• Taking Chances2:24

As a general rule, parents are given the authority to determine what type of medical care their child should receive.  In most circumstances, parents are faced with the issue of deciding which treatment plan is best suited to treat their child’s illness based upon discussions with the child’s physician.  When a child is diagnosed with a terminal illness, parents sometimes prefer to forgo heroic measures which are not aimed at extending their child’s life expectancy.  This is especially true if the parents are concerned that their child will suffer from adverse side effects.  If parents are allowed to refuse life sustaining treatment when their child is terminally ill, should the parents have the right to refuse treatment when a child is severely mentally or physically disabled?  How much autonomy should parents be given in developing a treatment plan for their child?  The Court of Appeals of Texas recently considered the issue of whether a physician could be considered negligent for implementing life-sustaining medical care to a newborn infant when the birth parents expressly stated that they wanted such treatment to be withheld. 

            Karla and Mark Miller brought suit on behalf of their child, Sidney against Hospital Corporation of America for providing medical care to Sidney which they did not consent to.  Karla was admitted to the hospital on August 17, 1990 in premature labor.  She had an estimated gestational age of 23 weeks.  Karla was also suffering from an infection which was considered life-threatening.  Both Karla’s obstetrician and a neonatologist at the hospital told Karla that if her baby was born alive, she would suffer from severe impairments.  In response, the Millers orally requested that no heroic measures be taken to save the baby.  This request was recorded in the medical records.

            After further consultation on the case, the neonatologist determined that if the baby was born alive and weighed over 500 grams, the medical staff would be obligated by hospital policy to administer life-sustaining procedures upon the child even absent the parents’ consent.  When the neonatologist told this to Mr. Miller, Mr. Miller again stated that it was his and his wife’s desire that their baby not be resuscitated.  When the child was born, the neonatologist determined that she was viable and began resuscitation efforts.  Although these efforts were successful, Sydney suffers from severe physical and mental impairments and will never be able to care for herself. 

            The Millers later filed suit against the hospital for the acts of the physicians who initiated resuscitative treatment without their consent.  The Millers also claimed that the hospital failed to have a policy that precluded treatment on a patient without consent.  The hospital maintained that the hospital personnel who resuscitated Sydney were legally obligated to save her.  The hospital also claimed that the parents had no right to withhold life-sustaining treatment in this case.  The jury found in favor of the Millers. 

            On Appeal, the court determined that the hospital could not be held legally liable for providing treatment to Sydney under the facts of the case and reversed the judgment.  In reaching its decision, the Appeals Court found that their was no statutory right for a parent to withhold medical treatment to a child who has deformities or impairments which are not terminal. 

            In Texas, there is a statute which gives parents the express right to consent to their child’s medical care.  However, there is an emergency exception to the statute which allows physicians to forgo obtaining parental consent if the child’s need for life-sustaining medical treatment is too urgent for consent to be obtained.  There is also a statute in Texas with allows parents to withdraw or withhold life-sustaining treatment from their child if there is written certification from a physician that the child’s medical condition is terminal.  Since Sydney’s medical condition was not certified as terminal, the statute authorizing the parents to withhold treatment did not apply in this case. 

            Texas law also establishes a legal duty for parents to provide needed medical care for their children, which is based upon the states interest to guard the well-being of minors.  In weighing the parent’s statutory right to consent to treatment against the state of Texas’ legal interest in preserving the well-being of minors, the Court of Appeals found that the legislature chose not to extend a parent’s right to refuse life-sustaining treatment for a disabled child who is not terminally ill.  Therefore, the Court cautioned health care providers that until a child’s medical condition can be evaluated adequately to determine if a child’s illness is terminal, a health care provider has no duty to follow a parent’s instruction to withhold urgently-needed life-sustaining treatment from their child. 

            Although parents have a general right to make medical decisions on their child’s behalf, parents do not have an unfettered right to refuse life-sustaining treatment.  The Miller case illustrates the issues both the courts and the legislatures have to deal with when assessing a parent’s right to refuse medical treatment for their child.  While parents have a right to make decisions on behalf of their minor children, the states also have a legitimate interest in the well-being of its minors.  There are times when a parents’ wishes may not necessarily be considered in a child’s best interest.  Physicians need to know what their legal responsibilities are when parents express their interest in withholding medical treatment to their child.  Physicians should work with their quality assurance departments to develop policies which follow the laws of their state.  If treatment can lawfully be withheld from a terminally-ill child, physicians should take steps to certify in the records that the child’s illness was fatal.  However, if life-sustaining treatment is being offered to a child who is disabled but not terminally ill, physicians should document the necessity and the timeliness of the treatment plan they implement, especially if the treatment contradicts the parents’ wishes.  If time permits, physicians should seek legal advise when faced with these tough ethical issues, which may even include petitioning the local court to decide what is best for the child.  Whatever the physicians’ thought process is in reaching their treatment decisions, the medical record should clearly delineate how the decision was reached.  The risks of failing to document these issues clearly in patients’ medical records may make it difficult for physicians to show that their treatment decisions comply with the law. 

Parents Deciding For Children

by Attorney Frank E. Reardon

April 2001

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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