Published online December 1, 2005
PEDIATRICS
Vol. 116
No. 6
December 2005, pp.
1601
(doi:10.1542/peds.2005-2099)
Baby Doe Rules: In Reply
Frank Clark, MD, JD
Clinical Child Health,
University of Missouri School of Medicine,
Columbia, MO 65212
In Reply.—
Thank you for the opportunity to address Dr Hurst's concerns. I have chosen to make reference to the Code of Federal Regulations rather than the actual statutes that support the regulations, because it will be easier for readers to find and follow should they choose to do so.
45 CFR 13401 forms the backbone of all state medical neglect and abuse reporting laws, and I would never consider challenging the social policy behind this statutory scheme. To serve its function, 45 CFR 1340 presumes that the failure to provide medically indicated treatment is either neglectful or abusive. Sections 1340.15 (b)(1), (2), and (3),2 collectively, are a subsection of 45 CFR 1340 that provides the 3 exceptions that allow care to be withdrawn from infants with a life-threatening condition. It is these 3 exceptions that are referred to by health care providers as the Baby Doe rules.3
Dr Hurst is correct in asserting that the Baby Doe rules provide a cause of action by state protective agencies, and I agree with her that, to the best of my knowledge, no health care provider has ever been prosecuted by a state protective agency under this authority. I would note that there is no language in the Baby Doe rules that limits the use of these regulations to state protective agencies, and similar to any other federal or state law, the Baby Doe rules and their state equivalents are available for both plaintiffs and defendants to reference in other causes of action on behalf of their clients. Defense counsel in the Montalvo case4 made just such a use of the Baby Doe rules in briefing the court.
Hurst asserts that the Montalvo courts' review of the Baby Doe rules was "gratuitous and not necessary to the decision." Although I agree that the court's decision could have rested solely on its interpretation of Wisconsin common law, I would argue that its review of the Baby Doe rules was hardly gratuitous and irrelevant dicta. The last sentence of the paragraph just preceding the court's explanation for its holding states: "In the context of treatment required after the cesarean procedure was performed on Emanuel, there are two reasons why no available, viable alternative existed to give rise to the obligation to engage in the informed consent process." After first explaining why Wisconsin common law supported its holding, the court then said: "The second reason why a viable alternative did not exist to trigger informed consent is the existence of the United States Child Abuse Protection and Treatment Act." There is no language in the opinion to indicate that the court found one or the other of its stated reasons to be stronger, more targeted to the facts at hand, or otherwise favored. I can only conclude that the court's holding could have rested solely on its analysis of the Baby Doe rules as well. It matters little whether my analysis or Hurst's viewpoint is correct; the fact remains that the Baby Doe rules have finally been interpreted and given meaning by an appellate court 18 years after being enacted. Depending on the pleadings placed before it by counsel for either party, this interpretation is now available to be adopted or rejected by any other court in the country in a variety of causes of action.
Finally, it most be noted that the Baby Doe rules were fashioned with the support of the American Academy of Pediatrics (AAP) in the cauldron of Washington politics and can therefore be construed by many as a statement of public policy. A more recently updated AAP guideline6 and the AAP guidelines7–9 referenced by Hurst, which I wholeheartedly support, were created in meeting rooms in the spirit of academic debate. As such, they are relatively free of partisan politics and guide us professionally toward a standard of care in the treatment of our patients and their families. They support a shared decision-making process with parents of critically ill newborns that allows them to incorporate an analysis of subjective family value systems (the burden of pain and suffering or quality of life) into their decision to continue, modify, or withdraw a particular treatment plan. This shared decision-making process also provides a crucial check and balance that help preserve the best interests of the child by making it more difficult for either the physician or parent(s) to make an irrational unilateral choice. In stark contrast, the Baby Doe rules, as plainly read and per the interpretive guidelines10 appended to them, rely solely on the judgment of a physician who is presumed to be acting in an objective manner. There is no allowance for shared decision-making, and parental concerns regarding pain or suffering are expressly prohibited per the interpretive guidelines.
I believe that parents are most often qualified to make a reasonable decision regarding their child's best interests that incorporates an evaluation of their child's pain and suffering. As health care providers we must recognize that, occasionally, there are times when pain and suffering outweighs a simple decision for life at all costs and that parents are in a better position to make that judgment because they usually care for the child on a more constant basis than the treating physician. I still see nothing wrong with calling for the AAP leadership to recognize that the Baby Doe rules are inconsistent with their own published guidelines.
REFERENCES
- 45 CFR 1340,
1340.1-1340.20 ( 2005) - 45 CFR 1340, 1340.15 (b)(1), (2), and (3) ( 2005)
- Kopelman LM, Irons TG, Kopelman AE. Neonatologists judge the "Baby Doe" regulations.
N Engl J Med. 1988;318
:677
–683[Abstract]
- Montalvo v Borkovec, 2002 WI App 147; 256 Wis. 2d 472; 647 N.W. 2d 413, 415 n. 1 ( 2002)
- Montalvo v Borkovec, 2002 WI App 147; 256 Wis. 2d 472; 647 N.W. 2d 413, 483 ( 2002)
- MacDonald H; American Academy of Pediatrics, Committee on Fetus and Newborn. Perinatal care at the threshold of viability.
Pediatrics. 2002;110
:1024
–1027[Abstract/Free Full Text]
- American Academy of Pediatrics, Committee on Bioethics. Guidelines on forgoing life-sustaining medical treatment.
Pediatrics. 1994;93
:532
–536[Abstract/Free Full Text]
- American Academy of Pediatrics, Committee on Fetus and Newborn. The initiation or withdrawal of treatment for high-risk newborns.
Pediatrics. 1995;96
:362
–3631[Abstract/Free Full Text]
- American Academy of Pediatrics, Committee on Bioethics. Ethics and the care of critically ill infants and children.
Pediatrics. 1996;98
:149
–152[Abstract/Free Full Text]
- 45 CFR 1340, Appendix
PEDIATRICS (ISSN 1098-4275). ©2005 by the American Academy of Pediatrics
