February 18, 2005

In Texas, a baby has been in effect sentenced to die. He is hospitalized with a disease called thanatophoric dysplasia. A website devoted to genetic disorders says that "Infants with this condition are usually stillborn or die shortly after birth from respiratory failure; however, some children have survived into childhood with a lot of medical help." The child in question, Sun Hudson, is four months old and has obviously survived the danger of stillbirth and has not died shortly after birth. Sun's mother wants him to live. Doctors at the hospital where Sun was born no longer want to supply him with the "lot of medical help" he needs, and plan to shut off his oxygen supply.

Powerless against the wishes of her son's doctor, Sun's mother Wanda found an attorney and went to court to save her son's life. Without a single evidentiary hearing, Judge William C. McColloch has decided that the hospital has the right to take measures to end the baby's life, if the hospital happens to want to do so. Free Market News has interviewed the attorney for the child's mother, Mario Caballero, and reports the facts that have been excluded from every other news account of this story.

This is not about money. Sun Hudson is covered by Texas Medicaid (his mother is penniless) and the hospital is no danger of suffering financially by continuing to treat him. Under Texas law this would not be an issue in any event, as hospitals are prohibited from failing to treat a patient for lack of ability to pay or if there is an emergency condition.

This is not about a condition so rare or horrible that treatment would be inconceivable. Ironically, the website for Texas Children's Hospital, where Sun is a patient, includes this statement about dysplasia: "This genetics clinic provides diagnosis, treatment and follow-up care for patients from birth to adulthood with abnormalities of skeletal growth and strength. A staff of geneticists with consulting orthopedists, endocrinologists, neurologists and ophthalmologists evaluate patients during their visits for routine, chronic or acute care."

This is not about right-wing pro-life politics, either. Ms. Hudson's attorney is a self-described twenty-year legal aid attorney who only opened his solo practice with one staff member in the last year. Attorney Caballero went so far as to state that "I'm not part of the right to life movement; in fact, personally, I'm not quite in that political camp. But in this case it is about someone who is already alive."

This is about one judge who has by any objective standard allowed no due process to the child who may soon be killed or to the child's mother. Attorney Caballero subpoenaed hospital records of Medicaid payments for the child's treatment. The judge quashed the subpoena (meaning that he voided it) and refused to allow the mother to view those hospital records. Caballero subpoenaed the person in charge of records who could testify about the medical bills and payment. Judge McColloch quashed that subpoena. Instead, the judge ruled that the mother, in seeking to save her child's life from a deliberate cessation of medical treatment, had "no cause of action".

The judge made that ruling based only on the petitions filed, not allowing the mother's attorney to conduct any discovery under the normal rules of court procedure.

Before the court was involved, the hospital first gave the mother notice that they intended to evict the child from the hospital. Under Texas law, a hospital must give ten days notice of intent to make Sun leave the hospital despite his medical needs. In this case, they gave Ms. Hudson notice just before the weekend prior to Thanksgiving week.

By the time she found an attorney the next day, he was left with only three working days in which to get into court. During weeks of legal under a supposed agreement by the hospital that it would not remove the child from child support before a court hearing, the hospital changed its mind and informed Caballero that they intended to go ahead and remove child support. Only a temporary injunction temporarily delayed the hospital's action.

Finally before the probate court, the mother was not given the opportunity to call any witnesses or present any evidence in an evidentiary hearing. Instead, the judge ruled that the hospital may discontinue treatment of the child, based on facts not even alleged by the hospital, specifically that the judge believed the child was suffering "significant pain."

According to Caballero, when he asked how the judge had reached that finding of fact without ever having heard any testimony or conducting a hearing on the merits of the case, the judge replied, on the record, that he "probably got it from the newspaper."

Having visited the baby in the hospital, Caballero flatly denies that the child is in pain. After reflection, Caballero asked Judge McColloch to recuse himself from the case. McColloch refused.

This left the mother with only one issue to present to the court, whether or not any other hospital would be willing to admit the child as a patient.

It is not clear what the scope of that question is legally. Should the court consider whether another hospital within city limits has a bed for the child before removing child support, or whether there is another hospital reasonably available in the State of Texas or the rest of the country?

After the judge's ruling to allow the removal of the four-month-old's life support, Caballero raced to file an appeal. Currently, Judge McColloch's decision has been stayed pending appeal.