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9th Circuit comes to Boise to hear parent rights case

UPDATED: Tue., July 24, 2012, 4:17 p.m.

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)

BOISE - When should a parent lose custody of a young child for refusing consent for a medical procedure? How likely must the harm to the child be for that to happen, and what if the potential harm is unlikely but dire? And should doctors and police who seize custody and perform the procedure over parents’ objections bear any liability?

Those questions and more are at the heart of a parents’ rights case that brought a three-judge panel of the 9th Circuit U.S. Court of Appeals to Boise on Tuesday for the first time since 2003, to hold a special sitting to hear arguments on an appeal from parents Corissa and Eric Mueller.

The case involves the Muellers’ then-5-week-old baby, Taige, whom Corissa Mueller brought to St. Luke’s Regional Medical Center emergency room in Boise in 2002 with a low-grade fever. Doctors insisted on giving the infant a spinal tap and antibiotics because of the slight but serious risk of meningitis.

The mother refused to consent, asking instead to first call and confer with her husband and naturopathic physician; the hospital called in a social worker, who called in police and Child Protective Services, and the child was seized from her mother’s custody and the treatment given while the mother was held in a small room nearby and not permitted to use a phone.

The test found the baby just had a cold. The parents had to hire a lawyer to regain custody of their child, which they got back about 36 hours later after going to court. The Muellers sued, but a jury ruled against them in 2010 after five days of deliberations, and the Muellers were ordered to pay trial costs for the city, the emergency room doctor and the hospital.

“I think parents should care about what happens to the extent they want to make medical decisions for their children,” said Michael Rosman, attorney with the Washington, D.C.-based Center for Individual Rights, who is representing the Muellers without charge. If what happened in the Muellers’ case is legal, he said, police can seize a child from its parents’ custody simply because the parents bring the child to an emergency room with minor symptoms. “If that’s what the law is, I think parents should be terribly concerned.”

But Rich Hall, attorney for the emergency room doctor, Dr. Richard McDonald, told the judges, “I’ve tried these cases for 40 years. I’ve seen the other side,” when a doctor didn’t test for meningitis or didn’t test quickly enough; it can quickly be fatal to an infant. “In this case, what Dr. McDonald did was consistent with the standard of care.”

The appeal raises several points, including objecting to the admission of the testimony of an expert witness who told the jury he believed the child had meningitis and the treatment saved her, even though the test showed otherwise; and objecting to instructions given to the jury. If the appeal is successful, the jury verdict likely would be overturned and the case returned to Idaho for a new trial.

But the 9th Circuit judges peppered Rosman with questions Tuesday, raising serious concerns about many of his main points. They also sharply questioned the other side’s attorneys.

“This is a very difficult case,” said Senior Circuit Judge J. Clifford Wallace of San Diego. “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.”

A capacity crowd filled the courtroom for the arguments at Boise’s federal courthouse; attorneys, reporters, law students and law clerks were among those looking on, and the court permitted cameras in the courtroom, so a TV camera quietly rolled in a corner, and an AP photographer unobtrusively captured the event in photos.

“It’s a great opportunity for the legal community in Idaho to be able to watch the 9th Circuit in action, something we don’t get to see a lot of times,” said U.S. Attorney for Idaho Wendy Olson, who was in the audience, as were young staffers from her office. “This was what we call a ‘hot bench,’ where there are lots of questions for the lawyers.”

Here’s how John Runft, the Boise attorney for the Muellers, 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.”

McDonald said the baby 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,” 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 allowing an expert witness to say he thought the child did have meningitis “prejudiced our case before the jury.”

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, saying, “It’s well established in the record that she was hysterical.”

Trott questioned Hall about testimony to the jury given by a defense expert about the risk to the baby if left untreated. “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 an immediate hearing on whether custody should be removed.

“Don’t forget the cure can be worse than the disease,” he told the court. At that, Wallace retorted, “Well, how can a spinal tap be worse than death? The outcome they were worried about was death.”

After the arguments concluded, a reporter asked Rosman who paid for the medical procedure on the baby. “They tried to get the Muellers to pay for it,” he said. “The Muellers refused to pay for the procedures they didn’t authorize.” Eventually, he said, “St. Luke’s agreed to accept the insurance alone,” and forego any further payment from the parents.

Rosman said, “This case struck us as a case in which individual rights were violated. The important right of parents to make medical decisions for their children in reasonable circumstances was violated.”

Hall said the Muellers called their own expert witness who disputed the defense expert’s testimony. “There was still a risk regardless of those test results,” he said. “The issue … was the amount of that risk, the seriousness of that risk.”

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