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Legal Case Review: Case Summary: In the Matter of Baby “K” (4th Cir. 1994)

Cristina Palacio, Esq.
2-1-5 While this case involves a patient complaint brought under EMTALA, it is also recognized as having a subtext addressing the issue of “medical futility.” Baby K was born at a hospital in Virginia in October 1992 with anencephaly. Initially, she was placed on a ventilator in order to provide respiratory support while the treating physicians confirmed their diagnosis and to give her mother, Ms. H, an opportunity to fully understand the diagnosis and Baby K’s prognosis. Ms. H was informed that most anencephalic infants die within a few days of birth due to breathing difficulties and other complications. Since aggressive medical treatment would serve no therapeutic or palliative purpose, the physicians recommended to Ms. H that Baby K be provided only supportive care (nutrition, hydration, and warmth) and discussed the possibility of a  DNR  order. Ms. H did not, however, agree with the physicians’ recommendations and insisted that Baby K be provided the mechanical ventilation necessary. Believing that such care was inappropriate, the hospital unsuccessfully sought to transfer Baby K to another hospital; no other hospital in the area would accept Baby K. In November, Baby K was transferred to a nearby nursing home. Subsequently, Baby K was readmitted to the hospital three times due to breathing difficulties. Each time she was stabilized and discharged back to the nursing home. Allegation: After the second admission, the hospital asked the Court for a declaration that it had no obligation to provide emergency medical treatment to Baby K that it deemed medically and ethically inappropriate, i.e., that it did not have to continue to resuscitate and/or mechanically ventilate an anencephalic infant. The hospital’s petition was joined by Baby K’s guardian ad litem and her father, Mr. K. Analysis: The Court’s analysis of this case focused on the purpose and requirements of the Emergency Medical Treatment and Active Labor Act (EMTALA). The Court first noted the congressional intent “to provide an ‘adequate first response to a medical crisis’ for all patients” through EMTALA. In analyzing the statute and cases interpreting it, the court found that hospital emergency rooms must provide an appropriate medical screening examination to any individual coming the ER requesting treatment and that a hospital must offer identical screening procedures for all patients complaining of the same condition or exhibiting the same symptoms. Further, the Court stated that if a patient is found to have an emergency medical condition, then EMTALA requires the provision of stabilizing treatment. The hospital acknowledged that mechanical ventilation was necessary to stabilize Baby K. But, the hospital argued, (1) EMTALA only requires uniform treatment of all patients exhibiting the same condition, and they were proposing to treat Baby K in the same manner they would treat any anencephalic infant; (2) EMTALA only applies to patients who are transferred in an unstable condition; (3) Congress did not intend to require physicians to provide treatment outside the prevailing standard of medical care; and, finally, (4) under Virginia law, a physician is permitted to refuse to provide medical treatment that s/he considers medically or ethically inappropriate. Virginia’s Health Care Decisions Act provides that “nothing in this article shall be construed to require a physician to prescribe or render medical treatment to a patient that the physician determines to be medically or ethically inappropriate.” The Court found the hospital’s arguments “unavailing.” The relevant emergency medical condition, it said, was not anencephaly, but rather respiratory distress; and patients in respiratory distress are treated by providing resuscitative efforts. Additionally, it dismissed the argument that EMTALA applies only when transferring patients, stating that such reasoning would allow physicians to avoid providing stabilizing treatment by simply refusing to transfer the patient. With respect to Congress’s intent regarding a physician’s duty to provide treatment that exceeds the standard of care, the Court recognized “the dilemma facing physicians who are requested to provide treatment they consider morally and ethically inappropriate.” Notwithstanding, the Court could find no language in the statute or legislative history to indicate “an exception to the duty to provide stabilizing treatment when the required treatment would exceed the prevailing standard of medical care.” Neither did the Court find an EMTALA exception for providing stabilizing treatment that a physician may deem medically or ethically inappropriate. Therefore, the Court held, to the extent that Virginia state law conflicts with the requirements of EMTALA, it was preempted by EMTALA. (The Court also noted that the Virginia law relied upon by the hospital was actually inapplicable to Baby K, as the relevant section was found in the statute related to advance directives and surrogate medical decisions.) While analyzed within the context EMTALA, Baby K nevertheless provides some insight into several aspects of “medical futility.” For example, Baby K highlights an important question in deciding medical futility -what is “futile” care? Under the Baby K analysis, if the aim of CPR is to resuscitate, then futility could be argued to exist only if CPR is not expected to result in effective resuscitation, e.g., even if the patient can momentarily start breathing again, s/he will continue to suffer repeated cardiac arrests within relatively short periods of time. A significant aspect of this case is the existence of specific state law regarding a physician’s right to withhold treatment s/he believes to be medically or ethically inappropriate. While not part of the Court’s analysis, it is interesting to note that the statute requires a physician who does not want to provide treatment to make a reasonable effort to transfer the patient and to provide a life-sustaining period for at least two weeks to permit the patient to effect a transfer.   (In the case of Baby K, the hospital was unable to transfer to another hospital.) There is no provision in Florida’s Advance Directives statute (F.S. Chapter 765) permitting a physician to make a unilateral decision to withhold or withdraw life prolonging procedures. According to Florida statute, such decisions are to be made by the patient or the patient’s legal alternate decision maker (surrogate, proxy, or guardian, as appropriate). Soon after the Baby K decision, the same court tangentially addressed medical futility again in Bryan v Rectors and Visitors of the University of Virginia (4th Circuit 1996). In Bryan, the hospital admitted Mrs. Robertson for an emergency condition, treated her for 12 days, and entered a DNR order despite requests by her husband and children that all necessary measures to keep her alive be provided. Relying on the Baby K decision, the case was once again brought as an alleged EMTALA violation, and was analyzed within that context. Essentially, the Court found that EMTALA was inapplicable, as the patient was an inpatient and had been provided treatment for 12 days. Unlike Baby K, the Court did not consider the Virginia statute regarding a physician’s ability to refuse medically or ethically inappropriate care. Rather, the Court stated that “the legal adequacy of [the care provided was]…governed…by the state malpractice law that…EMTALA was not intended to preempt.” Given the narrow legal theory upon which Mrs. Robertson’s representative filed suit, the Court was not able to directly address futility issues; significantly, however, it did choose to state in concluding its opinion that “whether the conduct alleged may have violated other law is not before us. We hold only that it did not violate EMTALA….” There appears to be no similar case in Florida to provide guidance. However, a Board of Medicine disciplinary action against a Bon Secours-St. Joseph’s Hospital Emergency Department physician may provide some illumination. In March of 2003, patient M.L., a 76-year-old female, present to the hospital with loss of consciousness, respiratory distress, and prior history of cerebrovascular accident. Dr. Pfeilsticker diagnosed her as having an acute cerebrovascular accident. He discontinued supplemental oxygen and placed her in a supine position, despite the fact that she was unconscious and at risk of aspirating. The BOM found that Dr. Pfeilsticker had failed to practice medicine within the prevailing standard of care. He was not, however, directed to take any remedial clinical education. He was required to complete a medical ethics course and an end-of-life care course (and fined approximately $3,000). One possible interpretation of this BOM action is that Dr. Pfeilsticker decided that further care was medically futile, given the patient’s history and diagnosis. It is noteworthy that the BOM rejected a proposed consent agreement that did not include the ethics and end-of-life course, and merely included a fine and community service.