Parents' right to make medical decisions at stake in lawsuit

Mueller v. Auker

Parents' right to make medical decisions at stake in lawsuit

Corissa Mueller and her daughter Taige
CIR's case on behalf of Eric and Corissa Mueller is one of the most important civil liberties cases now pending and the only one concerned with child protection law.
In recent years, the body of law protecting the institution of marriage and family has yielded to efforts by the government to regulate and recreate these institutions. On the one hand, judges busy themselves re-writing the laws of marriage to accommodate a broad array of individual partnerings. Yet on the other hand state child protection laws routinely sanction the removal children from traditional families for even slight deviations from current fashions in education, child rearing, and medical treatment.
CIR’s effort to restore principle to this area of the law continues to focus on its representation of the Mueller family in their efforts to hold child protection officials and police officers accountable for the unconstitutional seizure of their infant child Taige. In August 2002, a few weeks after birth, she came down with a temperature. As a newborn child is especially vulnerable to infection, her mother, Corissa Mueller, was advised to take her to nearby St. Luke's Medical Center.
Corissa—who has a degree in chemical engineering—discussed Taige's treatment with the physician, including the risks and benefits of treating her for meningitis. Thinking Taige was suffering the aftereffects of the family's recent bout with the flu,


"THE RIGHT TO FAMILY ASSOCIATION INCLUDES THE RIGHT OF PARENTS TO MAKE IMPORTANT MEDICAL DECISIONS FOR THEIR CHILDREN, AND OF CHILDREN TO HAVE THOSE DECISIONS MADE BY THEIR PARENTS RATHER THAN BY THE STATE"

WALLIS v. SPENCER, 202 F.3d 1125 (9th Cir. 1999)


she asked to defer a spinal tap until other, less invasive (and less risky) treatments had been tried. The doctor agreed.
Unbeknownst to Corissa, though, the concerns she voiced about the risks of a spinal tap triggered a call to Child Protective Services (CPS), which then spiraled into the forcible seizure of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap. This happened despite the fact that, by then, Taige’s temperature had returned to normal.

Read what happened next....

The problem: no limits to child protective services
Though child protective services is supposed to protect chidren against neglect and abuse, it is not well situated to settle differences of opinion between a conscientious mother and an aggressive doctor. Corissa Mueller's "neglect" in this case consisted in nothing more than discussing Taige's treatment step by step and insisting on approving each procedure only when
needed.
A child protective services system that countenances the seizure of a child to preempt further discussion about the risks of an invasive medical procedure no longer serves the interests of the children it was designed to protect.
At the root of the problem is the fact that the Idaho child protection law—and the laws of many other states—immunizes doctors, police and CPS workers from negligently applying the requirements of the CPS law. As a result, city and state officials and even private doctors know there is no penalty for assume custody of a child, even over a parent's reasonable efforts to direct medical treatment.

Restoring limits and accountability to the system
In late August 2004, CIR filed suit in federal court in Boise, asserting that the Muellers possess a fundamental constitutional right to raise their children without unreasonable intrusion from state authorities.
CIR’s case hinges on the principle that the federal Constitution
provides a fundamental guarantee of parental rights—including the
right to make important medical decisions and the right to be informed of their children’s status and whereabouts.
On February 26, 2007, Judge B. Lynn Winmill agreed with CIR that the federal Constitution does not permit state officials to assume custody of a minor child over a difficult medical decision:
[A] difficult choice -- a choice that poses risks either way -- should never trigger intervention by the state. With no safe alternative, the state...loses all claim to make decisions for the child.
In addition, Winmill ruled that police officer Dale Rogers is liable in his personal capacity for failing to call Eric Mueller (who was at home with the couple's other two children) to inform him of the state's intention to assume custody fo Taige. Officer Rogers appealed his liability to the U.S. Court of Appeals for the Ninth Circuit, which heard argument on this question on September 15, 2008. You can read CIR's brief on this issue here.
Following the Ninth Circuit’s ruling, the

Von and Taige Mueller
case will be remanded to the district court for a trial to settle various factual disputes about what happened that night in the emergency room.
The Mueller case could spell out the federal constitutional limits on the authority of state officials to interfere with family decisions about medical, educational or other difficult issues. State officials no longer could presume a child to be in imminent danger solely to settle a disagreement over a complex decision.

Read the district court's opinions:
opinion (June 7, 2007)
opinion (February 26, 2007)
opinion (April 14, 2006)
opinion (April 13, 2005)

Read the amended complaint (October 13, 2004)

Read press releases:
CIR press release (October 30, 2006)
CIR press release (April 18, 2006)
CIR press release (August 10, 2005)
CIR press release (September 29, 2004)

Read Idaho Statesman article about the case



The Muellers: Noah, Corissa, Taige, Eric and Von
Corissa Mueller had no reason to
expect that discussing her daughter's treatment with emergency room staff would lead to her infant's forcible seizure of by state child welfare officials.
Corissa and her husband both have degrees in engineering. After college, they went to Texas, where they worked for Motorola. Until Taige was seized by CPS, Corissa worked as a chemical engineer, while Eric completed an advanced engineering degree.
A few years ago they moved to Boise, which boasts its own concentration of high tech companies. Eric works for a computer chip manufacturer and Corissa raises their three children, Von, Taige, and a brother Noah, born July, 2008. As someone with a scientific background, Corissa is trained to gather information and make an objective decisions. Especially when it comes to her children.

August 12, 2002
Which is why she took Taige to the hospital in the first place. Taige had a low grade fever (100.8) and wasn't eating well. Though Corissa thought Taige probably was suffering the aftereffects of the same flu that recently had run through her family, she knew that an infant's immune system is not fully developed and that it was important to have expert medical care in case Taige had something more serious.
When she arrived at St. Luke's that night in August 2002, a physician recommended a variety of treatments -- from giving Taige fluids and a full blood test to administering antibiotics and a spinal tap.
Corissa carefully considered the benefits and risks of each of them. She understood the risk of brain damage, paralysis, and death from a spinal tap. She weighed that risk against the odds that Taige actually had meningitis -- which the doctor said was less than five percent. She listened to the doctor's cautionary advice that it's better to do a spinal tap sooner rather than later, as an infant's temperature can increase rapidly.
Corissa decided to give Taige fluids and do a full blood test. If the temperature came down and the blood test didn't turn up any problems, she reasoned that the spinal tap might not be necessary. The doctor agreed to this plan. And, thankfully, Taige's temperature did come down. Not only that, the blood tests came back "normal." So Corissa started to think that her hunch had been right, that it was just the flu after all. And since it was 1:30 am, she asked a nurse about taking Taige home.

Child protective services shows up
Unbeknownst to Corissa, her earlier conversation about deferring the spinal tap had triggered a call to child protective services.


OFFICER SNYDER: WELL, CALM DOWN. OKAY? LET'S TAKE THIS ONE STEP AT A TIME.

MRS. MUELLER: WHAT HAVE THEY DONE TO MY BABY?

OFFICER SNYDER: THEY'RE GONNA DO THE TESTS THAT THE DOCTOR SAID THEY WERE GONNA DO....

MRS. MUELLER: HOW CAN YOU DO THAT? LET ME CALL MY HUSBAND!

OFFICER SNYDER: MY OTHER CHOICE IS TO PUT YOU IN HANDCUFFS. WOULD YOU RATHER ME DO THAT?


Two Boise police officers and a CPS worker arrived and took custody of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap.
And even though they had never discussed it with Corissa, they gave Taige steroids to forestall the brain swelling that can occur as a consequence of removing spinal fluid from such a tiny child.
While this was going on, the police officers physically restrained Corissa, told her she couldn't use the telephone and finally asked her to leave the hospital.
But Corissa refused. Because she knew that Taige was allergic to formula and that her baby would soon need her mother in order to nurse. Forty eight hours after the state seized Taige, a judge sensibly returned her to her parent's custody.

Oh...send her home.
Though child protective services probably conjures up child abuse, what we have here is a case about a difference of opinion

between a conscientious mother and a aggressive doctor. To put it another way, the mother's "crime" was discussing her infant's treatment step by step and insisting on approving each procedure only when needed.
Tape recordings made by the police officers of their conversations that night reveal that both they and the CPS worker knew that there was no legal basis to take Taige from her mother. One officer says:
"...legally we would be violating her rights to do that....she's not doing anything to harm her child."
But, incredibly, they agreed to seize Taige anyway. The CPS worker explained to the officers how this could be accomplished:
"Well if nothing else, they could declare her and she could go to shelter care for two days and in that time she would be treated. And then in shelter care the judge can say 'Oh send her home.'"
You can read the full transcript here (.pdf))

So in this case, CPS workers and city police manipulated the rules in order to end discussion between the doctor and Corissa.
The tapes make clear that the CPS worker and the police officers all knew that what they were about to do would violate Corissa's legal rights. But they just went ahead and did it anyway.

http://www.cir-usa.org/cases/mueller_v_idaho.html