Texas Hospital Seeks Preemptive Court Order
for Continued Treatment of a Premature Infant:
An Ethics Committee Usurped?

By S. Van McCrary, Health Law & Policy Institute

In mid-January, a Houston area hospital asked a judge to order the hospital and its physicians to maintain life-sustaining treatment for a premature infant with a serious case of fetal alcohol syndrome. The hospital, Clear Lake Regional Medical Center owned by Columbia/HCA, is currently maintaining the infant on a ventilator but reportedly is concerned that the parents might in the future ask that treatment be stopped, even though they are not currently making such a request. State District Judge Russell Lloyd refused to issue the order.

Fetal alcohol syndrome is associated with heavy maternal consumption of alcohol during pregnancy and can result in severe mental retardation, cardiac defects, facial malformations, and joint problems. The hospital lawyer reported that the infant in question is currently on ventilator support for treatment of pneumonia but is expected to breathe on its own eventually. It was also reported that the infantís condition currently would not qualify as "terminally ill" under the Texas Natural Death Act, a statute that permits abatement of life-sustaining treatment in cases of terminal illness.

Issues were also raised regarding whether treatment might be required under the Child Abuse Amendment Act of 1984 [the "Baby Doe" regulations--42 U.S.C. 5102 (3)]. However, an extensive line of common law precedent permits withdrawal of life sustaining treatment from patients even in the absence of terminal illness. It is unclear at this time to what extent these various laws may be in conflict. Despite the potential conflict, Coumbia/HCAís request for a preemptive court order in this case could be construed as a transparent attempt to achieve legal protection for itself at the expense of the values of the patientís family.

Another aspect of the case is even more disturbing. Apparently, the parents first approached the ethics committee of Clear Lake Regional Medical Center about the case, without any expectation that hospital lawyers would be involved. Although the facts are unclear on this issue, the request for a court order apparently resulted directly from the ethics committee meeting.

This case appears to be one of the results of the jury verdict in favor of Mark and Karla Miller against another Columbia/HCA hospital in 1998 for using life-sustaining treatment to keep a severely impaired premature infant alive against the parentsí wishes. The Millerís child is now severely brain damaged and totally incapacitated.

It is highly disturbing, however, that hospital lawyers would use an ethics committee proceeding to generate preemptive legal action against the parents of a newborn patient in speculation of their future actions and the hospitalís subsequent legal responsibilities. If ethics committees are to function properly they should be accorded a sort of "sanctuary" status, where all parties can feel comfortable that their ideas and values will receive respect and consideration without generating automatic protective responses by hospital lawyers.

Although persons with legal training and expertise have a legitimate place as members of ethics committees, if such persons are hospital attorneys, they should be able to distinguish and divide their roles as ethics committee consultant on legal issues versus advocate for protecting the institutionís interests. If such lawyers are unable to make this distinction, legal advice for the ethics committee should be obtained if possible from an objective source--academic lawyers with bioethics expertise or at least lawyers with bioethics knowledge who are not employed by the institution.

Judge Lloyd was correct when he refused to issue the requested order. Such cases should not be resolved preemptively, without knowledge of the particular facts at the time a decision is required. Moreover, ethics committee proceedings should not be used a vehicle for generating protective legal action on behalf of the institution.

01/29/99