Ivey, In Interest of

• Decision Date: 18 September 1975
• Docket Number: No. Z--362,Z--362
• Parties: In the Interest of IVEY, Infant (WF) Dob: 8--31--75, and Ivey, Infant (WF) Dob: 8--31--75.
• Court: Florida District Court of Appeals

Page 53

319 So.2d 53

In the Interest of IVEY, Infant (WF) Dob: 8--31--75, and Ivey, Infant (WF) Dob: 8--31--75.

No. Z--362.

District Court of Appeal of Florida, First District.

Sept. 18, 1975.

Joel M. Cohen, Pensacola, Guardian Ad Litem for the above named infants, appellants.

Henry Clay Mitchell, Jr., Pensacola, for the parents of the above named infants, appellees.

Charles S. Williams, Asst. State Atty., for the State of Florida.

Louis F. Ray, Jr., Pensacola, for Edward R. Westmark, M.D., amicus curiae.

Lawrence W. Oberhausen and Patrick Emmanuel, of Holsberry, Emmanuel, Sheppard, Mitchell, & Condon, Pensacola, for Sacred Heart Hospital, amicus curiae.

PER CURIAM.

This is an interlocutory appeal from an order of September 5, 1975, of the Circuit Court of Escambia County, Juvenile Division, brought by Joel M. Cohen, as guardian ad litem for the above infants, to review an order of the court below which ruled that the court did not have authority to order that blood transfusions be given to the two infants by a willing physician. Due to the extreme emergency involving the life or death of the two infants, we held an emergency hearing on the afternoon and evening of September 5, 1975. The attorney for the natural parents of the infants filed an affidavit stating that he, on behalf of the natural parents 'has no objection to the immediate appeal, hearing and disposition of this cause by Appellant Joel M. Cohen, as Guardian Ad Litem of said children, and I hereby expressly waive all compliance by the Appellant with the Florida Rules of Appellate Procedure and consent to the conduct of an emergency hearing on the afternoon of September 5, 1975.' Also, the attorney for the State of Florida filed an affidavit to the same effect.

We heard arguments by the guardian ad litem, by the attorney for the Sacred Heart Hospital appearing as amicus curiae and by the attorney for Dr. Edward Westmark, M.D., the infants' treating physician, as amicus curiae. Both amici curiae were represented by counsel in the proceedings below and Dr. Westmark testified as a witness. The attorneys for the parents of the infants and for the State of Florida did not attend the hearing (oral arguments) before us. Subsequently, on September 5, 1975, we entered an emergency order reversing the ruling of the trial court and ruling that under the circumstances shown by the record the court below had full authority to order Dr. Edward Westmark, M.D., (it appearing from the evidence that he was willing to act in compliance with the court's order) or any other physician under his direction and control, to administer such blood transfusions to the two infants as he may, in his medical judgment, deem necessary. We further stated that a full opinion would be subsequently issued. This is that opinion.

Following an evidentiary hearing on September 3, 1975, the court below entered an order in which it found that the children were born on August 31, 1975, in Bay County, Panama City, Florida; that they were born prematurely and for that reason required immediate medical care and were placed in the Sacred Heart Hospital in Escambia County, Pensacola, Florida, by their father, where they have remained since that time; that because of the physical condition of the children, the attending physicians recommended blood transfusions to increase their probability of survival; and that their hour-to-hour condition is subject to fluctuation. The trial court determined this to be a life or death situation with a very slim prospect of survival of the children and further found that because of their religious beliefs, the parents of the children had denied authority to the attending physician to administer blood transfusions recommended by the physicians as approved medical procedures in such instances. The court ordered that the children be placed in the temporary care, custody and control of the guardian ad litem and that he 'in his judgment and upon the recommendation of the attending physicians, shall be and he is hereby authorized to sign and otherwise execute any and all medical consents required by the attending physicians or any physician qualified by any hospital board to perform blood transfusions on infants.' The court further ordered that the attending physician or any licensed physician qualified by any hospital board to perform blood transfusion procedures on infants, willing to do so, was authorized to perform blood transfusion procedures as medically required with the consent of the guardian ad litem of the children. Thereafter, the guardian ad litem filed a motion to amend the foregoing order, contending that under Chapter 75--185(1), Laws of Florida, the court is authorized to Order that medical services be rendered. The guardian ad litem requested that the court Order the attending physician or any licensed physician to perform the transfusions. The court then entered its order from which this appeal is taken by which it construed Chapter 75--185(1), supra, as not authorizing the court to enter such an order and ruled that the court was not otherwise empowered to enter such an order.

It affirmatively appears from the record and from the oral arguments before this court that the infants' treating physician declined to administer the blood transfusions, which, in his opinion, were medically necessary, without an order of the court that he do so because of fear of a malpractice suit if he proceeded only on the basis of an authorization of the guardian ad litem. Thus, the question presented to this court on this appeal is whether or not the trial court was correct in its ruling that it did not have authority to order the transfusions. We find that the findings of the trial court were correct except for its finding and ruling that it did not have jurisdiction under Chapter 75--185(1), supra, Or otherwise to order the transfusions.

Dr. Westmark was fully qualified as an expert witness--a medical doctor specializing in pediatrics and subspecializing in neonatology or the care of the sick newborn. He testified that the infants (twins) were born prematurely and at birth the smallest weighed 703 grams and the larger weighed 951 grams. Translating this into pounds, he testified that each would weigh under two pounds; that both initially had respiratory stress and required oxygen therapy. Without going into the details of Dr. Westmark's testimony regarding their condition, it is clear from such testimony that they both were in critical condition at the time of the hearing before the trial judge and prior thereto. It had been medically necessary that blood be drawn from the infants for certain tests which are routine in premature births. Such blood withdrawals were made with the consent of the parents. The parents had no objection to the withdrawals, but because of their religious beliefs, they objected to transfusions or replacement of blood. The doctor testified as follows as to the need for blood transfusions:

'As you draw blood to monitor the various parameters in the blood, it depletes the blood supply and although infants are able to manufacture some blood, at this size and age, they are not able to manufacture enough to replenish that which we draw and it is customary practice in all infants of this size that when we have reached a certain amount of blood withdrawn, we need to replace that blood.'

The doctor further testified:

'A We are able from graphs on studies from large numbers of infants of lowbirth weight to come up with a predicted mortality figure, and what we do is take these infants' weight and gestational age and plot them on this graph and it shows us and tells us what their predicted mortality is. Now, if, in the course of caring for these infants you continue to withdraw blood and you are unable to replenish it, then there is going to be a point when you have withdrawn enough blood that the lack of blood is going to be injurious to the infant.

Q So injurious as to cause death?

A It certainly could reach that proportion.

Q And prior to any injury causing death, it would cause brain damage or damage of other vital organs?

A Well, yes, it would cause damage to other vital organs, probably sooner than it would cause brain damage by depleting the red blood cells which carry oxygen to all of the organs, then the infant would get in trouble with the oxygen supply to the heart, lungs, etcetera.'

The doctor testified that 'for the smaller of the twins, the predicted mortality or the percentage likelihood of death would be ninety-two per-cent and for the larger of the two, it would be eighty-two per-cent' if blood transfusions were not administered. He testified that from a medical point of view the infants are in need of transfusions; that transfusions would, in his opinion, increase their chances of survival. Upon inquiry from the court as to how much time it had before a decision must be made, Dr. Westmark testified:

'This is dependent upon several factors and I am sorry that I can't give you an exact time. For example, if one of the infants develop a hemorrhage, which is common in these low birth-weight babies, the necessity for transfusion would be immediate. If we continue to draw blood for laboratory studies and try to reduce those to the least we can get by with, it may take several days, if nothing intervened that made the babies acutely worse.'

The court then asked, 'Would you characterize this as being a life...