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For years, neonatal and pediatric research-ers have tried to develop clinical guidelines for the NICU, including when and how to resuscitate extremely premature newborns. But the effort has invariably run aground on the possible legal and ethical consequences. For example, a doctor might feel compelled to depart from the guidelines if they don't meet established medical procedures for a patient. But if they should end up in court, the patient's lawyer would undoubtedly argue that such guidelines are the standard of care and the doctor should have followed them.

In a March 2000 health care symposium in Arizona, HCA vice president Jim Hinton warned that information databases on malpractice claims could threaten the "immunity" of established clinical practices. Barry Furrow, director of Widener University's Health Law Institute, says that argument ignores the established practice of giving patients -- especially the parents of minor patients -- enough information to make an informed decision.

"For the last couple decades, we've been moving into an era of health care defined as 'consumer empowerment,' " Furrow says. "Patients are no longer passive. They are actively encouraged to collaborate with their doctors, and the obligation of the doctor is much greater to give patients a say in their own treatment."

The megagiant HCA was formed by the merger of Columbia Healthcare -- a corporation co-founded by Texas billionaire Richard Rainwater -- and the Tennessee-based Healthcare Corporation of America. The company owns more than 200 hospitals and surgical centers across the country -- more than 50 of them in Texas and about a dozen in the Houston area.

While it has been lauded for its economy-of-scale "cost strategies," the company also has been criticized for business practices that, in the view of many, compromise patient care. Among its most controversial innovations was to entice doctors to invest in the company. While this encourages practitioners to keep referrals within HCA's network, it also may encourage physicians to be overly concerned with the value of their investment.

In December 2000, the corporation agreed to pay $900 million to settle various claims, including that it had billed governments for care and padded the bills of adolescent psychiatric patients. Two executives were eventually sentenced to prison terms, although an appeals court recently overturned those convictions.

Those actions were unrelated to the Miller case, although the company's push for profits is worth considering before the aggressive resuscitation of all newborns might become the law in Texas.

Neonatology is among the most expensive field for medical treatments. Research suggests that the cost averages about $250,000 per infant for babies born before 26 weeks who survive in neonatal intensive care units for more than four months.

According to a study by the Medical College of Wisconsin, the since-repealed mandate requiring earlier discharges after delivery led many hospitals and physicians to transfer more newborns to the NICU, "thereby allowing for longer hospital stays to be reimbursed by insurance carriers." The study noted that while premature infants make up less than 7 percent of all births, they accounted for half of all hospital delivery charges.

The high cost of neonatal care has also cut the other way. In 1997, an analysis of 57,000 premature births in Philadelphia found that uninsured infants and those with Medicaid coverage were nearly twice as likely as insured infants to be transferred to other hospitals, in a practice known as patient dumping.

Jurors in the Miller trial did not consider whether the unauthorized treatment was financially motivated. But Mark Miller believes his daughter wouldn't have been resuscitated if he and his wife had been indigent.

"Karla was preregistered at the hospital," he recalls. "We had already filled out all the insurance forms on her policy. All she had to do was show up. Sometime between seven and eight that morning, when they found out everything had turned to shit, they told me they needed my insurance."

The Millers estimate that the cost of Sidney's care at The Woman's Hospital was $200,000. When she needed brain surgery that Woman's was unable to perform, Sidney was moved to Texas Children's Hospital. By the time she went home in December 1990, Mark Miller's $1 million policy had been exhausted.

Though Miller says the family has "spent a bunch" out of pocket since, he and Karla consider themselves relatively lucky. Sidney has undergone one major brain operation, but she hasn't been back to the hospital in four years. Still, doctors expect Sidney to live as long as anyone else, and a medical emergency is always a possibility for a child with her disabilities.

That's one reason why the appellate decision angers Sydow, the Millers' lawyer. If it's upheld by the Texas Supreme Court, Sydow predicts a "totalitarian system" of health care in Texas, whereby treatment decisions are made by for-profit providers like HCA.

"What HCA is asking the supreme court is to allow them to do the same thing they did to the Millers without the bother of being sued," Sydow says. "But who decides what treatment is 'life-sustaining'? If it's doctors and hospitals, what stops them from withholding any treatment until they see clear to call it 'life-sustaining'?"

To illustrate his point, Sydow posed the hypothetical case of a child exposed to a deadly virus. The child has only a 20 percent chance of contracting the virus, which is fatal 80 percent of the time. The available 'life-sustaining treatment,' a vaccine still in clinical trials, has been linked to brain damage. "Whose duty is it to decide which risk is worth taking?"

When the Millers arrived at The Woman's Hospital, one alternative available to them was an abortion. At the first sign of chorioamnionitis, an infection of the amniotic membrane, the potential danger to Karla would have justified aborting the fetus. If she had awoken in pain and bleeding in her third trimester and her fetus had subsequently been diagnosed with severe and irreversible abnormalities, Karla could have had an abortion.

That became less of an option, however, the longer Karla remained on the labor-inhibiting experimental drug terbutaline, which can trigger strokes. Jacobs, her obstetrician, wanted to keep Karla on the terbutaline as long as he could, but if she had the baby soon, the hospital would need to know what to do.

Donald Kelley met with the couple and recorded their decision on Karla's chart: "Parents request no heroic measures at this time." Jacobs informed the NICU staff at The Woman's Hospital that there would be no need for a neonatologist if Karla gave birth. He also suggested that, while his wife rested, Mark make arrangements for a potential funeral.

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