729 F.2d 144 (2nd Cir. 1984), 679, United States v. University Hosp., State University of New York at Stony Brook

Docket Nº:679, Docket 83-6343.
Citation:729 F.2d 144
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. UNIVERSITY HOSPITAL, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, Defendant-Appellee, Parents of Baby Jane Doe, Intervenors-Defendants-Appellees.
Case Date:February 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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729 F.2d 144 (2nd Cir. 1984)

UNITED STATES of America, Plaintiff-Appellant,



BROOK, Defendant-Appellee,

Parents of Baby Jane Doe, Intervenors-Defendants-Appellees.

No. 679, Docket 83-6343.

United States Court of Appeals, Second Circuit

February 23, 1984

Argued Dec. 2, 1983.

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Charles J. Cooper, Deputy Asst. Atty. Gen., Washington, D.C. (Wm. Bradford Reynolds, Asst. Atty. Gen., Edith S. Marshall, Daniel P. Butler, Attys., Dept. of Justice, Washington, D.C., Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for plaintiff-appellant.

Stanley A. Camhi, Asst. Atty. Gen., of the State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Dennis H. Allee, First Asst. Atty. Gen., Albany, N.Y., Melvyn R. Leventhal, Richard Rifkin, Deputy First Asst. Attys. Gen., Paul M. Glickman, Frederick K. Mehlman, Donna N. Miller, Martha O. Shoemaker, Asst. Attys. Gen., New York City, Sanford H. Levine, University Counsel and Vice Chancellor for Legal Affairs, Carolyn J. Pasley, Lewis E. Rosenthal, Staff University Counsel, Albany, N.Y., of counsel), for defendant-appellee.

James T. Reynolds, Hauppauge, N.Y. (Reynolds, Caronia & Gianelli, Hauppauge, N.Y., Charles M. Newell, Riverhead, N.Y., of counsel), for intervenor-defendant-appellee.

Steven R. Shapiro, Robert M. Levy, Arthur N. Eisenberg, New York City, for New York Civil Liberties Union as amicus curiae.

Richard L. Epstein, Chicago, Ill., Robert W. McCann, Linda A. Tomaselli, Chicago, Ill., Mark D. Morris, Albany, N.Y., Richard A. Noffke, Chicago, Ill. (William G. Kopit, Stuart M. Gerson, Robert P. Borsody, David H. Larry, Epstein Becker Borsody & Green, P.C., New York City, of counsel), for American Hosp. Ass'n, Hosp. Ass'n of New York State and American Medical Ass'n as amici curiae.

Stephan E. Lawton, Elizabeth B. Carder, Kevin R. Barry, Anne W. Weisman, Pierson, Ball & Dowd, Washington, D.C., for American Academy of Pediatrics as amicus curiae.

Timothy M. Cook, Western Law Center for the Handicapped, Los Angeles, Cal., Martin H. Gerry, Pickard & Gerry, Washington, D.C., Frank J. Laski, Thomas K. Gilhool, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for The American Coalition of Citizens With Disabilities, the Ass'n for Retarded Citizens, The Ass'n For The Severely Handicapped, Disabled In

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Action of Metropolitan New York, and The Disabled Rights Union as amici curiae.

Before WINTER and PRATT, Circuit Judges, and METZNER, District Judge [*].

GEORGE C. PRATT, Circuit Judge:

This expedited appeal presents the question whether Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 794 (Supp. V 1981), and one of its implementing regulations, 45 C.F.R. Sec. 84.61 (1982) (incorporating 45 C.F.R. Sec. 80.6(c) (1982)), authorize the United States Department of Health and Human Services (HHS) to obtain access to medical records maintained by defendant University Hospital concerning a seriously deformed newborn infant, identified only as Baby Jane Doe, whose parents have refused to consent to certain surgical procedures necessary to prolong the infant's life. The United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge ), 575 F.Supp. 607, ruled that HHS was not entitled to the records and entered summary judgment in favor of University Hospital. For the reasons set forth below, we affirm.


Baby Jane Doe was born on October 11, 1983 at St. Charles Hospital in Port Jefferson, New York. She was suffering from multiple birth defects, the most serious of which were myelomeningocele, commonly known as spina bifida, a condition in which the spinal cord and membranes that envelop it are exposed; microcephaly, an abnormally small head; and hydrocephalus, a condition characterized by an accumulation of fluid in the cranial vault. In addition, she exhibited a "weak face", which prevents the infant from closing her eyes or making a full suck with her tongue; a malformed brain stem; upper extremity spasticity; and a thumb entirely within her fist.

As a result of the spina bifida, the baby's rectal, bladder, leg, and sensory functions were impaired. Due to the combination of microcephaly and hydrocephalus, there was an extremely high risk that the child would be so severely retarded that she could never interact with her environment or with other people.

At the direction of the first pediatric neurosurgeon to examine her, the baby was immediately transferred to University Hospital for dual surgery to correct her spina bifida and hydrocephalus. Essentially, this would entail excising a sac of fluid and nerve endings on the spine and closing the opening, and implanting a shunt to relieve pressure caused by fluid build-up in the cranial cavity. The record indicates that these dual, corrective surgical procedures were likely to prolong the infant's life, but would not improve many of her handicapping conditions, including her anticipated mental retardation.

After consulting with several physicians, nurses, religious advisors, a social worker, and members of their family, the parents of the baby decided to forego the corrective surgery. Instead, they opted for a "conservative" medical treatment consisting of good nutrition, the administration of antibiotics, and the dressing of the baby's exposed spinal sac.

Litigation surrounding Baby Jane Doe began on October 16, when A. Lawrence Washburn, Jr., a Vermont attorney unrelated to the child and her family, commenced a proceeding in New York State Supreme Court seeking appointment of a guardian ad litem for the child and an order directing University Hospital to perform the corrective surgery. The court appointed William E. Weber as guardian ad litem and held an evidentiary hearing on October 19 and 20 to determine whether Baby Jane Doe was "in need of immediate surgical procedures to preserve her life". Following the hearing, at which University Hospital and the parents of the child were represented,

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the court concluded that surgery was necessary and ordered that it be performed.

One day later the Appellate Division of the New York Supreme Court reversed the decision of the trial court and dismissed the proceeding. The Appellate Division found that the "concededly concerned and loving parents have made an informed, intelligent, and reasonable determination based upon and supported by responsible medical authority." As the court elaborated:

The record confirms that the failure to perform the surgery will not place the infant in imminent danger of death, although surgery might significantly reduce the risk of infection. On the other hand, successful results could also be achieved with antibiotic therapy. Further, while the mortality rate is higher where conservative medical treatment is used, in this particular case the surgical procedures also involved a great risk of depriving the infant of what little function remains in her legs, and would also result in recurring urinary tract and possibly kidney infections, skin infections and edemas of the limbs.

Thus, the Appellate Division determined that the parents' decision was in the best interest of the infant and that there was, therefore, no basis for judicial intervention.

On October 28, the New York Court of Appeals affirmed the decision of the Appellate Division, relying on different grounds. Since the petitioner had no direct interest in or relationship to any party and had failed to contact the State Department of Social Services, which has primary responsibility under New York law for initiating child neglect proceedings, and since the trial court also had failed to seek that department's investigative assistance, the Court of Appeals found "no precedent or authority" for the proceeding. Accordingly, the Court of Appeals ruled that the trial court had abused its discretion by permitting the proceeding to go forward.

While the state court proceedings were still in progress, the federal government entered the picture. On October 19, HHS received a complaint from an unidentified "private citizen" that Baby Jane Doe was being discriminatorily denied medically indicated treatment on the basis of her handicaps. HHS referred the complaint to the New York State Child Protection Services, the state agency specifically responsible for investigating suspected incidents of child abuse, mistreatment, and neglect. On November 7, that agency concluded that there was no cause for state intervention.

Meanwhile, HHS obtained a copy of the record of the state court proceedings, which contained the child's medical records through October 19. The record was forwarded to and personally reviewed by the Surgeon General of the United States, who determined, among other things, that:

An appropriate determination concerning whether the current care of Infant Jane Doe is within the bounds of legitimate medical judgment, rather than based solely on a handicapping condition which is not a medical contraindication to surgical treatment, cannot be made without immediate access to, and careful review of, current medical records and other sources of information within the possession or control of the hospital.

Beginning on October 22, HHS repeatedly requested University Hospital to make available for inspection all of Baby Jane Doe's medical records since October 19. HHS based its authority to conduct an investigation on section 504 of the Rehabilitation Act, which provides in pertinent part that "[n]o otherwise qualified handicapped individual * * * shall, solely by reason of his handicap, * * * be subjected to discrimination under any program or activity receiving Federal financial assistance * * * ". HHS further relied on 45 C.F.R. Sec. 80.6(c), as incorporated by 45 C.F.R. Sec. 84.61, which states:

(c) Access to sources of information. Each...

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