PDF1 - University of Maryland School of Law

clearly indicate that the committee's deliberationsactually resulted in the denial of treatment to anychild in violation of the Child Abuse Amendments, 50it does establish that during the period described inthe article the committee gave consideration tofactors impermissible under the Child AbuseAmendments. Rather than regarding itself as aprognosis committee with the role of making judgmentsabout the medical facts and then applying thedecided legal principles to them, it conducted itself,at least to some extent, as an autonomous ethicalarbiter. In significant respects, therefore, the Children'sHospital of Wisconsin Ethics Advisory Committeeappears in practice to have acted in a mannermore closely approaching the President's Commission/AAPmodel than the HHS model.The infant bioethical review committees of theAlbert Einstein College of Medicine-MontefioreMedical Center affiliated hospitals have not onlybeen the subject of published accounts, 51 but havealso been held up as "a useful reference for hospitalsconsidering the establishment of similar committees"by the HHS Inspector General. 52 Dr. Alan Fleischman,director of the Division of Neonatology andprofessor of pediatrics at the Albert Einstein Collegeof Medicine and Montefiore Medical Center, haswritten about their operation. Although he notedand quoted the standards of treatment embodied in50With regard to the four reported instances in which thecommittee agreed with the physicians and parents that treatmentshould be withheld (see supra note 39 and accompanying text), thearticle is ambiguous about how many of the cases involvedtreatment that would merely prolong dying—a legal basis fortermination of treatment—as opposed to circumstances in whichlife could be preserved but treatment was considered "inhumane"for quality of life reasons. It is also unclear which, if any, of thesecases occurred after the effective date of the Child AbuseAmendments.51Fleischman, Bioethical Review Committees in Perinatology, 14Clinics in Perinatology 379 (1987); Fleischman, An Infant BioethicalReview Committee in an Urban Medical Center, Hastings Ctr.Rep., June 1986, at 16. See also Fleischman & Murray, EthicsCommittees for Infants Doe? Hastings Ctr. Rep., December 1983,at 5 (describes "Neonatal Ethics Rounds" at Montefiore MedicalCenter that preceded formation of bioethical review committeesand sets forth Fleischman's view of the purpose of suchcommittees).52Office of Inspector General, U.S. Department of Health andHuman Services, Infant Care Review Committees Under theBaby Doe Program 11 (1987) [hereinafter Committees OIGReport]. Commenting on an earlier draft of this report, MontefioreMedical Center noted that personnel from the Office ofInspector General (OIG) "spent a full-day on-site. . .[at] Montefiore,in which OIG staff conducted case reviews and interviewedCommittee members to get an in-depth understanding of theCommittee's work." Letter from Nadia C. Adler, Vice President—LegalAffairs and General Counsel, Montefiore Medicalthe Child Abuse Amendments, 53 he described theapproach the committees take in language that couldhave come from the President's Commission report:We believe that the proper role of the ethics committee isto "decide who should decide"; that is, ethics committeesshould not. . .[arrogate] all decisions to themselves.. . .Our committee believes that there are threetypes of cases. First are those instances where treatment isclearly required based on the best interests of the infantand the future assessment of the benefits of that treatment.Second are cases where nontreatment is morally indicated—wheninfants are in the process of dying or whentreatments would be clearly futile. Third are the caseswhere in our imperfect wisdom we honestly do not knowwhat is in the best interests of the infant. This third "grayarea" comprises a significant share of the morally problematiccases in newborn nurseries. . . .On these occasionswhen the principle of best interests of the infant cannot tellus what to do, we honor two other principles—respect forthe autonomy of the family and letting those who bear theburdens make the choice; in other words, the parents whobear the burdens ought to make a decision consistent withthe range of reasonable alternatives provided by thetreating physicians. Thus, our ethics committee has agreedto differing outcomes in similar cases based on parentaldiscretion within the range of the alternatives presented bythe treating physicians. 5 *Fleischman stated that: "Although the federal regulationsprovided certain standards or guidelines, wehave proposed. . .principles that might be utilizedas the basis for decision making in complex cases andCenter, to William J. Howard, General Counsel, United StatesCommission on Civil Rights, at 5 (Nov. 11, 1988) (reprinted inapp. D). Montefiore pointed out that the Inspector General'sreport stated that the Inspector General's report described theEinstein-Montefiore Committees as "generally structured andfunctioning in conformance with the HHS model guidelines." Id.,quoting Committee's OIG Report at 11.In a letter commenting on the portion of chap. 12 critical of theOffice of Inspector General for, among other things, praising theEinstein-Montefiore Committees in its report, the InspectorGeneral wrote, "[Y]ou state that the OIG failed to review thefacts in unreported cases considered by hospital infant carereview committees. The purpose of our hospital visits was todetermine how hospital committees are structured and functioningto deal with potential baby doe situations. It was never ourintent to review actual case files." Letter from Richard Kusserow,Inspector General, to William Howard, General Counsel,U.S. Commission on Civil Rights 1-2 (Oct. 12, 1988). Referring tothe draft's criticism of the Inspector General's report fordescribing the principles used by the Einstein-Montefiore Committeeswithout pointing out their divergence from the standardsrequired by the Child Abuse Amendments, the Inspector Generalwrote, "The purpose of this portion of the report was simply toserve as a reference to other hospitals considering the establishmentof similar committees." Id.53Fleischman, Bioethical Review Committees in Perinatology, 14Clinics in Perinatology 379, 383 (1987).54Id. at 387-88.124