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9th Circuit rules against Muellers in parents’ rights case

The 9th Circuit U.S. Court of Appeals has ruled against a Boise couple who sued after their 5-week-old baby was seized from her mother's custody at a hospital emergency room and given a spinal tap and antibiotics without her parents' consent. Doctors feared meningitis, a rare but very serious risk to the baby, though the infant turned out just to have a cold. "At best, this case involves a series of nighttime emergency room judgments and decisions made under pressure about which people might differ," wrote Judge Stephen Trott in the unanimous decision. "At the end of the day, however, a jury of their peers decided on the basis of a full and fair airing of their evidence that the Muellers had not proved their case." Click below to read more.

Parents’ rights case a ‘difficult’ one…

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.

“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.” You can read my full story here at spokesman.com.

Who paid for procedure performed on baby over parents’ objections?

Here's an interesting question about the forced spinal tap that St. Luke's performed on a 5-week-old baby in 2002 over her mother's objections, seizing custody of the child to do so: Who paid for the medical procedure? I posed that question today to the Michael Rosman, attorney for Eric and Corissa Mueller in the case at the center of a 9th Circuit appeal that was argued in Boise this morning.

"They tried to get the Muellers to pay for it," Rosman 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, asked why his organization, the Washington, D.C.-based Center for Individual Rights, decided to represent the Muellers pro-bono in the case, 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."

Of rights, risks and responsibilities…

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."

Idaho sees 9th Circuit in action in key parental rights case

A capacity crowd filled a sixth-floor courtroom at Boise's federal courthouse today, as three judges from the 9th Circuit U.S. Court of Appeals sharply questioned attorneys from both sides in a parents' rights case; it was the first time the 9th Circuit has held a special sitting in Boise since 2003. 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 all of the legal externs from her office. "This was what we call a 'hot bench,' where there are lots of questions for the lawyers." She called it "a great opportunity in a case that's of great importance for the legal community."

The case involves a 5-week-old baby whose mother brought her to St. Luke's emergency room 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 parents, Corissa and Eric Mueller, sued, but a jury ruled against them, and they had to pay trial costs for the city, the emergency room doctor and the hospital. Today marked the second appeal to the 9th Circuit in the case, in which the Washington, D.C.-based Center for Individual Rights is representing the Muellers without charge. "I think parents should care about what happens to the extent they want to make medical decisions for their children," said Michael Rosman, attorney for the center. 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."

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. Today's 9th Circuit panel consisted of Judges Randy Smith, Stephen Trott and J. Clifford Wallace.

9th Circuit to hear case in Boise Tuesday

The case of a five-week-old Boise baby with a slight fever who was brought to a local emergency room and then removed forcibly from her family's custody after the mom refused to consent to a spinal tap and antibiotics goes before 9th Circuit judges on appeal Tuesday in Boise; a three-judge panel of the appellate court will hold a special sitting in Boise for the first time since 2003. It turned out the infant just had a cold. The parents sued St. Luke's hospital and the city, whose police officers removed the child from her mother, but a jury sided with the hospital and the city. Now the parents have appealed. Click below for a full report on the case from AP reporter Rebecca Boone.

9th Circuit to hold special sitting in Boise for first time since 2003, hear parents’ rights case

A three-judge panel of the 9th Circuit U.S. Court of Appeals will hold a special sitting in Boise on Tuesday for the first time since 2003, to hear oral arguments in the case of a 5-week-old baby girl who was given a spinal tap, antibiotics and steroids over her mother's objections, after the mom brought the infant to the St. Luke's emergency room with a low-grade fever at 10:15 on a summer night in 2002. When the mother, Corissa Mueller, refused the treatment, the hospital called in a hospital social worker who called police, and they then seized custody of the baby and performed the test. It found nothing. The protesting mother was dragged down the hall away from her baby by two police officers; she was kept from seeing the nursing infant for more than two hours; she was kept from using a phone to call her husband or her naturopath doctor; and the parents had to hire an attorney to regain custody of their child.

Parents Corissa and Eric Mueller sued St. Luke's, the emergency room doctor, the police officers and the city, but in 2010, a jury ruled against them after five days of deliberations, and they not only didn't recover any damages, but were ordered to pay the hospital's and city's trial costs. The Muellers have appealed to the 9th Circuit, and on Tuesday, three 9th Circuit judges - Randy Smith of Pocatello, Stephen Trott of Boise and J. Clifford Wallace of San Diego - will hear oral arguments in the appeal. The hearing will be held at the James A. McClure Federal Building and U.S. Courthouse in Boise, starting at 10 a.m.

The Muellers unsuccessfully sought class-action status in the case, to sue on behalf of all parents who bring their young children to emergency rooms. The doctor argued that the risk, though small, of potentially fatal meningitis in infants with similar symptoms meant the baby was in imminent danger. You can read the amended complaint here from the original Idaho lawsuit in U.S. District Court in Boise.