In all but a few cases, the parents said they went alongwith their physician's recommendations and would havefollowed the same doctor's advice had his recommendationbeen different.All, and I emphasize all, the doctors we spoke withconfirmed this decisionmaking process. 9Pr<strong>of</strong>essor Turnbull told the Commission,"[P]hysicians set the agenda. The person. . .whohas the ability to set the agenda has to a large degreethe ability to control the outcome." 10In an article in Clinical Pediatrics, Drs. StephenRagatz and Patricia Ellison wrote about their owncase conferences with parents "during which they[the parents] were asked directly to give an indication<strong>of</strong> whether or not they concurred that supportbe withdrawn." 11 Coauthor Dr. Patricia Ellison, apediatric neurologist in private practice in Denverwho also holds an academic appointment, testifiedbefore the Commission. Asked whether her articlesuggested that "there was a preexisting opinion thatsupport be withdrawn and that the parents werethen asked whether they concurred or disagreed,"Dr. Ellison said: "There was not a decision [in any<strong>of</strong> those cases] ever <strong>of</strong>fered by the doctor thatsupport be withdrawn. However, it should be clearthat if the issue is being raised, this is a consideration9Protection <strong>of</strong> Handicapped Newborns: Hearing Before the UnitedStates Commission on Civil Rights 50 (1986) (vol. II) (testimony <strong>of</strong>Carlton Sherwood).10Id. at 58 (testimony <strong>of</strong> Pr<strong>of</strong>. H. Rutherford Turnbull,Department <strong>of</strong> Special Education, <strong>University</strong> <strong>of</strong> Kansas).11Ragatz & Ellison, Decisions to Withdraw Life Support in theNeonatal Intensive Care Unit, 22 Clinical Pediatrics 729, 732(1983). The physicians wrote:We initially assumed that the decision to withdraw supportwas chiefly the [prerogative] <strong>of</strong> the physician, acting inaccordance with the parents' wishes. Decisions were madeafter full discussion with the parents. We subsequentlylearned that parents considered that they had made suchdecisions, and we became more willing to let the parentsmake them, in infants who were considered eligible for sucha decision by the physician. On occasion, quality <strong>of</strong> life issueswere raised by the parents prior to discussion initiated by thephysician.Id at 729-30 (citation omitted) (emphasis added).12Protection <strong>of</strong> Handicapped Newborns: Hearing Before the UnitedStates Commission on Civil Rights 219-20 (1986) (vol. II) (testimony<strong>of</strong> Dr. Patricia Ellison, Research Pr<strong>of</strong>essor, Department <strong>of</strong>Psychology, <strong>University</strong> <strong>of</strong> Denver). Appearing before the Commission,Dr. Ellison characterized as a "misrepresentation," id. at219, the view "that there was a preexisting opinion that supportbe withdrawn and that the parents were then asked whether theyconcurred or disagreed," id. (question by Ms. Hanrahan). Cf. thelanguage in another <strong>of</strong> her articles (Walwork & Ellison, Follow-up<strong>of</strong> Families <strong>of</strong>Neonates in Whom Life Support Was Withdrawn, 24Clinical Pediatrics 14 (1985)):28in the doctor's mind as well. You are not going tohold conferences for those babies about whom thiswould not be an appropriate concern." 12 When shewas asked whether it is usually the parents or thehealth care personnel who initiate the question <strong>of</strong>continuing lifesaving support, she testified thatsometimes it comes from one and sometimes fromthe other, but that when it comes from the parents:[w]e try to respond to the questions and needs <strong>of</strong> theparents, but would never have held a conference wherethis issue <strong>of</strong> support would be set up in the sense <strong>of</strong> adecisionmaking process, unless we as physicians felt thatthis was an appropriate case to do that. We might meetwith the parents and answer questions and say, "Weunderstand your worries, but look, at this time, thingsseem to be. . .[going] this way and this is not a time forsuch a conference." 13Physicians with a bent toward denial <strong>of</strong> treatmentcan be quite insistent in conveying negative information,as they were with the parents <strong>of</strong> Baby JaneDoe: "During her five months in the intensive carenursery, Dan and Linda would see their baby smileand ask hopefully if she were making progress. No,the doctors would respond, she wasn't." 14Physicians had urged Dan and Linda to place Keri-Lynn[Baby Jane Doe] in a home for the severely disabledshortly after birth. Instead, the parents took her home.[F]amilies were told, during the decision-making conference,that the decision would be made by the physician withconsideration <strong>of</strong> the families' wishes and thoughts. . . .Id. at 16.We. . .found that the parents accepted the responsibility forthe decision to withdraw support, even when the pr<strong>of</strong>essionalstaff considered that the decision had been made by thepr<strong>of</strong>essional staff, not by the parents.Id. at 20.In her testimony, Dr. Ellison said, "It should be also well-statedthat with parents who felt that this was really something that wasnot in keeping with their concerns, none <strong>of</strong> the support was everwithdrawn from such a child. We would never have consideredsuch a thing." Protection <strong>of</strong> Handicapped Newborns: Hearing Beforethe United States Commission on Civil Rights 220 (1986) (vol. II)(testimony <strong>of</strong> Dr. Patricia Ellison, Research Pr<strong>of</strong>essor, Department<strong>of</strong> Psychology, <strong>University</strong> <strong>of</strong> Denver.)13Protection <strong>of</strong> Handicapped Newborns: Hearing Before the UnitedStates Commission on Civil Rights 239 (1986) (vol. II) (testimony<strong>of</strong> Dr. Patricia Ellison, Research Pr<strong>of</strong>essor, Department <strong>of</strong>Psychology, <strong>University</strong> <strong>of</strong> Denver). Cf. id. at 267 (testimony <strong>of</strong>Robert R. Williams, Project Analyst, D.C. Association forRetarded Citizens) ("[O]ne wonders why parents with newbornswith severe disabilities are even put in a position <strong>of</strong> having tomake such decisions when they are clearly operating under somuch stress. Physicians <strong>of</strong>ten serve to exacerbate an alreadyhighly charged and tense situation by presenting the parents <strong>of</strong> aninfant with severe disabilities with life and death choices that theywould never, ever consider presenting to parents <strong>of</strong> a nondisabledchild.").14'Adorable' Baby Jane Doe Finally Is Home, MilwaukeeSentinel, May 25, 1984, pt. 1, at 8, col. 1.
"They said she'd only know pain and that she wouldn'trecognize us," Linda said. "If we had placed her in ahome, she would have been like they said. Now, she's outand doing things." 15Although parents may seek to do what they thinkis best for their children, their assessment <strong>of</strong> what isbest depends on the information they have. Nondisabledparents who are suddenly confronted with thebirth <strong>of</strong> a child with a disability are not likely toenter the decisionmaking process with a background<strong>of</strong> adequate and accurate information. AdrienneAsch, who teaches social psychology at the CityCollege <strong>of</strong> New York, testified:[B]ecause parents <strong>of</strong> disabled children, and especiallydisabled newborns, rarely share this minority characteristic[<strong>of</strong> being a person with a disability],. . .they are in anextremely difficult position to advocate for that infant.The parents <strong>of</strong> other children with minority characteristicscan do this much better. They know what life holds instore for that infant and their child. They can advocateagainst those who would hurt their children for thoseminority characteristics, because even though they mayknow that life is fraught with problems, it is also going tocontain various joys.But the parents <strong>of</strong> a disabled infant, moments, days afterits birth, have very little such information. In fact, they arelikely to have been given information by physicians, bysocial workers, by any other pr<strong>of</strong>essionals, by clergy, thatreinforces whatever stereotypes they have about the limitsand deficits and tragedy <strong>of</strong> so-called defective, deformed,damaged infants. 16There seems to be near unanimity, from healthcare personnel who support as well as those whooppose denial <strong>of</strong> treatment, that in all but a handful<strong>of</strong> cases the manner and content <strong>of</strong> the medicalprovider's presentation <strong>of</strong> the issue will be decisivein determining the parental "decision." One nursehas written:Whether and to what extent such children are treatedcan be influenced by physicians and nurses. Suppose, forexample, the staff tells the parents, "It is possible tooperate on your baby and close his back, but his legs willstill be paralyzed and deformed. Most likely he will neverhave bowel or bladder control and will probably develop15Kerr, Baby Doe's Success^/] Progress Defying Prognosis, Newsday,Dec. 7, 1987, at 2, 23.16Protection <strong>of</strong> Handicapped Newborns: Hearing Before the UnitedStates Commission on Civil Rights 125-26 (1986) (vol. II) (testimony<strong>of</strong> Adrienne Asch, Adjunct Lecturer in Social Psychology,City College <strong>of</strong> New York). See also id. at 141 (testimony <strong>of</strong> MaryJane Owen, Director, Disability Focus, Inc.) ("Unfortunately,handicapped infants are born into alien families, families that havehydrocephalus, which may require many operations withpossible complications. Or, we can do nothing and allowhim to die." Would you be surprised if the parents optedfor death?On the other hand, a positive attitude can go a long wayin persuading parents to accept their baby. This has beenthe stance <strong>of</strong> our nursing staff. We encourage parents totouch, hold, feed, talk to, and play with their infant. Wetell them to bring in music boxes, toys, and, later, evenclothes. By focusing on the normal things the baby does,we foster a positive image <strong>of</strong> the child. For example, wemight say, "Look how strongly he sucks" and "See howtightly she holds your finger." We try to emphasize thattheir baby does things all babies do. 17One <strong>of</strong> the lead physicians involved in the selectivetreatment program at Children's Hospital <strong>of</strong>Oklahoma, 18 Dr. Richard Gross, has said: "I think ittakes a great deal <strong>of</strong> courage on the. . .[part] <strong>of</strong>parents to say, in the face <strong>of</strong> a recommendation froma physician, that they wish to go counter to that.They certainly do not have the background at thetime the child is born to really know what isexpected." 19 Dr. Mildred Stahlman was even moredirect:I can persuade 99 percent <strong>of</strong> parents to my way <strong>of</strong> thinkingif I really work at it, even if I am 100 percent wrong. If Itell them in such a way that I appear concerned and that Iam knowledgeable and that I have their interest at heartand the interest <strong>of</strong> their. . .newborn baby, there is noquestion in my mind but that they will let me "cut <strong>of</strong>f thatinfant's head." 20From a treatment perspective opposite to that <strong>of</strong> Dr.Gross, Dr. David McLone testified concerning hisexperience with parents <strong>of</strong> children with spinabifida:I have now treated about 300 newborns and had thismidnight discussion with about 300 families, and I havenot had one family, once fully informed <strong>of</strong> the availabilityand the likely outcome <strong>of</strong> treatment, who has refused tohave the back repaired at the time <strong>of</strong> birth.In my experience in the cases I am familiar with wherethe decision was made not to close the back, that decision,in essence, was made by the physician and by what he toldalready probably stated the only requirement they have <strong>of</strong> a childwas that it must be perfect. . . .").17Homer, Selective Treatment, 84 Am. J. Nursing 309, 309-10(1984).18See chap. 1 and text accompanying notes 7-15.19Take Two: Who Lives, Who Dies?—Part II (Cable NewsNetwork, Feb. 22, 1984), (Radio-TV Monitoring Service, Inc.,Transcript at 5).20Quoted in Patrick, Little Murders, 10 New Times 32, 36 (1978).29
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the provision does cover discrimina
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of the infants. The review mechanis
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Under the law, the Department of He
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that "the phrase 'or holds the reas
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allows an infant to be denied nutri
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avoid the explicit standards set fo
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(as opposed to the far) future, the
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It was recognized, therefore, that
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als with the particular disability
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cared for. They are thus different,
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medical advice. Given the magnitude
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strates that there is a grave dange
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Disincentives to Whistle BlowingDen
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Using a cumulative scaling procedur
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Of that 300 we targeted, approximat
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Conclusionphysicians set forth in t
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taking place when a report of suspe
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where the parents say "the child fe
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Nevertheless, the organization oppo
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Chapter 11The Role and Performance
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a member of the American Academy of
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possibilities that "will be most li
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clearly indicate that the committee
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Reviewing the first 30 months of th
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Webster's defines "suspected" as "t
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Chapter 12The Performance of the Fe
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The baby's doctor, E. Laurence Hode
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to achieve a reasonable life". . .w
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an unmarried mother receiving welfa
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can be sure all appropriate actions
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inquiries to determine whether they
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Chapter 13The Protection and Advoca
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facility that uses such a committee
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Chapter 14Findings and Recommendati
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as the coordination and development
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in the advisory process who is conc
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A Dissenting View on the Report Med
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arts) to depend upon knowledge of h
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Attachments to Statement of William
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medical facility. Considerations su
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Fund for the Improvement of Postsec
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eports such as Kopelman et al. demo
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Appendix 1EXPOSING OUR CHILDREN, EX
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abilities or functions, they are de
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My principal reason for objecting t
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I derive this hint from the many co
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moral distinction. A girl is a huma
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Appendix 2SURVEY OFSTATE BABY DOE P
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insure the immediate referral of po
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Hospital Liaisons Designated in Mos
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BABY DOE COMPARED WITH REGULAR CPS
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We also asked state CPS offices wha
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Limited information was available o
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one-quarter felt that baby doe case
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Appendix 3INFANT CARE REVIEW COMMIT
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and guidelines concerning the withh
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treated to assure the prompt ^repor
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3. Educating Staff and FamiliesThre
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One of the 10 ethics committees vis
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asphyxiation during the birth proce
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Prospective Review -- Each committe
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OBSERVATIONSThe inspection found th
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May 1, 1989Page 2The Commission adv
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Doe 1 admitted on the record of the
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tion is the basis for failure to tr
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her (much appreciated) vote for thi