never know."
But it was quickly obvious that Horton had not followed the Miller case too closely. She was apparently under the impression that Sidney's brain hemorrhage had occurred two weeks after she was born -- not while she was being resuscitated just after birth.
"Are we going to punish a hospital for saving the life of a child?" Horton asked. "As far as I know, the hospital did not commit a malicious act."
Of course, the jury that heard the evidence reached a different conclusion. "Again, I'm not familiar with all the codes and the legal nuance," she said. "I haven't read all the briefs, but I got a little bit different information."
Horton also appeared to begrudge the Millers their $42.9 million judgment. Financial worries are a fact of life for the families of disabled kids, and huge liability judgments "for one child" do nothing to address those needs. If the family was truly concerned about providing for Sidney's care, they would attend state hearings on those issues, Horton argued.
When asked what brought her to Waco, Horton said she had participated in "several conferences with some of the attorneys working on the case." Had she ever met the Millers or talked to their attorneys about the issues? No, she replied.
Horton and about 130 other people learned of the Millers' issues in the arguments before the Texas Supreme Court. The family's appellate attorney, David Keltner, began with a reference to the protest outside.
"This case is not about 'opting for death,' " he said. "The Millers on seven occasions had intervened to save Sidney's life, at an expense in excess of a half-million dollars at Texas Children's Hospital."
Justice Nathan Hecht asked Keltner what prevented other less motivated parents from choosing to let their children die. Keltner pointed out that the U.S. Supreme Court addressed that concern in 1986 by blessing the "scheme" of letting a judge appoint a guardian if it was determined that parents weren't looking out for the child's best interests. Besides, Keltner reasoned, "Is the for-profit health care provider better motivated in terms of these decisions?"
"No, you let the parents decide," Keltner argued. "And if the physicians don't agree, you go an ethics committee -- HCA did not have one. Then you discuss the written policy -- they did not have one of those, either. And if there's still no agreement, the health care provider can go to the state."
Keltner had a relatively easy time with the nine justices and seemed to complete his prepared argument. HCA's appellate lawyer, Michael Hatchell, was halted by questions soon after he began. "The issue is, does anyone have the right, before a child is born, to dictate a course of treatment that will result in that child's death. In order to sustain their proposition --"
"Let me ask you something," Justice Craig Enoch interrupted. "Somebody made the decision to do something to the child. The issue here is, absent consent, what authority does the hospital have to take this step ?"
"Sidney Miller was entitled to receive precisely the same care that any full-term infant would --"
Before Hatchell could complete the thought, Justice Deborah Hankinson jumped in. "What in the family code gave the hospital the authority to make that decision?"
Hatchell paused momentarily, then launched into an argument that dominated the remainder of the session, to the detriment of the rest of his presentation. The attorney maintained that there had been consent in that the Millers' doctor invited the neonatologist in to evaluate the patient.
Again, before he could finish, Hankinson interrupted. "I go back to the question, what in the family code gave the hospital the authority?"
It was clear that at least a few of the justices had reviewed enough of the trial record to know HCA's appeal swung on certain interpretations of the evidence. Hatchell was cautioned several times not to retry the case based on that evidence, because the jury had already determined it wasn't factual.
At one point Hatchell referred to the meeting where hospital administrators had laid down the resuscitation policy. He tried to argue that Otero had resuscitated Sidney "under the form of a voluntary agreement to have the child evaluated and as a result of that decision --"
"Wasn't that issue decided?" Hankinson asked, cutting him off. "The jury decided that battery had been committed. That was decided against the hospital, and we must accept that basis."
Hatchell may have crossed a line with the justices -- all of them Republican and considered conservative -- when he unveiled a more recent defense by HCA: Sidney wasn't legally a "patient" until she was born; and at that point, it was an emergency situation that did not require parental consent.
"What authority do you have for that?" Hankinson asked.
"The Constitution does not apply to the unborn," Hatchell said. "That's Roe v. Wade."
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