Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 20, 1994 TAG: 9402200055
SECTION: VIRGINIA PAGE: D-6 EDITION: METRO
SOURCE: The New York Times
DATELINE: WASHINGTON LENGTH: Long
Fairfax Hospital, a regional medical center in Falls Church, is appealing the decision, which was issued earlier this month by a panel of the U.S. Court of Appeals for the Fourth Circuit, in Richmond. The court ruled 2 to 1 that a federal law enacted eight years ago to prohibit hospitals from turning indigent patients away from emergency rooms applies much more broadly, requiring hospitals to treat or stabilize all emergency conditions, even when doctors believe that no treatment is warranted.
The ruling came in the case of a 16-month-old girl, identified in court records only as Baby K, who was born at the hospital with a catastrophic birth defect, anencephaly, the absence of all brain structures except a rudimentary brain stem. She has been kept alive much longer than most anencephalic babies normally survive because the mother has insisted that the hospital provide mechanical breathing support during the baby's periodic respiratory crises. The mother, who is not identified, is acting out of a "firm Christian faith that all life should be protected," according to an earlier court opinion in the case.
Ever since the hospital was rebuffed by a Federal District judge last summer in an initial effort to avoid further treatment, the case has been closely watched as the latest symbol of the uphill effort to harness professional judgment, technology and human emotion in the service of rational medical care.
The appeals court's legal interpretation has added an unexpected and weighty element to this painful mix. The court applied a 1986 law, the Emergency Medical Treatment and Active Labor Act, often referred to as the anti-dumping act because it was principally intended to prohibit private hospitals from dismissing uninsured patients needing emergency care.
But the law is not limited to indigent patients, and in any event, money is not directly at issue in this case because the baby and her mother are fully insured members of the Kaiser Permanente health maintenance organization, which is covering costs that are now well into the six figures. Rather, the issue is medical judgment.
Anencephalic babies are permanently unconscious and lack all sensation and cognitive ability. But they are not brain dead and so do not meet the legal definition of death that would give hospitals the clear right to discontinue life-support. The standard treatment is to keep anencephalic babies warm and feed them as their organs fail. Death usually comes from respiratory failure, because the brain stem is not adequate to the task of regulating breathing.
"There is not a physician in the country who thinks you ought to treat anencephalics," Dr. Arthur Kohrman, chairman of the committee on bioethics of the American Academy of Pediatrics, said in an interview. "This is a profoundly important case," he added, "because it strips away the ability of physicians to act as moral agents and turns them into instruments of technology. These babies are born dying, and the issue is not prolonging their death but supporting it in a humane and dignified way."
In applying the anti-dumping law, the Court of Appeals majority identified the baby's emergency medical condition not as anencephaly, for which there is no treatment, but as apnea, a periodic inability to breathe, which can be treated on a crisis basis by placing the baby on a ventilator.
Because patients with apnea from other causes would be treated in an emergency, Fairfax Hospital must treat the baby, the court said, adding that the law made no exception for situations in which "the required treatment would exceed the prevailing standard of medical care." In the majority opinion, Judges William Wilkins and Karen Williams said that Congress could write such an exception into the law but that as judges, they could not.
The court acknowledged that a Virginia law exempted doctors from having to provide care they regarded as medically or ethically inappropriate. But it held that the state law was pre-empted by the federal statute and so could not provide a basis for refusing respiratory treatment.
The dissenting judge, James Sprouse, said that Congress "even in its weakest moments" would not have meant to require doctors to disregard their medical judgment and treat Baby K. The statute should not be seen as applying at all to this case, he said, adding that anencephaly, while an "unspeakably tragic illness," should not be viewed as "a series of discrete emergency medical conditions to be considered in isolation."
The hospital decided this week to ask the full 13-member appeals court to reconsider the panel's decision. An eventual appeal to the Supreme Court by one side or the other is likely.
Meanwhile, the baby continues to live in a nursing home when she does not need to be at the hospital, to which she has been admitted three times for respiratory treatment. After her second admission last spring, the hospital went to Federal District Court in Alexandria, seeking a ruling that it would not be violating federal or state law if it refused to accept the baby again. But Federal District Judge Claude Hilton ruled against the hospital last July.
The hospital's appeal to the Fourth Circuit was supported by the baby's father, to whom the mother is not married, and by a court-appointed guardian for the baby. Earlier, a hospital ethics committee had recommended that treatment be discontinued.
The anti-dumping law provides for civil fines of up to $50,000 for hospitals or doctors who refuse to treat an emergency patient or who transfer someone whose condition has not been stabilized. Hospitals also face exclusion from the Federal Medicare program, a major source of revenue for most.
There have been only a handful of court decisions interpreting the law, none dealing with anencephaly. But two lawyers in the inspector general's office at the Department of Health and Human Services, which administers the law, said in an interview this week that both the department and the courts have been interpreting the law broadly. They said that the court of appeals ruling appeared to be correct as a matter of statutory interpretation, although they emphasized that they did not know the details of the baby's case.
Ellen Flannery, the lawyer for the baby's mother, said in an interview that the Court of Appeals had simply applied the law as Congress wrote it. "There's no dispute that the appropriate treatment for acute respiratory distress is ventilation," she said. "The care is not physiologically futile. It will achieve the result desired by the mother, and that is to stabilize the baby." The doctors' objections are based on their own view of the desirable quality of life, something the law does not address, Flannery said.
One leading medical ethicist, Dr. Robert Veatch, director of the Kennedy Institute of Ethics at Georgetown University, agreed that courts should not defer to doctors on quality-of-life judgments. "These are religious and philosophical judgments on which physicians have no more expertise than parents," Veatch, who testified in court for the baby's mother, said in an interview.
But Dr. Russell Raphaely, immediate past president of the Society of Critical Care Medicine, which entered the case on the Fairfax Hospital's behalf, said that the court had made a fundamental error in Baby K's case by focusing on the breathing problem and not the anencephaly. "It's out of context," he said. "This is technology-driven therapy that is futile and shouldn't be done."
Raphaely, a pediatric anesthesiologist, said that doctors were often blamed for driving up medical costs but then "we're denied the ability to do anything about it." Only by limiting "ethically inappropriate and medically unnecessary care" can medical costs ever begin to be brought under control, he said.
by CNB