Liam Stewart-Graves, etc. v. Katherine F. Vaughn, M.D., et al.

This medical malpractice case involves an infant who

received 24 minutes of continuous resuscitative medical treatment after being born

without a heart beat. The infant survived but suffers severe and permanent

disabilities. Nichole Stewart-Graves and Todd Graves, individually, and as

guardians for their son, Liam Stewart-Graves (plaintiffs), filed suit against Dr.

Katherine Vaughn, her employer, the Vancouver Clinic, and Southwest Washington

Medical Center (defendants), claiming professional negligence and failure to obtain

informed consent. The trial court granted defendants' summary judgment motion,

ruling that a health care provider may not be held liable to an infant and/or an

infant's parents based on lack of informed consent and negligence arising from

failing to discontinue neonatal resuscitation efforts. We affirm.

FACTS

On March 2, 2004, Nichole Stewart-Graves, who was then 35 weeks

pregnant, went to the Southwest Washington Medical Center after experiencing

mild labor contractions throughout the morning. Her pregnancy had been

uncomplicated and an initial examination revealed a reassuring fetal heart rate. But

a few hours after her arrival, a fetal monitor indicated a precipitous drop in the fetal

heart rate. The attending physician obtained Stewart-Graves' verbal consent to

perform an emergency caesarean section. Hospital staff notified Dr. Vaughn, the on-

call physician for the hospital's neonatal resuscitation unit, that she was needed at

the hospital. Meanwhile, Stewart-Graves was taken to an operating room while her

husband waited in a postoperative birthing center room.

Liam was delivered at 5:48 p.m. without a heart rate or spontaneous
respiration, and with an Apgar1 score of zero. The operating physician discovered

that Stewart-Graves had suffered a placental abruption. A code team immediately

began resuscitation efforts. At 5:52 p.m., Dr. Vaughn arrived and took charge of

the resuscitation. Every two minutes a member of the code team checked for a heart

beat, finding none until 24 minutes after birth, at which time Liam's heart began to

beat spontaneously. Liam was transported to the neonatal intensive care unit of

another hospital. He survived but suffers from severe cerebral palsy, mental

retardation, a seizure disorder, microcephaly, respiratory distress requiring frequent

suctioning, and he must be fed through a feeding tube. It is undisputed that Liam's

condition is permanent and requires continuous, extensive, and tremendously costly

medical care.

During the resuscitation, Nichole was unconscious from general anesthesia.

Todd waited in the postoperative birthing room. Dr. Vaughn did not attempt to

communicate with Todd during the 20 minutes she was resuscitating Liam. But a

nurse went between the operating room and the birthing room every few minutes to

update him on the course of events.

Nichole and Todd brought an action individually and on behalf of Liam

against Dr. Vaughn, her employer, the Vancouver Clinic, and the Southwest

Washington Medical Center, alleging the defendants were liable under theories of

informed consent and negligence for denying them the opportunity to decide

whether resuscitation should continue beyond 10 minutes and for failing to

discontinue resuscitation efforts when it was no longer reasonably possible for Liam

to survive without severe brain damage and other debilitating injuries. Liam made

the same allegations as his parents regarding lack of informed consent and
negligence for continuing the resuscitation. 2

The defendants moved for summary judgment. In an affidavit, Dr. Vaughn

stated that Liam's condition at birth was "a recognized health care emergency" and

that "[i]f resuscitation would have been paused or delayed at any point, Liam

Stewart-Graves would not have survived." Clerk's Papers (CP) at 78. She also

stated that she had to focus on the resuscitation, which required immediate action,

and that "there was no time to obtain informed consent given the emergent nature of

the situation." CP at 79.

In response to the summary judgment motion, the plaintiffs submitted an

affidavit by neonatologist Dr. Carl J. Bodenstein. He opined that Liam's health care

providers violated applicable standards of care by failing to adequately resuscitate

him, by failing to obtain informed consent to continue resuscitation efforts after 10

minutes, and by failing to discontinue resuscitation efforts after 15 minutes. He did

not dispute Dr. Vaughn's statement that a pause or delay would have resulted in

Liam's death. But in his view, continuing Liam's resuscitation for 24 minutes

violated the standard of care because it was "well beyond the point that the medical

literature indicates that severe disability would be unavoidable if the infant survived

at all." CP at 200; CP at 195. According to Dr. Bodenstein, the standard of care

"required Dr. Vaughn to involve Mr. Graves in the decision whether or not to

continue resuscitative efforts inasmuch as he and his wife would be responsible to

care for their severely brain damaged child assuming Liam survived as he did in this

case." CP at 202.

In Dr. Bodenstein's view, the failure to obtain informed consent cannot be

excused on the grounds of an emergency because "the emergent circumstances of

the resuscitation ceased after 10 minutes" without a spontaneous heart rate. CP at

203. He further stated that the standard of care "required Dr. Vaughn and the

hospital code team to discontinue resuscitative efforts after 15 minutes of asystole

[no heart rate]." Id. In support, he referred to a 1991 study appearing in a peer-

reviewed journal, in which 55 of 56 infants with Apgar scores of zero at 10 minutes

after birth died, and the surviving infant was severely impaired.

The plaintiffs also submitted a declaration by Todd Graves, stating that he

would have asked the code team to cease resuscitation efforts after 10 minutes if he

had been informed that Liam would likely not survive or would survive with severe

disability. Nichole likewise declared that if she had known of the likelihood that

Liam would survive with severe disabilities, she would have wanted her husband to

direct the code team to cease resuscitation efforts.

The trial court granted summary judgment in favor of the defendants,

agreeing that they were not liable to Liam or his parents for failing to obtain consent

before continuing resuscitation beyond the point when it was highly probable that

Liam would suffer severe disabilities if he survived. The plaintiffs then sought

direct review of the trial court's summary judgment order, which this court granted.

ANALYSIS

Informed Consent Claims

Under the doctrine of informed consent, a health care provider has a

fiduciary duty to disclose relevant facts about the patient's condition and the

proposed course of treatment so that the patient may exercise the right to make an

informed health care decision. Miller v. Kennedy, 11 Wn. App. 272, 282, 522

P.2d 852 (1974), aff'd, 85 Wn.2d 151, 530 P.2d 334 (1975). A health care

provider may be liable to an injured patient for breaching this duty even if the

treatment otherwise meets the standard of care. RCW 7.70.050; Keogan v. Holy

Family Hosp., 95 Wn.2d 306, 313, 622 P.2d 1246 (1980). The doctrine of

informed consent is based on "the individual's right to ultimately control what

happens to his body." Id. at 313-14. This court first recognized the doctrine in

ZeBarth v. Swedish Hospital Medical Center, 81 Wn.2d 12, 499 P.2d 1 (1972).

The legislature subsequently codified the prima facie elements of an informed

consent claim in RCW 7.70.050. Laws of 1975-76, 2d Ex. Sess., ch. 56, § 10;

Edwin Rauzi, Informed Consent in Washington: Expanded Scope of Material

Facts That the Physician Must Disclose to His Patient, 55 Wash. L. Rev. 655

(1980).

There are certain exceptions to the duty of disclosure. It is generally

recognized that in emergency situations where immediate action is necessary for

the protection of life, consent will be implied when it is impractical to obtain

actual consent from a patient or the patient's authorized representative. See

generally W.E. Shipley, Annotation, Liability of Physician or Surgeon for

Extending Operation or Treatment Beyond That Expressly Authorized, 56

A.L.R.2d 695 (1957) (surveying cases). The emergency exception has deep roots

in the common law. See Schloendorff v. Soc'y of N.Y. Hosp., 211 N.Y. 125, 129-

30, 105 N.E. 92, 93 (1914) ("Every human being of adult years and sound mind

has a right to determine what shall be done with his own body . . . except in cases

of emergency where the patient is unconscious and where it is necessary to operate

before consent can be obtained" (emphasis added) (citation omitted), overruled, in

part, on other grounds by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3 (1957);

Restatement (second) of Torts § 892D (1979) (a person is privileged to act without

consent in order to prevent harm to another when an emergency makes it infeasible

to obtain consent). It is based on the impracticality of having an adequate,

informed consent discussion in the midst of a medical emergency, and the

importance of allowing a physician to maintain focus on providing lifesaving

treatment to the patient. See Canterbury v. Spence, 150 U.S. App. D.C. 263, 464

F.2d 772, 788-89 (1972). The presumption underlying the emergency exception is

that the harm from a failure to treat outweighs any harm threatened by the

proposed treatment. Id. at 789.

The emergency exception is codified in RCW 7.70.050(4):

If a recognized health care emergency exists and the patient is not
legally competent to give an informed consent and/or a person
legally authorized to consent on behalf of the patient is not readily
available, his consent to required treatment will be implied.

The plaintiffs here contend that dismissal of their informed consent claims on

summary judgment was improper because there are material issues of fact as to

whether "a recognized health care emergency" existed after 10 minutes of asystole

and whether Liam's father was "readily available" to consent on Liam's behalf.

The existence of a medical emergency is ordinarily a factual question for the

jury. Shine v. Vega, 429 Mass. 456, 709 N.E.2d 58, 65 (1999). Where reasonable

minds could not differ on the issue, however, a court may determine that a medical

emergency exists as a matter of law. See Keogan, 95 Wn.2d 306. In Keogan, this

court held that a medical emergency existed, as a matter of law, when a patient

arrived by ambulance to the hospital emergency room with severe, crippling chest

pain and shortness of breath. Id. at 309. Tragically, the physician treated him for

an anxiety attack, not recognizing that he was suffering a heart attack, and the

patient died. After noting that, "It is generally agreed that the doctrine of informed

consent does not apply in emergency situations requiring immediate action," this

court held in Keogan, id. at 316, that the physician had no duty to disclose

alternative diagnostic procedures before providing immediate emergency treatment

to the patient:

Keogan's intense pain, the need for immediate diagnosis of his
condition, and the fact that his condition actually was such that it
could lead to irremediable disability and quick death -- created a
medical emergency in which the emergency room physician could
not be held to the physician's duty to disclose that is applicable to
nonemergency medical care.

Id. at 316-17.

Accordingly, this court affirmed the trial court's dismissal of an informed

consent claim brought on behalf of the decedent's estate. Id. at 317.

The plaintiffs argue that Keogan is distinguishable and its holding does not

apply under the circumstances presented here. They first suggest that Keogan is

inapplicable because it was decided under the common law duty of informed

consent, not RCW 7.70.050. In adopting RCW 7.70.050, the legislature codified

the common law doctrine of informed consent as set forth in Miller, 11 Wn. App.

272. See Final B. Rep. on Substitute H.B. 1470, 44th Leg, 1st Ex. Sess., at 23

(Wash. 1976) (explaining that the bill incorporates the standard enunciated in Miller

and otherwise reflects "existing law with respect to the doctrine of informed

consent."). We find no indication that the legislature intended to abrogate the

traditionally recognized exceptions to the duty to disclose. These exceptions are

stated in Holt v. Nelson, 11 Wn. App. 230, 240-41, 523 P.2d 211 (1974), and this

court acknowledged their continued viability following the enactment of RCW

7.70.050. Smith v. Shannon, 100 Wn.2d 26, 30, 666 P.2d 351 (1983). In particular,

as under the common law, the statutory emergency exception, RCW 7.70.050(4),

requires proof of the existence of a medical emergency. Thus, Keogan's holding

has continuing application.

The plaintiffs also argue that Keogan is factually distinguishable because the

evidence in that case established that the patient "'was interested only in surcease of

his pain through any means available . . . and that he would have agreed to any care

relieving such pain.'" Br. of Appellants at 17 (quoting Keogan, 95 Wn.2d at 316).

In contrast, the evidence here suggests that Liam's parents would not have

consented to the continuation of resuscitation efforts if they had been informed of

the likelihood that he would be severely disabled, if revived. Application of the

emergency exception, however, does not turn on whether the patient would have

consented, if fully informed. Under the emergency exception, consent is implied by

law in view of the existence of a recognized health care emergency and the

impracticality of obtaining informed consent in such circumstances. Proof that a

patient would have consented if properly informed is a traditionally recognized

defense to an informed consent claim that is distinct from the emergency exception.

See Holt, 11 Wn. App. at 241. Keogan's apparent willingness to consent to any

treatment that might alleviate his severe pain is relevant to the emergency exception

only insofar as it demonstrates the impracticality of obtaining informed consent

when a patient is incapable of making a reasoned decision due to incapacitating

pain. In this case, the impracticality of obtaining informed consent is demonstrated

by other compelling facts. To an even greater extent than in Keogan, the exigencies

of the situation here required immediate treatment because the failure to treat meant

certain and immediate death.

The plaintiffs do not dispute that a recognized health care emergency existed

immediately following Liam's birth. Nor do they dispute that Liam would have

died if Dr. Vaughn had paused or delayed the resuscitation at any point. Rather,

relying on Dr. Bodenstein's declaration, they contend that the emergency ceased

when resuscitation efforts were unsuccessful after 10 minutes and it was no longer

reasonably possible for Liam to survive without severe disabilities. However, to

suggest that a medical emergency ceases to exist once it becomes apparent to a

physician that a patient will inevitably suffer severe disabilities is untenable. No

reasonable person could deny that a recognized health care emergency existed

throughout the period of Liam's resuscitation. In terms of gravity and urgency, it is

hard to imagine a situation of greater urgency than exists when a nearly full-term

newborn with no recognized prenatal disorders requires neonatal resuscitation.

Accordingly, we hold that a recognized health care emergency existed in this case,

as a matter of law, until the resuscitation ended.

Turning next to whether a legally authorized representative is "readily

available" to consent, this, too is generally a factual question that must be

determined by the jury unless reasonable minds could not differ. Undisputedly, a

parent may consent on behalf of a minor patient under RCW 7.70.065(2)(a)(iii), and

there is no doubt that Liam's father was his legally authorized representative for

purposes of giving informed consent. However, we hold that under the

circumstances presented here, as a matter of law, Liam's father was not "readily

available" within the meaning of the statute.

"Readily available" means more than mere physical proximity -- there must

be sufficient time and opportunity for discussion and deliberation. In Miller v.

HCA, Inc., 118 S.W.3d 758 (Tex. 2003), the Texas Supreme Court confronted facts

similar to those presented here, involving an infant delivered by emergency

caesarean section at 23-weeks' gestation that received life-saving resuscitation

contrary to the parents' wishes. The infant survived but later suffered a brain

hemorrhage, a common complication of premature birth, which resulted in severe

and permanent disabilities. In rejecting the parents' informed consent claim, the

court in Miller, id. at 769, concluded that even though the parents were present in

the delivery room, "there was simply no time to obtain their consent to treatment

. . . without jeopardizing [the infant's] life" because the infant might survive with

treatment but would likely die if treatment were postponed. See also Montalvo v.

Borkovec, 256 Wis. 2d 472, 647 N.W.2d 413, 420 (2002) (holding that the informed

consent doctrine does not apply in the context of emergency treatment provided to a

neonate following a caesarean procedure because the failure to treat would be

"tantamount to a death sentence"). In this case, as well, there was no time for

discussion and deliberation to consider alternatives to treatment, assuming viable

alternatives even existed.

The decision to refuse life-saving treatment is the most momentous health

care decision that an individual can make. "The choice between life and death is a

deeply personal decision of obvious and overwhelming finality." Cruzan v. Mo.

Dep't of Health, 497 U.S. 261, 281, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990). The

decision is made more complex when it has been entrusted to a surrogate decision-

maker. See id. at 287 n.12 ("The differences between the choice made by a

competent person to refuse medical treatment, and the choice made for an

incompetent person by someone else to refuse medical treatment, are so obviously

different that the State is warranted in establishing rigorous procedures for the latter

class of cases which do not apply to the former class."); Norman L. Cantor, The

Bane of Surrogate Decision-Making: Defining the Best Interests of Never-

Competent Persons, 26 J. Legal Med. 155, 162-63 (2005) (identifying several

factors that counsel caution in allowing surrogate decision-makers to make end-of-

life decisions on behalf of never-competent persons); Rebecca S. Dresser & John A.

Robertson, Quality of Life and Non-Treatment Decisions for Incompetent Patients:

A Critique of the Orthodox Approach, 17 J.L. Med. & Health Care 234, 241-42

(1989) (discussing the inherent difficulty of a fully-capacitated surrogate to consider

the point of view of a profoundly disabled person). We need not decide, here,

whether a parent may decide to refuse life-saving treatment on behalf of a child and,

if so, under what circumstances. For purposes of this analysis, we need only

recognize that such a decision cannot be truly "informed" in the context of neonatal

resuscitation when the circumstances permit no more than a hasty explanation of

probable outcomes by a physician whose attention must primarily focus on life-

saving efforts.

We hold that Liam's father was not "readily available," as a matter of law,

because there was no meaningful opportunity for a deliberate, informed decision to

refuse consent where the failure to treat meant certain and immediate death.

Wrongful Birth/Wrongful Life Claims

The plaintiffs next contend that summary judgment on their negligence

claims was improper because a genuine issue of material fact exists as to whether

Dr. Vaughn breached the applicable standard of care by failing to discontinue

resuscitation when it became highly probable that Liam would be severely disabled

if he survived. They assert that their claims properly rest on the right of parents to

prevent the birth of a child with deficits and the child's corresponding right not to

be born to suffer a severely disabled existence, as recognized in Harbeson v. Parke-

Davis, Inc., 98 Wn.2d 460, 656 P.2d 483 (1983).

We turn first to the parents' claims. In Harbeson, this court recognized that

parents may assert a cause of action for "wrongful birth" under the theories of

informed consent and negligence, based on a health care provider's failure to impart

information or to perform medical procedures with due care, when the proximate

result is the birth of a child with deficits. In that case, the mother was prescribed

Dilantin to treat her epilepsy. She and her husband informed physicians that they

planned to have children and asked whether the Dilantin would pose any risks of

birth defects. The physicians negligently failed to inform them of known risks. The

Harbesons subsequently had two children born with birth defects. They would have

chosen not to conceive if the physicians had informed them of the potential birth

defects associated with the use of Dilantin during pregnancy.

In deciding whether to permit the parents to bring a wrongful birth action, the

Harbeson court stated that "[t]he critical concept is duty. The core of our decision

is whether we should impose upon health care providers a duty correlative to

parents' right to prevent the birth of defective children." Id. at 471 (emphasis

added). This court concluded that the imposition of such a duty was appropriate in

light of advances in medical technologies which make it possible to predict the

occurrence of genetic defects and to diagnose abnormalities in the unborn fetus. Id.

at 471-72. The duty requires health care providers to impart material information as

to the likelihood of birth defects and to perform sterilization and abortion

procedures with due care.

In Benoy v. Simons, 66 Wn. App. 56, 831 P.2d 167 (1992), the Court of

Appeals correctly recognized that Harbeson does not apply when the alleged

negligence occurs after a child is born. In that case, a premature infant suffered

severe respiratory distress syndrome and a brain hemorrhage after being born by

emergency caesarean section. He was placed on a ventilator and treated in an

intensive care nursery, but about five weeks later the ventilator was removed and

the infant died. His mother argued that the wrongful birth action recognized in

Harbeson should be extended to permit suit based on the health care provider's

failure to obtain her consent before placing the infant on the ventilator. Benoy, 66

Wn. App. at 62. The Court of Appeals disagreed, stating that "[t]he analogy is

unsound because Harbeson, [98 Wn.2d] at 473, is based on recognition that parents

have a right to prevent the birth of a defective child and health care providers have a

duty to the parents correlative to that right." Benoy, 66 Wn.2d at 62. The Court of

Appeals observed that the duty recognized in Harbeson is owed by a health care

provider to a parent as patient, to provide nonnegligent genetic counseling and

prenatal care so that parents may avoid the birth of a child with deficits. The Court

of Appeals concluded that Harbeson was inapplicable because the parent was not

the patient.

We agree with the Benoy court's reasoning. The right to prevent the birth of

a child is based on the parents' constitutional right to reproductive autonomy. See

Harbeson, 98 Wn.2d at 472 (noting that "[t]he difficult moral choice" of aborting a

fetus rests with the parents) (citing Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.

Ed. 2d 147 (1973)); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.

Ed. 2d 510 (1965) (constitutional right of privacy encompasses right of married

couples to use contraception). Before birth, a fetus has no cognizable constitutional

interests to balance against the mother's liberty interest. At the point of viability,

however, the State's interest in the preservation of potential life intervenes.

Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674

(1992). Once an infant is born, of course, the parents' right to reproductive

autonomy is fully displaced by the infant's constitutionally protected right to life.

Because Liam was already born when the alleged negligence occurred, the duty we

recognized in Harbeson does not apply in this case.

The Supreme Courts of Wisconsin and Texas also have addressed the issue

of whether parents may hold a physician liable under the theories of informed

consent and/or negligence based on the failure to refrain from emergency

resuscitation of a newborn infant. Both courts have rejected such claims, reasoning

that parents do not have a right to withhold life-saving treatment from a newborn,

even when it is highly likely that the newborn will be severely disabled, if revived.

Miller, 118 S.W.3d 758; Montalvo v. Borkovec, 256 Wis. 2d 472, 647 N.W.2d 413,

420 (2002).

Montalvo involved the premature birth of an infant at 23-weeks' gestation by

emergency caesarean section. Id. The infant survived as a result of resuscitation

measures provided following birth but suffered severe disabilities. The parents

alleged that health care providers were negligent for denying them the opportunity

to refuse consent to life-saving treatment for the newborn. Under Wisconsin law, a

surrogate decision-maker may refuse consent to life-saving treatment only when an

individual is in a persistent vegetative state. Id. at 418. Similarly, federal statutory

law binding on the state prohibits health care providers from withholding
emergency care to a newborn infant.3 Accordingly, the court rejected the claim,

concluding that parents do not have a right, under state or federal law, to withhold

or withdraw immediate postnatal care from an infant.

The plaintiffs attempt to distinguish Montalvo on the basis that, unlike

Wisconsin law, Washington law extends the right to refuse life-sustaining treatment

to persons suffering a terminal condition. Br. of Appellants at 35 (citing RCW

70.122.010, the Natural Death Act). The Natural Death Act applies to competent

adults, not minors, and carefully conditions the right to refuse life-saving treatment

on fulfillment of a number of procedural safeguards that are absent under the

circumstances presented here. Our case law recognizes the constitutional right of an

incompetent adult "to refuse treatment that serves only to prolong the dying process,

given the absence of countervailing state interests." In re Welfare of Colyer, 99

Wn.2d 114, 120, 660 P.2d 738 (1983). This right may be exercised by a guardian

on behalf of an incompetent patient whose wishes cannot be known, when treatment

would provide no measure of recovery but would merely postpone death for

someone in the advanced stages of an incurable, terminal illness. In re

Guardianship of Hamlin, 102 Wn.2d 810, 815, 689 P.2d 1372 (1984).

The right to withhold life-saving treatment as recognized by statute and case

law does not support a wrongful birth claim by Liam's parents. First, Liam was

neither terminally ill nor in a persistent vegetative state. Second, when recognized,

the right to withhold life-saving treatment is personal to the patient, it does not

belong to the person who exercises that right on behalf of an incompetent. Thus,

even assuming Liam had a right to withholding of life-sustaining treatment, his

parents could not assert a cause of action based on the violation of that right.

Accordingly, we hold that a health care provider owes no duty to the parents of an

infant to discontinue resuscitation when it becomes highly probable that the infant

will be severely disabled.

The plaintiffs also contend that Liam should be permitted to pursue a

wrongful life cause of action recognized in Harbeson. As mentioned, the Harbeson

court recognized a cause of action not only for wrongful birth but also for wrongful

life. The wrongful life cause of action is "the child's equivalent of the parents'

wrongful birth action." Harbeson, 98 Wn.2d at 478. In recognizing a wrongful life

claim, this court reasoned that it would be anomalous to permit recovery by the

parents alone. Allowing recovery by the child would provide a "comprehensive and

consistent" compensation scheme and would deter malpractice. Id. at 481. Hence,

the duty of health care providers to provide nonnegligent prenatal counseling and

medical care extends to children not yet conceived or born. Id.

Relying on Harbeson, Liam insists that he may assert a wrongful life claim

regardless of whether this court recognizes his parents' claim of wrongful birth.

The respondents contend that the failure of Liam's parents' wrongful birth claim

precludes Liam's wrongful life claim because the latter is derivative of the former.

Whether a wrongful life claim is described as derivative of a parent's

wrongful birth claim or whether the claim is viewed as an independent cause of

action is irrelevant. As discussed above, Harbeson applies when a health care

provider breaches a prenatal duty to parents and children; it does not apply when the

breach occurs after birth, as allegedly occurred in this case.

Standard of Care Claims

The plaintiffs also claim negligence based on the respondents' failure to

follow the standard of care in providing medical treatment. Similarly, amicus

Washington State Trial Lawyers Association Foundation argues that although the

wrongful birth and wrongful life claims recognized in Harbeson may be inapt, the

principle recognized in that case -- that a disabled life may itself be a legally

cognizable injury when the alternative is nonexistence -- may be exported to support

a negligence claim under our medical malpractice statute. RCW 7.70.040.

Relying on Dr. Bodenstein's affidavit, the plaintiffs contend that an issue of

fact exists as to whether Dr. Vaughn breached the standard of care by failing to stop

the resuscitation after 15 minutes of asystole. The basis for Dr. Bodenstein's

conclusion is that the resuscitation continued "well beyond the point that the

medical literature indicates that severe disability would be unavoidable if the infant

survived at all." CP at 200. Further, according to Dr. Bodenstein, the standard of

care "required Dr. Vaughn to involve Mr. Graves in the decision whether or not to

continue resuscitative efforts inasmuch as he and his wife would be responsible to

care for their severely brain damaged child assuming Liam survived as he did in this

case." CP at 202.

We reject the plaintiffs' claim and hold that, as a matter of law, we will not

recognize a standard of care that requires a health care provider to withhold

treatment of a newborn infant based on the likelihood that the infant will be

severely disabled, if it survives.

As recognized by statute and case law, under certain circumstances, an adult

may choose to refuse life-sustaining treatment in exercising the right to bodily

integrity and the constitutional right to privacy. See ch. 70.122 RCW (Natural
Death Act);4 In re Guardianship of Grant, 109 Wn.2d 545, 747 P.2d 445, 757 P.2d

534 (1987); Hamlin, 102 Wn.2d 810; Colyer, 99 Wn.2d 114.5 It arises from a

person's constitutional right to privacy and right to bodily integrity. The right is not

absolute, however, but may be overcome by countervailing state interests,

including: (1) the preservation of life, (2) the protection of innocent third parties, (3)

the prevention of suicide, and (4) maintaining the ethical integrity of the medical

profession. Grant, 109 Wn.2d at 556; see also Cruzan, 497 U.S. at 284 (the state

may require "clear and convincing" evidence of an incompetent patient's wishes as

a condition for allowing the withdrawal of life-sustaining medical treatment).

As this court has recognized, the State's interest in the preservation of life

may permit the State to compel a patient to accept life-sustaining treatment. Colyer,

99 Wn.2d at 124. However, if the patient's condition is hopeless and there is "'no

reasonable possibility of returning to a cognitive, sapient state,' the patient's right of

privacy outweighs the State's interest in preserving life." Id. at 134 (quoting

Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 370 N.E.2d

417 (1977) (recognizing right to withhold life-sustaining treatment from a formerly

competent adult in a permanent vegetative state)). Similarly, the State's interest in

preserving life weakens considerably "if treatment will merely postpone death for a

person with a terminal and incurable condition." Grant, 109 Wn.2d at 556.

However, this court has "stress[ed] the distinction between treatment which is

expected to result in some measure of recovery and that which merely postpones

U.S. 702, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997).

death." Hamlin, 102 Wn.2d at 815 (allowing the withholding of life-sustaining

treatment from a never-competent adult in a persistent vegetative state).

Accordingly, there must be agreement by at least two physicians as to the patient's

prognosis. Grant, 109 Wn.2d at 566. In the case of a newly born viable infant

requiring emergency resuscitation, the preservation of life is an important interest.

Whether the infant's condition is "hopeless" cannot be determined on the basis of

statistics and probabilities but requires assessment of the infant's actual condition
once the infant is stable.6

The State's interest in protecting innocent third parties also may prevail over

a patient's right to refuse life-sustaining treatment. This interest is implicated when

an immediate family member disagrees with the decision to withhold life-sustaining

treatment from an incompetent patient. See id. at 556-57. In Grant, this court

reasoned that the State's interest in protecting innocent third parties was not

implicated because the patient's immediate family members unanimously agreed

that withholding life-sustaining treatment was in the patient's best interests. In this

case, there was no unanimous agreement of Liam's immediate family members

because his mother was unconscious. Where, as here, a parent is temporarily

unavailable to participate in the decision, the State's interest in protecting innocent

third parties weighs heavily against finding a right to refuse life-sustaining

treatment.

The remaining interest identified in Grant, which is implicated here, is the

State's interest in maintaining the ethical integrity of the medical profession. By

statute, health care providers are protected from liability for refusing to comply with

a patient's advance directive to withhold or withdraw life-sustaining treatment.

RCW 70.122.060. In allowing the withdrawal of life-sustaining treatment from a

never-competent, terminally-ill patient, this court reasoned that the ethical integrity

of the medical profession was not implicated because the prevailing ethical

standards recognized that this may be in the patient's best interest. Grant, 109

Wn.2d at 557. Moreover, under our case law a physician who disagrees with the

decision to withhold or withdraw life-sustaining treatment may seek judicial

intervention. Colyer, 99 Wn.2d at 132-33. The ethical integrity of the profession

would be gravely compromised by recognizing the right of a newborn viable infant,

through its guardian, to refuse life-sustaining treatment when the infant is neither

terminally ill nor comatose, but suffers from some as-yet unquantifiable level of

disability. Unlike in the case of the terminally ill and comatose, there is no

emerging medical consensus that it is ethically appropriate to withdraw life-
sustaining treatment from the disabled, even the severely disabled. 7

Even if we were to recognize that a patient may choose to refuse life-

sustaining treatment as a personal medical decision, that is not to say that a

physician may unilaterally impose such a value preference under the guise of an

expert medical judgment. The right to refuse life-sustaining treatment belongs to

the patient. Until the patient exercises that right, "physicians are under an ethical,

moral and legal duty to treat the patient so as to advance his recovery and alleviate

his suffering." Hamlin, 102 Wn.2d at 819. Physicians must presume that life is

preferable to death, even if that means a severely disabled life.

This court has repeatedly acknowledged that the withholding of life-

sustaining treatment implicates important policy considerations that the legislature

is best able to address. Id. at 822 ("The Legislature is the better forum in which to

fashion the necessary procedures to safeguard the rights and liabilities of the many

persons and institutions involved in this complex arena."); Colyer, 99 Wn.2d at 118

(noting that the Natural Death Act is "a salutary step towards establishing legislative

guidance in this area"). By enacting RCW 70.122.060, the legislature expressed an

unequivocal policy to absolve health care providers from liability for refusing to

participate in the withholding or withdrawal of life-sustaining treatment. Although

the Natural Death Act does not apply here, holding the defendants liable for

wrongfully prolonging Liam's life would be inconsistent with the public policy

expressed in the act.

Dr. Bodenstein's conclusion regarding the standard of care rests on the

premise that death is preferable to a severely disabled life as a matter of medical

judgment. But that is a value judgment that may not be resolved by expert medical

opinion. Just as Dr. Bodenstein's opinion was insufficient to raise an issue of

material fact as to the existence of a medical emergency, it is insufficient to raise an

issue of material fact as to the standard of care. See Guile v. Ballard Cmty. Hosp.,

70 Wn. App. 18, 25, 851 P.2d 689 (1993) (expert's unsupported assertion that a

physician violated the standard of care held insufficient to raise a genuine issue of

material fact).

Accordingly, we affirm the trial court's grant of summary judgment.

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