Arrow-right Camera

Eye On Boise

Tue., July 24, 2012, 11:53 a.m.

Of rights, risks and responsibilities…

Senior Circuit Judge Stephen Trott, of Boise, Idaho hears arguments in a special sitting of the United States Court of Appeals Ninth Circuit on Tuesday, July 24, 2012 at the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho. (AP / Charlie Litchfield)
Senior Circuit Judge Stephen Trott, of Boise, Idaho hears arguments in a special sitting of the United States Court of Appeals Ninth Circuit on Tuesday, July 24, 2012 at the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho. (AP / Charlie Litchfield)

Here's how John Runft, the Boise attorney in the Mueller parents' rights case that was argued before a 9th Circuit panel in Boise today, puts the legal issue at the heart of the case: "When the danger dips below a probability into a possibility, it's wrong - there should be no deprivation of the constitutional rights. One should not lose the parental rights which are in the Constitution."

The case involves a baby with a slight fever, whom an emergency room doctor said had a small - possibly 5 percent - chance of a serious bacterial infection such as meningitis. Meningitis can be fatal or cause brain damage in an infant within 12 hours. Administering a spinal tap and antibiotics to a 5-week-old infant also carries risks, though the child wasn't harmed in this case. "There is a presumption that parents act in the best interest of their children," attorney Michael Rosman told the 9th Circuit judges. "The court below recognized this" in an earlier ruling. But that presumption wasn't included in the jury's instructions in the case, he said. Plus, he argued that the allowing an expert witness to say he thought the child did have meningitis "prejudiced our case before the jury."

9th Circuit Judge Randy Smith responded, "I don't know that I can find a mistake of the law in what Judge Winmill gave as his instructions. He may have misformulated it." Judge Stephen Trott noted that the emergency room doctor conferred with a pediatrician, who concurred with his opinion. "I  know everything that happened - I read this twice," Trott told Rosman. Trott questioned how the city police detective who declared the child in imminent danger could be held responsible; he's among those being sued. "You're trying to visit on a detective a possible mistake made by a doctor."

Kirtlan Naylor, attorney for the city of Boise, defended city police officers' detention of the mother in a small room; they dragged her several steps down a hallway toward the room as she resisted. "While her detention may have been an inconvenience, it was not unreasonable under the Constitution," Naylor told the court.

Trott questioned Rich Hall, attorney for emergency room doctor Dr. Richard McDonald, about testimony to the jury  given by a defense expert. "Did he not go beyond that and say in his opinion she had meningitis, and the administration of these antibiotics saved her, regardless of the results of the lumbar test?" he asked. Hall responded, "That is one of the opinions that can be solicited from him."

When Christopher Pooser, attorney for St. Luke's, began his arguments, Trott interrupted him, asking if his argument is that "all they were doing was following state law?" Pooser said yes. He said when the hospital social worker called Child Protective Services and the Boise Police, "He was merely reporting as he was required to by the law."

Rosman said instead of seizing custody of the child, the hospital could have allowed the mother to consult with her husband and other doctor to see if she wanted to consent to the procedure, and if not, it could have called an on-call judge for a hearing on whether custody should be removed. "Don't forget the cure can be worse than the disease," he told the court. At that, Judge J. Clifford Wallace retorted, "Well, how can a spinal tap be worse than death? The outcome they were worried about was death."

At the conclusion of the arguments, which lasted a little over an hour, Wallace said, "This is a very difficult case. ... We've all found it a very difficult case." He said the court will take the case under submission, and try to get a disposition "as soon as we can."




You must be logged in to post comments. Please log in here or click the comment box below for options.

comments powered by Disqus
« Back to Eye On Boise
Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

Follow Betsy online: