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One Advocate's Viewpoint: Conflicts and Tensions in the Baby K Case

Published online by Cambridge University Press:  01 January 2021

Ellen J. Flannery
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Extract

What was really going on in the Baby K case? Many people have posed that or similar questions to me when I have been introduced as the attorney for Baby K's mother. In a nutshell, the courts in Baby K ruled that a hospital is required to provide emergency medical care to an anencephalic baby at the mother's request. In this paper, I provide some insights into the factors that underlie the litigation and the legal issues decided by the courts. In my view, this case involved a myriad of legal questions, religious principles, power struggles, and health care resources arguments that could arise in other contexts.

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Article
Information
Journal of Law, Medicine & Ethics , Volume 23 , Issue 1 , Spring 1995 , pp. 7 - 12
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

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References

In the Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 S. Ct. 91 (1994).Google Scholar
The views expressed are my own and are consistent with my obligations as an attorney for one of the parties.Google Scholar
These and other facts were stipulated by the parties and are also findings of fact by the district court.Google Scholar
Pseudonyms will be used here, as they were throughout the litigation.Google Scholar
Va. Code Ann. § 54.1–2972.Google Scholar
Hospital's brief to the court of appeals, at 4 (No. 93–1899, 4th Cir., filed Sept. 3, 1993).Google Scholar
The specific sections of said acts are as follow: Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Americans with Disabilities Act, 42 U.S.C. § 12112; the Child Abuse Amendments of 1984, 42 U.S.C. § 5102; and the Virginia Medical Malpractice Act, Va. Code Ann. § 8.01–581.20. Absent from the list of statutes under which the hospital sought relief in the district court was the Virginia Health Care Decisions Act, on which it based a large part of its argument to the court of appeals (Va. Code Ann. § 54.1–2981(b) (Cum. Supp. 1993)). This act deals with advance directives for adults, and is inapplicable to minors.Google Scholar
The district court found that the father, Mr. K, had been “only distantly involved,” but Mr. K had expressed the view at trial that treatment for Baby K should be discontinued. The guardian ad litem appointed by the district court also took the position that mechanical ventilation should not be provided. The district court's opinion made clear that the role of the guardian ad litem was to be an independent fact-gatherer and not a surrogate decision maker. This result is consistent with Virginia law.Google Scholar
For example, Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952); Lucas v. Alexander, 279 U.S. 573, 577 (1929); and Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346 (1928).Google Scholar
See Shelley v. Kraemer, 334 U.S. 1, 19 (1948).Google Scholar
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); and accord, Prince v. Massachusetts, 321 U.S. 158, 166 (1944).Google Scholar
Parham v. J.R., 442 U.S. 584, 604 (1979).Google Scholar
See, for example, Va. Code Ann. § 54.1–2969(b) (governing consent to treatment of minors when parents are unavailable); and id. § 16.1–334(1) (right of emancipated minor to make her own medical care decisions without parental consent).Google Scholar
Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 881 and n.1 (1990); and Wisconsin v. Yoder, 406 U.S. at 233.Google Scholar
For example, Jehovah's Witnesses v. King County Hosp., 279 F. Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968); and State v. Perricone, 181 A.2d 751 (N.J. 1962).Google Scholar
For example, Eisenstadt v. Baird, 405 U.S. 438, 446 n.6 (1972).Google Scholar
In re Quinlan, 355 A.2d 647 (N.J. 1976); and Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).Google Scholar
A “handicapped individual” under the Rehabilitation Act “includes an infant who is born with a congenital defect” (Bowen v. American Hosp. Assn., 476 U.S. 610, 624 (1986)).Google Scholar
The court may have considered this approach as a means of limiting the scope of its decision.Google Scholar
In the Matter of Baby K, 16 F.3d 590, 596 (4th Cir. 1994) (explaining that the hospital “asserts” and “maintains” that respiratory assistance would exceed the standard of care).Google Scholar