Last April, 23 year-old Rudy Linares disconnected his 15-month-old comatose son, Sammy, from the mechanical ventilator that was maintaining the infant's life. He then used a gun to keep hospital staff from interfering while he withdrew the machine, allowing his son to die of acute respiratory failure. The death of this infant stirred great controversy among doctors, nurses, lawyers and ethicists. It also generated much discussion in the news media. The clearest common denominator of this discussion has been the willingness of commentators to advance opinions and interpretations without knowledge of the facts of the case. Some of the opinions have been critical of the hospital, the doctors, and/or the nurses. The present report is not intended to answer such criticism. The report will simply provide the facts and legal opinions as to the case. To the extent this information leads the reader to understand or agree with the management of the case the report will serve as a defense of these actions. To the extent it leads to rejection or criticism of the management, the report will support the detractors.

On August 2, 1988, 6-month-old Samuel Linares aspirated a balloon at a birthday party and was unconscious and blue when his father, Rudolfo, found him. Nine months later, his father used a gun to keep medical staff at bay while he disconnected the respirator keeping his comatose son alive. Mr. Linares ignited much soul-searching among pediatricians, lawyers, and ethicists about treatment decisions for profoundly damaged children.

Public discussion of the ethics of forgoing life support in pediatric care moves like a pendulum betweeen fear of inappropriately allowing children to die and fear of unrestrained life-supporting technology. In the early 1970s, physicians’ and theologians challenged accepted tenets of law and ethics by proposing that pediatricians should allow critically ill or severely disabled babies to die without the most aggressive use of technology. By 1982, Baby Doe caught the nation's moral imagination and raised the possibility that withholding or withdrawing life-sustaining procedures amounted to sanctioned infanticide. This concern led to restrictions on the right of parents and doctors to decide to discontinue treatment. Public sympathy for Mr. Linares suggests that the pendulum may be swinging back toward a less restrictive public policy about forgoing life-sustaining treatment in children.

Legal advice lies close to the death of Samuel Linares, closer than it usually does to the deaths of the many who die every day in American hospitals. Samuel's parents wanted the attending physician to disconnect the ventilator of their permanently unconscious son and allow him to die, something they saw as right for their son and their family. But this never happened. Samuel was not allowed to meet the death he had so narrowly avoided in August of 1988 when he accidentally swallowed a balloon and choked. He did not die uneventfully after his parents and the clinicians caring for him had carefully deliberated about the personal, ethical and professional propriety of stopping the ventilator and made a responsible decision about his fate.

Instead, Rudy Linares had to ward off nurses and security guards with a handgun until he disconnected his son's ventilator and held him in his arms until he died. According to the attending physician, Dr. Goldman, “There was no ethical difference of opinion here. The physicians agreed that the child was in an irreversible coma and would not recover. There was no medical opposition to removing the ventilator. What we faced was a legal obstacle.” (Emphasis added.)

For any hospital attorney, but especially for in-house legal counsel, the thought of a dissatisfied patient or other person turning to physical force or violence to achieve a particular outcome is the stuff of which nightmares are made. Apart from the human consequences of such situations, their occurrence means that counsel has failed to prevent problems. Problem prevention is one of the most important roles of any attorney and is the role which many in-house counsel view as their most important.

Resort to force within a health care setting is especially troubling, yet the potential for such outcomes exists in a variety of situations about which counsel are likely to be consulted. These include employee terminations, medical student or resident terminations from training programs, and, in the patient care context, situations where patient or family wishes are not mer. Just such an outcome occurred at Rush-Presbyterian-St. Luke Hospital, in Chicago, Illinois, (hereafter “Rush”) when Mr. Rudolfo Linares held hospital staff at gunpoint while he disconnected his infant son's respirator so that the child would die.

Let us start with a conclusion that seems not to be in dispute: that in April of 1989 Samuel Linares had little or no interest in living. He had been competently diagnosed as being in a persistent vegetative state, by then eight months long. The cause was clearly prolonged asphyxiation, so that whatever uncertainty exists in cases of unknown etiology was not a factor. It could also be claimed that he had little interest in dying, in that he was probably incapable of suffering from prolonged treatment. But few advocate prolonged intensive care for preservation of mere vegetative functions. Nor is there serious argument that patients or surrogates who request discontinuation of treatment in such circumstances, when it serves no interest of the patient, are acting immorally. Even the vitalist federal Baby Doe regulations concede that life-sustaining treatment may be discontinued when the patient is permanently comatose.

When the Linares case broke in Chicago, the media immediately began contacting ethicists and hospital lawyers in the area. Eventually, and somewhat wistfully as one paper reported, they were unable to find a single ethicist who did not think that the decision should have been made to withdraw treatment from Samuel far earlier in his treatment. Furthermore, ethicists argued that the family and physician should have made that decision. There was no need to consult with lawyers and especially not with courts.

On the other hand, most lawyers contacted felt it was necessary to go to court to obtain permission to withdraw the respirator, since the legal status of such decisions in Illinois (as in most other states) was terribly unclear. Lack of “clarity” was a catchword in these interviews.

This dichotomy between the instinctive reactions of ethicists and lawyers is natural. It should be so. The ethicists consulted, philosophers, theologians, and physicians, are all skilled in clinical ethics.

The Linares case is one of the memorable moral dramas played out in a pediatric intensive care unit and in the press in a decade of momentous moral cases concerning the care of children. It was a vivid tragedy that posed intense conflict. Its characters were sharply drawn, and it culminated in a final, dramatic scene.

High drama tends toward heroes who are admired for their courage and distinguished performance, and villains who are embodiments of evil reviled for their wickedness. To make it simple for the audience, the good often wear white and the bad wear black. Not so in this story. Two nurses who took care of Samuel Linares, Karen Stratton and Laura Stark, wrote, ‘‘The media sensationalized Rudy Linares as a hero while Rush PICU staff members were portrayed as the villains. Who is right?”’

Nurses played a central role in the Linares case. Accounts of the drama in newspapers, television stories, and articles across the country contained opening paragraphs giving the basic facts: Rudy Linares, a 23-year-old laborer, held nurses at gunpoint just after midnight on April 26, 1989, while he disconnected his 16-month-old unconscious son, Samuel, from a respirator at Rush Presbyterian St. Luke's Hospital in Chicago and held him in his arms until he died.

For decades, medicine has been dominated by a “spare-no-expense’’ philosophy that fostered an ethic of providing all care that is of any conceivable benefit, regardless of the cost. This extended financial honeymoon has now ended. Sweeping reimbursement reform is limiting payment for health care under both public programs and private insurance. As physicians respond to this emerging cost consciousness in health care by declining to perform procedures once considered necessary, will they be exposed to liability or will legal standards shift to accommodate the new constraints? This dilemma is one of the most important issues that will confront health care tort law throughout the remainder of the century.

The potential conflict between malpractice law and cost containment has received considerable scholarly attention over the past dozen years, particularly following the 1983 reform of the Medicare program and the 1986 California appellate decision in Wickline v. State of California concerning that state's Medicaid program.

Professor Hall is to be congratulated on his thoughtful analysis of an issue that, as he rightly suggests, “is one of the most important issues that will confront health care tort law throughout the remainder of the century.”’ He argues that malpractice law currently can accommodate considerable latitude both for a conservative streamlining of medical practices in general and for a cost-sensitivity in individual treatment decisions. And he further argues that existing tort principles, such as the locality rule, can comfortably be stretched to embrace still greater room for economics in the medical standard of care. I quite agree.

Unfortunately, Hall's arguments do not go nearly far enough, for they are framed around a seriously oversimplified picture of the economic changes that are revolutionizing medicine in the United States. He envisions a fairly uniform, global set of resource constraints that generally pressure physicians to conserve on care—pressures that tort law can then encompass equally globally as it accepts more cost-efficient standards of care. However, neither the changing economics of medicine nor the resulting jurisprudential challenges are anywhere near this generalized.

On July 3,1989, the Supreme Court finally handed down its much-anticipated decision in Webster v. Reproductive Health Services. Observers interested in the issue of abortion rights had anxiously awaited the decision for indications of whether the court would maintain the constitutional course it had charted in Roe v. Wade. At stake was the extent to which the Court would continue to find limits in the Fourteenth Amendment upon the power of states to proscribe and regulate abortions. The majority which had supported Roe and other abortion cases3 had been whittled away. Two dissenters from the original 1973 decision (Chief Justice Rehnquist and Justice White) and one subsequent appointee (Justice O’Connor) had consistently shown antipathy to Roe. The author of the Court's opinion in Roe (Justice Blackmun), two other participants in the original decision (Justice Brennan and Marshall), and a subsequent appointee (Justice Stevens) had been consistent defenders of Roe and were still on the Court. But with the retirement of Chief Justice Burger and Justice Powell, two new, reputedly “conservative” Justices (Scalia and Kennedy) had been appointed to the Court. Webster would be their first opportunity to show where they stood on Roe.

One thing is certain about the Supreme Court's decision in Webster v. Reproductive Health Services: It will stimulate state legislatures to enact more legislation regulating abortion. Justice Blackmun candidly described the main opinion, written by Chief Justice Rehnquist (part majority, part plurality), as an “implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception.” For many pro-choice advocates, this is an ominous development; for some, it is extremely frightening. For most pro-life advocates, however, this is a hopeful result; some enthusiastically perceive the prospect to reenact the 19th century abortion prohibition. But the most passionate activists on both sides are mistaken; both those who are frightened about “dark ages” abortion prohibitions and those who are gloating about turning back the clock misunderstand the significance and holding of Webster. Webster is a victory for moderation; it signifies the revival of a long-term process of political give-and-take, public education and debate, and legislative compromise.

In the Brief for the United States as Amicus Curiae supporting the Attorney General of Missouri in the Webster case, the Department of Justice invoked a favorable image of European legislative responses to the practice of abortion in order to argue the appropriateness of locating legislative control at the state level, as opposed to the level of federal law. It was further claimed that it was necessary for the Court to set aside its 1973 decision in Roe v. Wade in order for legislation in the U.S. to be consistent with the laws of other countries with which the U.S. “shares a common cultural tradition.”

The foundation on which these arguments were based is fundamentally flawed. The Department's brief omitted reference to the setting of Western European national legislation within the framework of international law , and in particular of the European Convention on Human Rights and Fundamental Freedoms.

Opinions differ about whether the legality of induced abortion is the most divisive social issue of the present time, but all agree that it is a strong contender for that status. The argument about which form of legislation would lower or raise the incidence of abortion has an empirical dimension, but many of the opposing arguments concern values and ideologies. The value of human life and the respect to which it is entitled, represented in the sympathetic form of the human fetus, are pitted against the value of women's self-determination and well-being, and the respect and status that women enjoy as decision-makers over their bodies and destinies.

The very language in which different persuasions are expressed often resonates with values. The pro-life/pro-abortion distinction incorrectly suggests that those who favor women's choice prefer that it be made in favor of abortion, whereas the pro-choice/anti-choice distinction incorrectly suggests that opposition to abortion rests on hostility to self-determination rather than on the assertion of more positive values, notably the sanctity of human life at all stages of development. The practice adopted below will be to give protagonists of different views the descriptions they give themselves, namely pro-choice and pro-life, although the author will not attempt to conceal a personal pro-choice preference.