2003) the case in which a Houston jury had awarded $60 million in real and punitive damages to a Texas couple whose 23-week,. 615-g infant was resuscitated ...
Commentary The ‘‘Emergent Circumstances’’ Exception to the Need for Consent: The Texas Supreme Court Ruling in Miller v. HCA John J. Paris, SJ, PhD Michael D. Schreiber, MD Frank Reardon, JD Journal of Perinatology (2004) 24, 337–342. doi:10.1038/sj.jp.7211105
The Texas Supreme Court has issued its long-awaited ruling in Miller v. HCA (Texas Supreme Court No. 01-0079 September 30, 2003) the case in which a Houston jury had awarded $60 million in real and punitive damages to a Texas couple whose 23-week, 615-g infant was resuscitated over the parents’ objections. The state Supreme Court upheld the 2-1 finding of the 14th District Texas Court of Appeals (HCA v. Miller., 36 S.W. 3rd 195, 2000) that no battery or negligence occurred when the physicians resuscitated the infant. The Texas Supreme Court’s ruling absolved the Hospital and its parent corporation Columbia HCA from any legal liability in the case. In doing so, it vacated the $60 million verdict. THE CASE The case arose in August, 1990 when approximately 4 months before her due date Kara Miller presented at Woman’s Hospital of Texas in premature labor. Ultrasound revealed a 629 g infant of approximately 23 weeks gestation. Tocolytics were administered to stop the labor, but were discontinued when it was learnt the mother had a life-threatening infection. Labor inducing medications were then begun. The attending obstetrician and a hospital neonatologist informed the parents that there was little chance of the infant being delivered alive. They also informed the parents that if the child were born alive, ‘‘it would most probably suffer severe impairments, including cerebral palsy, brain hemorrhaging, blindness, lung disease, pulmonary infections and mental retardation’’. Further, the father testified that the physicians told him that ‘‘they had never had such a premature infant live’’ and that anything they did to sustain the infant’s life would be ‘‘guesswork’’.
Department of Theology (J.J.P.), Boston College, Chestnut Hill, MA 02467, USA; Department of Pediatrics (M.D.S.), University of Chicago Children’s Hospital, Chicago, IL, USA; Hassan & Reardon (F.R.), Boston, MA, USA. Correspondence: Address correspondence and reprint requests to: John J. Paris, Department of Theology, Boston College, Chestnut Hill, MA 02467, USA.
With that background, the obstetrician and the neonatologist asked the parents whether they wanted their infant daughter treated aggressively if, as anticipated, they would have to induce delivery. The parents informed the physicians that they did not want any attempts at treatment. They simply wanted ‘‘to let nature take its course’’. The parents’ decision was recorded in the medical record and the obstetrician informed the medical staff that no neonatologist would be needed at the delivery. The future course for the child seemed so clear that the father left the hospital to make arrangements for his daughter’s funeral. After the parents’ decision had been agreed to by the doctors, someone on the nursing staff informed other hospital personnel that no neonatologist would be present for the delivery of the Miller baby. At a meeting called to discuss objections to that decision, the head nurse of the neonatal intensive care unit stated that hospital policy required resuscitating any baby weighing over 500 g. (A later investigation revealed that though the statement had been made, no such law or policy existed.) Once that claim had been made, it was agreed by the staff that a neonatologist would be present at the delivery to assess the baby’s age and weight. When asked by the father how he could prevent the unwanted resuscitation of his child, the hospital administrators told him that the only way to do so if the child were >500 g would be to remove his wife F who was then in a life-threatening condition F from the hospital. That was clearly not an option. To prevent further compromise to the mother’s condition, labor-inducing drugs were administered. Some 11 hours later Kara Miller delivered a 23.1-week gestational age infant girl weighing 615 g. The neonate was limp, blue, had a ‘‘below normal’’ heart rate, but gasped for air and cried spontaneously. The infant was immediately ‘‘bagged’’, intubated and placed on a ventilator. The neonatal fellow who attended at the delivery testified that the resuscitation was performed, ‘‘Because this baby is alive and this is a baby that has a reasonable chance of living’’. He went further to state, ‘‘[T]his is a baby that is not necessarily going to have problems later on. There are babies that survive at this gestational age that F with this birth weight, that later go on and do well’’. The APGAR scores were 3 at 1 minute and 6 at 10 minutes. At some point during the first days of life, the infant suffered a significant brain hemorrhage that in the Supreme Court’s words, ‘‘caused [her] to suffer severe physical and mental impairments.’’ The Court described her condition at the time of trial as: ‘‘[S]he was 7 years old and could not walk, talk, feed herself, or sit up on her own. [She] was legally blind, suffered from mental retardation,
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cerebral palsy, seizures, and spastic quadriparesis in her limbs. She could not be toilet-trained and required a shunt in her brain to drain fluids that accumulate there and needed care 24 hours a day. The evidence further demonstrated that her circumstances will not change.’’ The Millers sued the hospital and its parent corporation Columbia/HCA Healthcare Corporation (HCA) for battery and negligence for resuscitation of their daughter. A jury found that the Hospital, without the consent of the parents, had resuscitated their infant. It also found that negligent action was the cause of their daughter’s injuries. The jury awarded the family $29,400,000 in actual damages for medical expenses, $17,503,066 in prejudgment interest, and $13,500,000 in punitive damages. The latter payment was designed as punishment for improper behavior of the Hospital and a deterrent to others from engaging in similar behavior. The jury verdict was overturned in a 2-1 decision of the 14th District Texas Court of Appeals. That ruling, which was described at length in an earlier article in the Journal,1 was appealed to the Texas Supreme Court. Texas Supreme Court Opinion The Texas Supreme Court posed the question raised in Miller as follows: ‘‘This case requires us to determine the respective roles that parents and health care providers play in deciding whether to treat an infant who is born alive but in distress and is so premature that despite advancements in neonatal care, has a largely uncertain prognosis’’. In arriving at that question the Court relied heavily on the testimony of the neonatal fellow who had attended the delivery as to why he had over-ridden the parents’ refusal of treatment: Q. A.
Q.
A. Q.
A.
Can youytell us from a worst case scenario, what type of possibilities you’ve seen in your own personal practice? Well, the worst case scenario isythe baby comes out and it’s dead, it has no heart ratey. Or you have babies that actually go through a rocky start then cruise through the rest and go home. And they may have small handicaps or they may have some problems but F learning disabilities or something like that, but in general, all babies are normal children or fairly normal children. And is there any way that you could have made a prediction, at the time of Sidney’s birth, where she would fall in that range of different options? No, sir. Is there any way that you can make that decision, as to whether the newborn infant will be viable or not in a case such as Sidney’s, before the time of delivery, an assessment at the time of delivery? No.
The Texas Court observed that parents are presumed to be the appropriate decision-makers for their infants. But it noted that this 338
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parental decision-making authority is not without limits. The state, acting as parens patriae, can and does intervene to protect children from abuse and neglect or to prevent parental choices that would produce such results.2 But, as the Court, citing the United States Supreme Court’s opinion in Bowen v American Hospital Association, observed, ‘‘[A]s long as parents choose from professionally accepted treatment options the choice is rarely reviewed in court and even less frequently supervened’’. (Bowen v Am Hosp. Ass’n. 476 U.S. 610, n. 13 (1986)) State interference in such instances occurs only when parents ‘‘have made decisions that evidence substantial lack of concern for the child’s interests’’. The physician’s role in medical treatments is generally bound by patient consent. And, as is true in all American jurisdictions, the general rule in Texas is that ‘‘a physician who provides treatment without consent commits a battery’’ (Gravis v. Physicians & Surgeons Hosp., 427 S.W. 2d 310, 311 (Tex 1968)). There are, as the Texas Court acknowledged, exceptions for emergency situations where individuals are unconscious or unable to express consent. In such instances the physician can ‘‘presume’’ consent. The rule in Texas governing ‘‘presumed consent’’ for children, however, is quite stringent. The Texas Supreme Court had ruled in Moss v. Richworth that consent to operate on a minor can be presumed in an emergency situation only in ‘‘emergent circumstances, that is, when death is likely to result immediately upon failure to perform it’’ (Moss v. Richworth, 222 S.W. 226). Using that precedent the Court ruled in Miller that [A] physician, who is confronted with emergent circumstances and provides life-sustaining treatment to a minor, is not liable for not first obtaining consent from the parents. The Texas Supreme Court was very explicit that in the circumstances of the Miller case the legitimacy of the physician’s action was not based on the common law doctrine of ‘‘presumed consent’’. Rather, it held that the resuscitation was ‘‘an exception to the general rule that a physician commits a battery by providing medical treatment without consent’’. The distinction was necessary because the Millers had explicitly refused to give consent for their daughter’s resuscitation. There could not, therefore, be a presumption that the patient or proxy would have consented to the procedure had it been possible to pose the question to them. What we have here, for the first time in American jurisprudence, is the rule that in ‘‘emergent circumstances’’, that is, where death is likely to result immediately unless the treatment is administered, a physician does not need consent F actual or presumed F to treat. This is a ruling of enormously sweeping scope, albeit in a narrowly circumscribed situation. It applies, as the Court would have it, ‘‘only when there is no time to consult the parents, or seek court intervention if parents withhold consent before death is likely to result’’. The court specifically noted that it was not asked nor did it determine whether the rule it announced in Miller is applicable to adults. Journal of Perinatology 2004; 24:337–342
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The Court justifies its enormous deviation from the common law insistence on consent before a physician may legally ‘‘touch’’ a patient by quoting from the seminal Canterbury v. Spense opinion that: ‘‘[T]he harm from failing to treat outweighs any harm threatened by the proposed treatment’’ (Canterbury v. Spense, 464 F. 2d at 788, 1972). To the Court the potential harm in Miller is obvious: ‘‘Failing to provide life-sustaining treatment under emergent circumstances is death’’. To reinforce the fact that no balancing is called for in such circumstances, the Texas Court recalls its position in a wrongful life claim that, ‘‘It is impossible for the courts to calculate the relative benefits of an impaired life versus no life at all’’ (Nelson v. Krusen, 678 S.W. 2d 918, 925, Tex. 1984). A further consideration discussed by the Court was whether the hospital should have sought judicial intervention in lieu of parental consent. There was, as the dissenting judge at the Court of Appeals noted, some 11 hours between the time the parents refused consent and the delivery of the child. That was time enough he wrote, for the ‘‘doctor and a hospital administrator [to] have the luxury of multiple meetings to change the original doctors’ medical opinions’’. It was also ample time, the parents argued, for a court to review the issue. The Texas Supreme Court rejected those arguments. In doing so it cited the testimony of the neonatal fellow that the infant ‘‘could only be properly evaluated when she was born’’. Consequently, in the Court’s view, ‘‘Any decision by the Millers before Sidney’s birth would necessarily be based on speculation’’. Further, the Court opined, a predelivery decision would, ‘‘not have been a fully informed one’’. As the Texas Supreme Court saw it, the physician present at the delivery had to make ‘‘a split second decision on whether to provide life-sustaining treatment’’. In that situation, it held, ‘‘there simply was no time to obtain [the parents’] consent to treatment or to institute legal proceedings to challenge their withholding of consent without jeopardizing Sidney’s life’’. The Texas Supreme Court concludes that unlike a typical malpractice case where it must be established that the action of the provider was negligent and that the negligent behavior caused the injury,3 the issue in this case is the narrower question of ‘‘was the touching of the patient without F or even against the parents’ wishes F a battery?’’ Since failure to resuscitate an infant born at the threshold of viability would necessarily result in death before a judicial review of parental refusal could take place, the Texas Supreme Court ruled that the action of the physician was not a battery. In formulating its ‘‘emergent circumstances’’ standard, the Court rejected the argument put forth by HCA that the Baby Doe regulations (42U.S.C. 51062 (b) (2) (B)) mandated treating every newborn. Those regulations require as a precondition for federal funding of child protective service agencies that each state must implement ‘‘procedures for responding to the reporting of medical Journal of Perinatology 2004; 24:337–342
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neglect’’. Texas has such procedures in place under its Family Code and the Texas Administrative Code (TEX. FAM. CODE 261. 101, 261. 103; 40 TEX ADMIN. CODE 700.504). Further, neither the Hospital nor HCA had sought to involve child protective services in the Miller case. The Texas Supreme Court also reviewed and rejected the argument made by HCA and adopted by the Court of Appeals that parents can withhold ‘‘urgently needed life-sustaining medical treatment’’ only when the requirements of the Natural Death Act are satisfied, that is, only when the child is certified as terminal. That Act, as the Court noted, does not impair or supercede any legal right an individual may have to withhold or withdraw lifesustaining treatment in a lawful manner. Further, the issue is not on point to a battery claim for treatment against parental consent. The Texas Supreme Court’s conclusions in Miller are straightforward: the neonatologist present at the delivery ‘‘provided life-sustaining treatment [to the infant] under emergent circumstances as a matter of law’’. These circumstances provide an exception to the general rule of liability for a physician who treats a minor without parental consent. There was, consequently, no battery by the physician nor liability by HCA.
DISCUSSION Miller v. HCA is a landmark ruling, one that marks a radical shift in the common law understanding of battery, at least as applied to children. Battery, the unconsented touching of another, has a long lineage. An English court ruled in the 1767 case of Slater v. Baker and Stapleton (95 Eng. Rep. 860, K.B. 1767) that a surgeon had committed a ‘‘trespass vi & armis’’ when he broke a patient’s leg without consent to test an experimental device designed to stretch rather than compress broken legs. A ruling requiring physicians to obtain consent before ‘‘touching’’ a patient was articulated in the 1914 case of Schloendoff v. Society of New York Hospital (211 N.Y. 125, 105 N.E. 92, 1914) by Justice Benjamin Cardozo in the ringing and oft-quoted declaration that, ‘‘Every human being has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.’’ That bedrock principle of American law F which is a restatement of John Stewart Mill’s thesis in that ‘‘Over himself, over his own body and mind, the individual is sovereign’’(Mill JS. On Liberty (1859)) F finds its most recent iteration in the Massachusetts Supreme Judicial Court’s 1999 ruling in Shine v. Vega (428 Mass. 456, 709 N.E. 2d 58, 1999). There the Massachusetts Court held that even in an emergency room a physician confronting a life-threatening situation may not legally impose medical treatment on a competent patient without her consent. In the Supreme Judicial Court’s words, ‘‘[I]t is for the individual to decide whether a particular medical treatment is in 339
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[her] best interests; whether that decision is wise or unwise.’’ The Massachusetts Court then concluded, ‘‘A patient’s right to refuse medical treatment, after having been informed by her physician of the risks involved, is not undermined because the treatment involves life-saving procedures’’. That respect for individual choice has, till now, been applied to treatment decisions made by parents for infants born at the margin of viability. The 1995 joint report of the American Academy of Pediatrics Committee on Fetus and Newborns and American College of Obstetrics and Gynecologists Committee on Obstetric Practice states that, ‘‘Decisions regarding obstetric management must be made by the parents and their physicians if the neonate’s prognosis is uncertain.’’4 The Report notes that counseling on the available data on the child’s status ‘‘may result in the family choosing a noninterventive approach to delivery and management.’’ The expectation is that it is both legitimate and anticipated that parents, once informed of the risks of marked prematurity, are the ones to make the decision on whether or not to utilize aggressive interventions or to provide ‘‘comfort care’’ for their child. That position was repeated in the American Academy of Pediatrics’ guidelines for clinicians which states, ‘‘Counseling may result in the family choosing not to have active interaction for the delivery and care of the infant.’’5 The context for such decisions was the uncertainties involved in delivery of infants at the threshold of viability which the AAP defines as infants born at 22 to 25 weeks and/or weighing less than 750 g. The Academy advises clinicians that families should be supported in the ‘‘often difficult and sometimes controversial decisions’’ that arise in the care of such infants. That physicians follow those guidelines is seen in the article of Doran et al.6 on their experience in delivery room resuscitation decisions at the University of North Carolina Hospitals. They note that at their institution ‘‘[w]hen parents’ preferences were known, parents usually determined the amount of treatment provided at delivery’’. After citing ‘‘numerous outcome studies on extremely premature infants being allowed to die without resuscitation in the delivery room,’’ the authors report that in their institution resuscitation was attempted in 29% of infants born at 23 weeks. That number increased to 67% at 24 weeks, 93% at 25 weeks and 100% at 26 weeks. Noteworthy is the authors’ statement that at their hospital ‘‘treatment was invariably withheld when parents desired comfort and care only’’. Tyson et al7 put the issue of delivery room resuscitation of very premature infants into context when they write ‘‘[M]ost physicians, ethicists, religious leaders, and lay persons agree that the likelihood of survival is not the only issue that should be considered for marginally viable patients, of whatever age’’. Among other significant issues are the suffering caused by intensive care, the quality of life of survivors and the values and preferences of the patients or their surrogates. 340
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Those other considerations are highlighted in the now classic study of neonatal outcomes of very premature infants performed by Allen et al8 at Johns Hopkins. Allen’s survey of 22 to 25 week deliveries from May 1988 to September 1991 at Hopkins covers the time frame F and the standard of care in place F at the time of the Miller baby’s birth. Of the 142 infants in the study, 56 (39%) survived to age of 6 months. Survival increased with gestational age: none of 29 infants born at 22 weeks survived, as compared with six of 40 (15%) born at 23 weeks, 56% at 24 weeks and 79% at 25 weeks. More important than survival rate at 23 weeks is the finding that ‘‘the more immature the infant, the higher the incident of neonatal complication as determined by the number of days of mechanical ventilation, the length of hospital stay, the presence of retinopathy of prematurity, periventricular or intraventricular hemorrhage, or periventricular leukomalacia.’’ The finding of the Hopkins study was of the 15% of 23 weekers who did survive, only 2% did so ‘‘without severe abnormalities on cranial ultrasound’’. That translates into the stark reality that of those born at 23 weeks, the intact survival was 0.03%. Given those outcomes, Allen concludes that for those born at 23 weeks, the decision on whether to resuscitate is not one for the physician alone but ‘‘the parents, the providers and society’’. Further, she tells us that at the time of her study (1998 to 1991) these decisions were so difficult and uncertain that there were ‘‘no specific protocols’’ at Johns Hopkins for the care of such infants. Maureen Hack informs us that while the delivery of surfactant and postnatal dexamethasone helped improve neonatal survival rates of low-birth-weight infants, it did not affect the survival rate of 23 weekers.9 In her study of such infants at Cleveland’s Rainbow Babies and Childrens Hospital in Phase I (1982 to 1988), 3/37 (8%) of 23 weekers survived. In the post-surfactant Phase II period, (1990 to 1992), 2/27 (7%) survived. Further, there was no significant change in the morbidity and neurodevelopment disability of the infants in the postsurfactant period. Given the poor outcomes of those infants, Hack suggests that ‘‘prospective parents of extremely low-birth-weight infants be fully informed of the hazards of immaturity to allow them to participate in decisions as to the advisability of aggressive care at birth’’. In an editorial in The New England Journal of Medicine, Hack took an even stronger stand: ‘‘We conclude that with few exceptions, survival is limited to infants with birth weight of 600 g or more and those whose gestational age is at least 24 weeks’’.10 In the editorial she endorsed the guidelines of the Fetus and Newborn Committee of the Canadian Paediatric Society that for those born at 23 or 24 weeks, there should be flexibility with regard to resuscitation, with careful consideration of the views of the family and the condition of the infant at birth (Fetus and Newborn Committee of the Canadian Paediatric Society and the Maternal– Fetal Medical Committee of the Society of Obstetricians and Gynaecologists Canada Statement: approach to the woman with Journal of Perinatology 2004; 24:337–342
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threatened birth of an extremely low gestational age infant (22–26 weeks), Ottawa, Ont.: Canadian Paediatric Society Secretariat, October, 1993).’’ The EPICure study, designed to evaluate the outcome of all infants of less than 26 weeks gestational age born in the United Kingdom and the Republic of Ireland over a 10-month period in 1995, provides outcomes similar to those found in studies conducted in the United States.11 Of the 622 births at 23 weeks, 39% showed signs of life. Of those, 50% died in the delivery room; 11% survived to discharge. ‘‘Emergent Circumstance’’ Standard The data on survival rates and morbidity as well as the recommendation in the literature on predelivery decisions on the care of infants born at the margins of viability are a necessary background to assess the Texas Supreme Court’s ruling in Miller. The ‘‘emergent circumstances’’ standard articulated by the Texas Court assumes several conditions as facts: (1)
(2)
(3) (4) (5)
(6) (7)
(8) (9)
(10)
A physician cannot make an assessment prior to delivery as to where on the continuum F from stillborn to normal F child a 23-week 629-g infant is likely to fall. Any predelivery parental decision to withhold resuscitation would necessarily be based on ‘‘speculation’’ and therefore is inapplicable to any specific case. Any parental decision prior to delivery would not be ‘‘fully informed’’ and thus invalid. A predelivery decision to decline an attempt at resuscitation would be ‘‘below the standard of care.’’ No decision on the resuscitation of a 23-week gestational age delivery may appropriately be decided upon until a postdelivery assessment of the child’s condition is made. The assessment of the neonate is necessarily a ‘‘split-second decision’’ made by the physician at the moment of delivery. The only factor in the decision on whether to resuscitate is the physician’s judgment on the potential viability of the infant. There is no time in the postdelivery decision-making moment for parental input on whether or not to resuscitate. Any postdelivery parental decision to withhold resuscitation of an infant showing signs of life would jeopardize that infant’s chance at life and is, therefore, inappropriate. A 23-week, 615-g infant ‘‘has a reasonable chance of living.’’ Such an infant is ‘‘not necessarily going to have problems later on. Some babies at this gestational age and birth weight, ‘‘go on and do well.’’
These ‘‘facts,’’ adopted by the Court from a statement given at the trial by an HCA physician and the testimony of the neonatal fellow who attended the delivery of Baby Miller are strikingly at variance with the data found in the literature. Journal of Perinatology 2004; 24:337–342
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Further, other than when presented with a stillborn, all decision-making about whether or not to provide potentially lifeprolonging interventions for very low-birth-weight early gestational age infants is necessarily based in ‘‘speculation.’’ The epistemological ‘‘certainty’’ sought by the Court before legitimizing a decision to withhold resuscitation in such cases does not exist. The best we can achieve in these situations is not metaphysical, but moral certitude, that is, a human judgment based on available data on probabilities of occurrence. In the case of complete uncertainty F such as that we described in an article where the father of a full-term infant born with an unexpected respiratory problem demanded ‘‘guarantee my child will be normal or stop all treatment’’ F the best interests of the child require respiratory support even if the family objects to the treatment.12 When, however, we are faced with data of 15% survival, of whom only 2% are without serious neurological impairment, there is more than enough evidence to place the child within the gray zone where parental discretion on treatment should prevail.13 The Miller infant’s case goes well beyond the issue of optional therapy. Treatment of very low-birth-weight babies, as John Lantos reminds us, is ‘‘so new and its effect on this class of patients so unproven that it is an ‘innovative’ or ‘experimental’ procedure.’’14 As the standards of the Nuremberg Code make clear, patient (or parental) consent is a necessary condition before embarking upon an experimental course.15 It is not the physician’s judgment alone, but physician and patient (or parent) agreement that is required to enter a patient into an investigational or research procedure. The Texas Supreme Court’s opinion should be read narrowly. The Court, at most, recognized the right of a physician in the ‘‘emergent circumstances’’ of a newborn infant thought to be viable to resuscitate the infant without parental consent. We support such standard when the baby’s outcome is completely uncertain, such as occurs when a parent who refuses ventilatory support for a term infant. It ought not prevail, however, when the data from the literature indicate a very low likelihood of survival and a very high incidence of profound compromise for those who do survive. The evidence in this case is that prior to having been informed (incorrectly) by an administrator of a hospital policy mandating resuscitation of all babies born alive who weighed over 500 g, the obstetrician and neonatologist had accepted the parents’ decision not to attempt resuscitation on their 23.1-week, 615 g infant daughter. Neither the physicians nor the parents were confronted with complete uncertainty as to the child’s future. The physicians had informed the parents that their child ‘‘had little chance of being born alive.’’ And if she were born alive, ‘‘would most probably suffer severe impairments, including cerebral palsy, brain hemorrhaging, blindness, lung disease, pulmonary infections, and mental retardation.’’ At the time of the birth, even the most sophisticated NICUs did not have protocols for the care of such 341
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infants. The treatment, if any, would be, as the HCA physicians put it ‘‘guesswork.’’ Given that reality, both the physicians and the parents, were well within the standard of care to decide prior to the delivery to forgo any attempt at resuscitation. CONCLUSION The Texas Supreme Court was confronted with a $60 million jury verdict against a hospital for unconsented to touching. Its newly articulated ‘‘emergent circumstances’’ standard F which establishes an exception for children to the general rule that unconsented to touching constitutes a battery F shielded the physicians and HCA from the charge of battery. It also protected HCA from any legal liability in the case. Under the exception a physician may provide life-sustaining treatment to an infant judged by the physician to be viable without or even over the refusal of consent where a delay in treating would result in the child’s death. The standard does not address the issue of treatment beyond that necessary to stabilize the child until a court review of the treatment decision can be undertaken. The ‘‘emergent circumstances’’ standard does not mandate the resuscitation of all newborns showing signs of life. It merely permits providing life-sustaining treatment over parental refusal when the physician judges the infant to be potentially viable. The danger is that authorization for unconsented to touching formulated in this tort litigation might be transformed into standard practice. Trying to resuscitate all potentially salvageable newborns indifferent to the known data on mortality and morbidity would be poor medicine. It would also be tragic for infants, parents and society alike.
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2. Paris JJ, Schreiber MD. Parental discretion in refusal of treatment for newborns: a real but limited right. Clin Perinatol 1996;23:573–81. 3. Studdent DM, Mello DM, Brennan TA. Medical malpractice. N Engl J Med 2004;350:283–92. 4. American Academy of Pediatrics Committee on Fetus and Newborn, American College of Obstetrics and Gynecologists Committee on Obstetric Practice. Perinatal care at the threshold of viability. Pediatrics 1995;96:974–6. 5. American Academy of Pediatrics. Perinatal care at the threshold of viability. Pediatrics 2002;110:1024–7. 6. Doran MW, Vaness-Meehan KA, Margelis LH, et al. Delivery room resuscitation decisions for extremely premature infants. Pediatrics 1998;162:574–82. 7. Tyson JE, Younes N, Verton J, Wright L. Viability, morbidity, and resource use among newborns of 501–800 g birth weight. JAMA 1996;276:1645–51. 8. Allen MC, Donahue PK, Dusman AE. The limits of viability F neonatal outcomes of infants born at 22–25 weeks’ gestation. N Engl J Med 1993;329:1597–601. 9. Hack M, Friedman H, Fanaroff AA. Outcomes of extremely low birth weight infants. Pediatrics 1996;98:931–7. 10. Hack M, Farnoff AA. Outcomes of extremely immature infants F a perinatal dilemma. N Engl J Med 1993;329:1649–50. 11. Costeloe K, Hennessy E, Gibson A, et al. The EPICure study: outcomes to discharge from hospital for infants born at the threshold of viability. Pediatrics 2000;106:659–71. 12. Paris JJ, Bell AJ. Guarantee my child will be ‘‘normal’’ or stop all treatment. J Perinatol 1993;13:469–72. 13. Paris JJ. Quadruple Amputee Article. Get in C.V. 14. Lantos J, Miles SH, Silverstein MD, et al. Survival after cardiopulmonary resuscitation in babies of very low birth weight. N Engl J Med 1988;318: 91–5. 15. Nuremberg Code. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10. Vol. 2:181–182. Washington, DC:US Government Printing Office; 1949.
References 1. Paris JJ, Reardon F. Bad cases make bad law: HCA v. Miller is not a guide for resuscitation of extremely premature newborns. J of Perinatol 2001;21:541–4.
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