Medical Malpractice /Consent and Informed Consent

No liability for providing life-saving care to an infant over the parents' refusal - HCA. Inc. v. Miller, 36 S.W.3d 187 (2000)

Karla Miller was admitted to HCA's Women's Hospital of Texas in labor with a 23 week old fetus. Obstetrician Dr. Jacobs and neonatologist Dr. Kelley informed both parents that if the "baby were born alive and survived, she would suffer severe impairments. Accordingly, the Millers orally requested that no heroic measures be performed on the baby after her birth." The request was memorialized in the medical record and the neonatolgist was dismissed. However, Dr. Jacobs later "concluded that if the Millers' baby was born alive and weighed over 500 grams, the medical staff would be obligated by law and hospital policy to administer life‑sustaining procedures even if the Millers did not consent to it."   Dr. Jacobs testified that this caveat was explained to the parents. A second neonatologist, Dr. Otero, who later assisted in the delivery determined that the child named Sidney was "viable and instituted resuscitative measures." Sidney survived birth but as predicted suffered severe physical and mental impairments.

 The parents filed suit against HCA  asserting:  "(1) vicarious liability [based on an "alleged agency relationship between the hospital and Dr. Otero and an alter ego and single business enterprise theories"] for the actions of the hospital in:  (a) treating Sidney without consent;  and (b) having a policy which mandated the resuscitation of newborn infants weighing over 500 grams even in the absence of parental consent;  and (2) direct liability for failing to have policies to prevent such treatment without consent." A jury trial determined that HCA was liable for the Sidney's injuries and the court awarded the parents "$29,400,000 in past and future medical expenses, $13,500,000 in punitive damages, and $17,503,066 in prejudgment interest."

HCA's appealed asserted that it owed no duty to the plaintiffs. Specifically "HCA argues that it could not be liable for battery or negligence in treating Sidney without the consent and against the instructions of the Millers because the doctor and hospital personnel who resuscitated Sidney were legally obligated to do so and because the Millers had no right to withhold life‑sustaining medical treatment from Sidney."

The court began its analysis by observing that this case involved "three fundamental but competing legal and policy interests." First, parents have a legal duty to provide needed medical care to their children.  (Tex. Fam.Code Ann. § 151.003(a)(3) (1996)) Thus, the "failure of a parent to provide such care is a criminal offense when it causes injury or impairment to the child." (Tex. Pen.Code Ann. § 22.04(a), (b)(1) (2000);  Ahearn v. State, 588 S.W.2d 327, 336‑37 (Tex.Crim.App.1979)).

The second competing interest is that while parent have to provide medical care for their children, the parents determine how much care is too be given. "Texas law expressly gives parents a right to consent to their children's medical care." (Tex. Fam.Code Ann. § 151.003(a)(6) (1996)). The right to consent is also a right not to consent. (Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 270, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)). In addition, parents may "withhold or withdraw life‑sustaining medical treatment from their child where the child's condition has been certified in writing by a physician to be terminal, i.e., incurable or irreversible and such that even providing life‑sustaining treatment will only temporarily postpone death." (Tex. Health & Safety Code Ann. §§ 166.002(13), 166.031, 166.035 (2000) The sole exception to the parents right to consent to treatment is the "emergency exception." Under this rule a a child to be treated without consent in life threatening situations. (Moss v. Rishworth, 222 S.W. 225, 226‑27 (Tex. Comm'n App.1920, holding approved).

The third competing legal interest is the state's interest; "acting as parens patriae, to guard the well‑being of minors, even where doing so requires limiting the freedom and authority of parents over their children." (Prince v. Massachusetts, 321 U.S. 158, 166‑67, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Bowen v. American Hosp. Ass'n, 476 U.S. 610, 627 & n. 13, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986)). The state has a oversight fuction because "parents are not free to make all decisions for their children." Thus the courts may grant an order for "temporary conservatorship of a child with authority to consent to medical treatment refused by the child's parents." (Tex. Fam.Code Ann. §§ 102.003(a)(5), 105.001(a)(1), 262.201(c) (1996 & Supp.2000) O.G. v. Baum, 790 S.W.2d 839, 840‑42 (Tex.App.‑‑Houston [1st Dist.] 1990, orig. proceeding)). However, for the court to intercede an appropriate governmental agency, rather than a health care provider, must "notify in order for intervention to be sought pursuant to the State's interest in protecting the child." (In re Dubreuil, 629 So.2d 819, 823‑24 (Fla.1994)). Therefore, "until ordered to do otherwise by a court of competent jurisdiction, a health care provider's obligation is generally to comply with a patient's (or parent's) refusal of medical treatment." (Id.)

At issue in this case is whether "a parent have a right to deny urgently needed life‑ sustaining medical treatment to their child, i.e., to decide, in effect, to let their child die?" The court next observed that while a parent has a right to withhold treatment to a certifiably terminal child a different calculus is required for "children with non‑terminal impairments, deformities, or disabilities, regardless of their severity." Neither parties cited, found, or identified statutory or common law authority allowing urgently needed life‑sustaining medical treatment to be withheld from a non‑ terminally ill child by a parent. Moreover, if "parents have a common law right to withhold urgently needed life‑sustaining treatment from non‑terminally ill children [this] would pose imponderable legal and policy issues." (Nelson v. Krusen, 678 S.W.2d 918, 925 (Tex.1984) (recognizing the impossibility of making any calculation of the relative benefits of an impaired life versus no life at all)). Therefore, in light of "the high value our law places on preserving human life" the court concluded that there was "no legal basis or other rationale for concluding that Texas law gives parents a common law right to withhold urgently needed life‑sustaining medical treatment from children in circumstances" other than a certifiible terminal child situation. This conclusion extenders ot viable preterm children." (Tex. Fam.Code Ann. § 151.004 (1996)).

Having recognized that "as a general rule, that parents have no right to refuse urgently‑needed life‑sustaining medical treatment to their non‑terminally ill children" the court contemplated whether there should be an "exception for infants born so prematurely and in such poor condition that sustaining their life, even if medically possible, cannot be justified." In the present case however "(1) a sufficient record does not exist in this case to identify where to "draw the line" for such an exception;  and, more importantly, (2) it is not within the province of an intermediate appellate court to, in effect, legislate in that manner." Accordingly, "to the extent a child's condition has not been certified as terminal, a health care provider is under no duty to follow a parent's instruction to withhold urgently‑needed life‑sustaining medical treatment from their child." The court then opined that "where the need for life‑ sustaining medical treatment is or becomes urgent while a non‑terminally ill child is under a health care provider's care, and where the child's parents refuse consent to that treatment, we do not believe that a court order is necessary to override that refusal because no legal or factual issue exists for a court to decide regarding the provision of such treatment." Therefore, given the facts of this case "the Millers had no right to deny the urgently needed life‑sustaining medical treatment to Sidney, and no court order was needed to overcome their refusal."

Having having determined that the physicians involved had acted reasonably, the court summarily severed the vicarious liability action against HCA. "We sustain HCA's contentions that it did not owe the Millers a tort duty to:  (a) refrain from resuscitating Sidney;  (b) have no policy requiring resuscitation of patients like Sidney without consent;  and (c) have policies prohibiting resuscitation of patients like Sidney without consent." The court then went on to "discuss a few additional authorities which have been extensively briefed by the parties but which we do not believe bear on the disposition of the controlling issue of duty." A dissent was filed using for support many of the cases cited by the majority.  In the dissent's view, even under the ungent conditions of this case, the parents decision was controlling absent a specific court order.

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