Marzen v. US Dept. of Health and Human Services

• Citation: 632 F. Supp. 785
• Decision Date: 04 April 1986
• Docket Number: No. 84 C 1225.,84 C 1225.
• Parties: Thomas J. MARZEN, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

632 F. Supp. 785

Thomas J. MARZEN, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

No. 84 C 1225.

United States District Court, N.D. Illinois, E.D.

April 4, 1986.

COPYRIGHT MATERIAL OMITTED

Clarke D. Forsythe, Chicago, Ill., for plaintiff.

Anton R. Valukas, U.S. Atty., James P. White, Asst. U.S. Atty., Chicago, Ill., Richard M. Friedman, Atty., Dept. of Health and Human Services, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Plaintiff Thomas J. Marzen, general counsel of the National League Center for the Medically Dependent and Disabled in Indianapolis, Indiana, brought this action under the Freedom of Information Act, 5 U.S.C. ? 552 ("FOIA"), seeking to compel the defendants to disclose certain records. The defendants consist of the United States Department of Health and Human Services ("HHS"), the Secretary of HHS, and two subordinate officials of HHS.¹ Specifically at issue are four records from an investigation by the Office for Civil Rights of HHS into possible discrimination against a handicapped individual involving the withholding of medical care from a newborn infant. The investigation involved the "Infant Doe" incident in Bloomington, Indiana, in which certain medical treatment was withheld from a Down's syndrome baby with a blocked esophagus who subsequently died. The government refused to release the records citing Exemptions 5, 6, 7(A), and 7(C) of FOIA, 5 U.S.C. ?? 552(b)(5), 552(b)(6), 552(b)(7)(A), and 552(b)(7)(C). In February, 1984, plaintiff filed his complaint for injunctive relief pursuant to 5 U.S.C. ?? 552(a)(3) and 552(a)(4)(B). The government then released some of the requested records, and, on May 12, 1984, filed a Vaughn index as required by Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), but continued to withhold four sets of documents under the exemptions cited above. Presently pending before this Court are the parties' cross-motions for summary judgment. In addition, the government seeks dismissal of defendants Sermier and Roberts on the basis that FOIA does not permit suits against subordinate agency officials. The parties agree that there is no material disputed issue of fact which cannot be resolved by the parties' various submissions. The motions are granted in part and denied in part for the reasons stated below.

FACTS

The baby identified in the documents as Infant Doe was born at 8:10 p.m. on Friday, April 9, 1982, in Bloomington Hospital, Bloomington, Indiana. At birth, the baby was diagnosed as having Down's syndrome and also a defective esophagus. Two doctors recommended surgery to correct the blocked esophagus, but the parents decided against surgery or any other treatment, except sedation as necessary. Everyone involved in the situation recognized that the baby would soon die if the surgery was not performed.

Infant Doe was delivered by Dr. Walter Owens, an obstetrician with privileges at Bloomington Hospital. Dr. Paul Wenzler, a general practitioner who had been the family physician for the parents, was the infant's initial attending physician. Both Dr. Owens and Dr. Wenzler tentatively diagnosed Down's syndrome, and Dr. Wenzler requested a consultation from Dr. James Schaffer, a pediatrician at Bloomington Hospital, who agreed with the Down's syndrome diagnosis and also believed that the infant had tracheoesophageal fistula, a developmental anomaly characterized by an abnormal connection between the trachea and the esophagus resulting in the inability of food and fluids to pass from the mouth to the stomach. Dr. Wenzler and Dr. Schaffer recommended that Infant Doe be transferred immediately to Riley Hospital at the University of Indiana Medical Center, the designated neonatal high risk center, where necessary surgery to correct the tracheoesophageal fistula could be performed. A fourth doctor, Dr. James Laughlin, also a pediatrician on staff at Bloomington Hospital, examined Infant Doe and agreed with the diagnosis already made. He expressly noted, however, "There is clinically no evidence of other congenital anomalies. Further work-up work will be necessary to confirm internal organ defects." He agreed with the recommendation of Dr. Wenzler and Dr. Schaffer that the infant be transferred immediately for surgery to correct the esophageal atresia.

The parents of Infant Doe rejected the recommendation for surgery. At 2:45 p.m. that same day, Saturday, April 10, 1982, the parents signed the following statement by which they approved Dr. Owens' proposed course of action "that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia." The infant's medical chart noted that the parents requested that four guidelines be followed in the care of Infant Doe:

"(1) Formula may be given if personnel wish, with full recognition that this will likely cause pneumonia and may speed child's demise.

(2) No IV's.

(3) No antibiotics.

(4) Sedation as necessary if infant appears to be in pain or distress."

The same day, at the instigation of the attorney for Bloomington Hospital, an emergency hearing was held before Judge John G. Baker of the Monroe County Circuit Court. During the hearing, Bloomington Hospital made no representation concerning the appropriate course of treatment which should be followed. Instead, the hospital's position was that it did not have the knowledge or authority to make diagnoses or to prescribe treatment. The hospital asked the Court to issue a declaratory judgment concerning the proper course of treatment for Infant Doe. Dr. Schaffer testified that the surgery on the esophagus was 90% likely to be successful. Dr. Owens testified that he and two other doctors concurred that the recommended course of treatment should be basic techniques "to aid in keeping the child comfortable and free of pain" because "the possibility of a minimally adequate quality of life was non-existent due to the child's severe and irreversible mental retardation." Dr. Laughlin disagreed because "he knew of at least three instances in his practice where a child suffering from Down's Syndrome had a reasonable quality of life," although he knew of no instance of children who had both Down's syndrome and tracheoesophageal fistula. The infant's father testified that he had been a public school teacher for over seven years and on occasion had worked closely with handicapped children and with children with Down's syndrome and that "he and his wife felt that minimally acceptable quality of life was never present for a child suffering from such a condition." He further testified that, after consulting with all four doctors, he and his wife had determined that it was in "the best interest of Infant Doe and the two children at home and their family entity as a whole, that the course of treatment prescribed by Dr. Owens should be followed."

At the conclusion of the hearing, Judge Baker held that the parents, "after having been fully informed of the opinions of two sets of physicians, have the right to choose a medically recommended course of treatment for their child in the present circumstances." In a subsequent letter, apparently to a citizen, Judge Baker elaborated on his rationale, stating:

In the "Infant Doe" case, it could not be said that the parents were not acting in the best interests of the child, even though other parents might have acted differently. It is a harsh view that no life is preferable to life, but the great weight of the medical testimony at the hearing I conducted was that even if the proposed surgery was successful, the possibility of a minimally adequate quality of life was non-existent.

In his written declaratory judgment dated April 12, 1982, Judge Baker also appointed the Monroe County Department of Public Welfare ("MCDPW") as guardian ad litem for Infant Doe to determine whether to appeal his judgment.

At 10:00 p.m. that same day, the six-member Child Protection Team of the MCDPW met at Bloomington Hospital to determine whether to appeal Judge Baker's decision. Those also present included the four Bloomington doctors mentioned above, the parents of another Down's syndrome child who testified as to the hardships of raising such a child, and an attorney for Infant Doe's parents, who suggested the presence of additional medical complications, including a heart condition. No minutes or records of this meeting were kept by the MCDPW. After deliberating for approximately one hour, and without reviewing Infant Doe's medical records, the members of the Child Protection Team decided not to appeal Judge Baker's decision, and they filed their report to that effect with Judge Baker on Tuesday, April 13, 1982.

Judge Baker nonetheless immediately appointed on April 13, 1982 Philip C. Hill, a Bloomington attorney, who also represented Dr. Laughlin, as guardian ad litem to prosecute an appropriate appeal from his ruling. Mr. Hill filed a petition for a temporary restraining order to provide treatment for Infant Doe, which Judge Baker denied at 10:50 p.m.

That same day, the county prosecutor sought an order from the Monroe County Circuit Court, Juvenile Court Docket that the MCDPW take immediate custody of Infant Doe and provide emergency treatment. This action was taken pursuant to Indiana Code 31-6-4-10, under which a county prosecutor or county department of public welfare may file a petition to declare a child to be "a child in need of services" (referred to as a "CHINS petition"). Under that statute, a "child in need of services" includes a child whose "physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal or neglect of his parent, guardian or...