Police, The Fourth Amendment, Qualified Immunity

Can the government take your sick infant if you disagree with emergency room doctor over best treatment strategy?

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Case: MUELLER v. CITY OF BOISE, No. 11-35351 (Ninth Circuit, September 10, 2012)

What happened: Parent took her infant to the emergency room. She wanted a second opinion before a spinal tap was performed on the infant to check for meningitis. Emergency room doctor thought it was best to do a spinal tap right away and not wait for a second opinion. Accordingly, emergency room doctor arranged for a policeman to legally remove the infant from the parent’s custody and place the child in government custody so that a social worker could consent to the spinal tap. As it turns out, the infant did not have meningitis and, fortunately, was apparently not permanently damaged by the spinal tap. The infant was returned to the parent’s custody about a day later. However, the parent felt that she had been deprived of the right to make medical decisions for her infant and sued the policeman and other involved parties. The policeman claimed qi.

Decision: The policeman gets qi, in part because there are not similar cases on point establishing the parent’s right to make medical decisions or setting a standard for determining when the parent’s decisions are so far beyond the pale such that the child should be taken away. Also, the court seemed to feel that it was reasonable for the policeman to simply accept the emergency room doctor’s recommendation of an immediate spinal tap and suspend the mother’s custody to make the spinal tap happen.

Comment: I don’t have an all-purpose solution to these kinds of cases where a parent “butts heads” with a doctor over medical treatment of a child. For example, in Christian Scientist cases I tend to think that the state should be able to take the child at some point, but this should not be easy, and should generally not be done on the say-so of a single doctor or (worse yet) a single policeman. In this case, time was somewhat of the essence, but, it is not like the infant was having a heart attack, or choking — things were not that exigent. In other words, to me, this is a very, very difficult case. I don’t have all the answers here, and I do not necessarily believe the court reached the wrong conclusion in its qi holding, but I do have some specific criticisms for this Ninth Circuit opinion (authored by Judge Trott) and I will now make them.

First criticism: The opinion states that the operative question for the policeman was whether the infant was in “imminent danger.”* I don’t think this is quite the correct question. Of course the infant is in danger, as are many, many sick children who show up in the hospital. Rather, the appropriate question is as follows: will allowing the government to seize the child sufficiently reduce the degree of danger that the child is in? If all that is required to seize the child is imminent danger, then police can seize, and hand over to Child Protective Services, every seriously sick or injured child, regardless of how blameless the parents may be. This cannot be the law. I don’t know exactly what the law should be, but it should somehow provide to limit seizures where the government seizure is unlikely to significantly improve the prospects of the child being seized. The policeman should have to consider not just the degree of danger, but also whether, and how much, a government seizure will reduce that danger. Policemen will not think this way unless courts clearly require them to think this way, and Mueller falls down in failing to provide the police with clear guidance in this respect.

Second criticism: This criticism is closely related to the previous one. In recounting how the policeman was analyzing the situation, the court noted (in this opinion and/or a previous opinion in this case also authored by Judge Trott) that the emergency room doctor told the policemen that he estimated that 5% of infants actually had meningitis and that, in those 5% of cases, some (unquantified) portion of those cases would not be able to get the infant back to the hospital in time to prevent brain damage or death or other terrible outcomes. This is a good start for the policeman’s analysis, but the opinion (this new one and the previous one) makes out like this is all the policeman really needs to know. The policeman really should be more curious. First, there is the obvious question:  what percentage of the five percent won’t make it to the procurement of a second opinion before there is serious damage from the meningitis? Second, can the irreversible damage be prevented by monitoring the infant in the hospital, without performing the spinal tap, until the parent can get his desired second opinion?  In other words, immediate spinal tap or letting the infant go home would not seem to constitute the only two strategic alternatives here. Third (and, in my opinion, most importantly), what percentage of infants suffer serious harm because of the spinal tap? Is the percentage lower than 5%? Even assuming it is lower than 5%, what is it? Is the spinal tap risk lower than the percentage of babies who are monitored in the hospital until a parent can get a second opinion (or until the fever goes away on its own)? Fourth, could reasonable doctors differ on these relative risks of spinal tap damage and meningitis damage? Judge Trott’s opinion seems to pretty much miss all of these issues. To me, that makes it just too easy for the policeman to take away the baby. I don’t think a parent should always even be required to choose the least medically risky course of treatment, at least when the differences in relative risk are small and/or arguable, but, based on Judge Trott’s two opinions in this case, I can’t even tell what the probabilistically least risky course of action would have been on that fateful night, back in 2002, for sick baby Taige.** That’s a serious problem.

Third criticism: Warning: this criticism is “for lawyer’s only” and assumes a fair bit of knowledge of qi law. Moving from the medical to the legal, I don’t like the way the opinion orders the Saucier v. Katz inquiries (that is: (i) was the seizure unConstitutional and (ii) was the unConstitutionality “clearly established” by pre-existing precedent). Of course, it is true that Pearson v. Callahan gives the court some discretion to order the two mandated Saucier inquiries, but Pearson also cautions as follows:

[T]he Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.

This case is the absolute epitome of “questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” These issues are never going to come up in a suppression hearing. These are never going to come up in a suit for injunctive relief (at least unless and until Lyons is ovverruled or seriously abrogated). Judge Trott’s opinions (the present one and the previous one) put the clearly-established cart before the Constitutional-violation horse in the exact kind of case that Pearson cautioned about. We need cases like this to make Constitutional law in the area of sick kids and well-meaning parents because it simply won’t get made under any other available legal rubric. Then again, maybe it is in the best long-run interests of society if we wait for a qi case where the child dies from the state-imposed spinal tap before CPS can return her to the parent . . . then the judge might be more inclined to require the policeman to ask all the questions that really should be asked before taking the kid away from the parent for medical-decisionmaking purposes. Hopefully, this is what Judge Trott had in mind in performing the Pearson-prioritizing here.

Fourth criticism: Snotty tone. Judge Trott is dismissive of parental rights in both this opinion and the previous one*** — not just in substance of the analysis, but also in tone. Example: “This is hardly the stuff of which a cognizable civil rights violation can be made.” Judge Trott just seems to not get it.


* Quoth the opinion: “[D]id the officers have an objectively reasonable basis for fearing that Taige was in imminent danger and for causing her parents to lose custody without a judicial hearing?”

**  It is strangely eerie that her name is so close to the word “triage.”

***  The “Post-Script” in the previous opinion is outrageous — I won’t attempt to paraphrase it — it vexes me too much!

Written by Burgers Allday

September 11, 2012 at 7:56 pm

Posted in Uncategorized

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