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Finally, the majority concluded that the Millers had no right to withhold treatment until their child was born because a fetus is not a "person" under Roe v. Wade and the U.S. Constitution. Once Sidney was born, she required "life-sustaining medical treatment," which parents have no right to withhold, the justices said in a ruling without precedent.

They went one step further, however, by ruling that HCA wasn't required to get a court order to resuscitate Sidney because no court can make the decision between life and impairment.

Former 14th Court justice Maurice Amidei, the dissenter in the opinion, said that, in his view, HCA's argument fell apart as soon as it mentioned the word "emergency."

"If it really was an emergency," he said, "it should have been tried as an emergency."

The rest of the majority's ruling doesn't hold up well, either, Amidei says. "We've never had a case like this before in Texas. But what it came down to was a 'live person,' and the question was, Do you or do you not have to have consent to treat a 'live person'? We don't need to be getting into an argument about whether it has any rights as a fetus."

The court of appeals claimed the "implications go well beyond the facts" and effectively punted the case to the Texas Supreme Court.

Michael Sydow, the Millers' trial lawyer, says the only implications in the case derive from the appellate court's "contortion" of the evidence used by jurors to reach their verdict.

"In our system, in Texas, once the jury makes a finding, that's the truth," Sydow says. "That's it. You can't keep coming back and arguing the facts."

Decades of scientific and ethical debate have yet to resolve the medical implications of the Miller case. In 1979, ethicists at the Hastings Center, a quality-of-life think tank, compared the neonatal intensive care unit to an "oppressive medical Vietnam, the costly, sometimes abusive, use of technology with little regard for the consequences."

Twenty years later, in a report called "Neonatal Viability: Pushing the Envelope," pediatric researchers at Loyola University concluded that the legitimacy of aggressive NICU practices rested on the distinction between the standard of care and experimentation.

That's a distinction the Texas Supreme Court will now have to make in Miller v. HCA. Whatever logic justices apply to the legal arguments, the ultimate wisdom of their decision will nonetheless have to be weighed against the medical evidence. What hope could medicine offer a child like Sidney Miller today? And is it a risk Texas parents should be forced to take?

Peer-reviewed research published throughout the last decade suggests that neonatologists reached as deep into the womb as they ever would around the time Sidney was born.

A study recently analyzed infants born between 20 and 25 weeks' gestation in 276 maternity wards in Great Britain. Overall, 61 percent died before discharge. Of the survivors, 64 percent showed signs of chronic lung disease, cerebral palsy and other disabilities. In the United States, much of the research in the last decade has focused on infants born between 23 and 25 weeks. In 1995, only four out of ten lived to be discharged from the NICU. Four out of ten survivors had moderate or serious disabilities, including brain damage.

Citing those figures, the American Academy of Pediatrics conducted a survey and found that neonatologists had a "high degree of burden and internal conflict" about the level of treatment to provide in such cases. Dr. Jean Steichen, a pediatric researcher at Cincinnati Children's Hospital, says practitioners still believe the best way to deal with the uncertainty of extreme prematurity is to leave it to the parents.

"Most neonatologists would agree it's the parents' prerogative" to resuscitate at 23 weeks, Steichen says. "And I think most ethicists agree it is the parents' prerogative. Because I don't have to take this baby home that I have now decided to save against the parents' will, as the baby… needs care for many, many years."

Apparently, however, the Texas medical establishment is the exception to this approach.In February, ten state and local medical societies, including the largest, the Texas Medical Association, asked the state supreme court to uphold the appellate ruling in favor of HCA.

The amicus, or "friend of the court," brief filed with the supreme court was prepared by Claude McQuarrie III, a Fulbright & Jaworski attorney and TMA lobbyist. Joining in were, among others, the Texas Pediatric Society, Texas Children's Hospital and Baylor College of Medicine. The brief argues that letting the Texas Family Code into the NICU "could force civil and criminal liability on healthcare providers."

The Miller case touches on issues that are "certainly important to physicians," says Rocky Wilcox, a staff attorney for the TMA. However, he acknowledges that the statewide group had taken no position until lawyers for HCA "asked us to get involved."

That request was made in a January 11 letter to the TMA from HCA's lead attorney, John Serpe. Wilcox declined to release the letter -- "I don't feel it's proper," he said -- and Serpe did not respond to a request for an interview.

Wilcox admitted that the TMA did not solicit the views of the Millers' attorneys before siding with HCA. Nor did the association consider the medical and ethical views of Texas doctors. "We don't poll our members," he said. "We never have."

To be sure, "tort reform" is of considerable interest to physicians, especially neonatologists. A survey by the MacLean Center for Clinical Medical Ethics in Chicago found that most NICU physicians expected to be sued if they practiced long enough. It's not surprising that those who had already been sued considered the claims against them to be baseless.

"In this context," the researchers concluded, "efforts to use malpractice claims to seek out evil-doers appear ill-conceived…Our data suggest that malpractice in the NICU appears to function more like a lottery than like a mechanism for either quality assurance or just retribution."

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