It Can Happen Here

by John R. Woodward

This article is taken from "The Disability Rag and ReSource"
vol 15 no. 1 (Jan/Feb) 1994. Avocado Press: louisville, KY.

http://www.bioethicsanddisability.org/itcan.html

American doctors once conducted an experiment that proved you can kill the disabled babies of poor families and get away with it. Their research was funded by the Federal Government. Twenty-four babies with spina bifida lost their lives. The experiment was declared a success. Yes, it can happen here.

Between 1977 and 1982, four doctors and a social worker at the Children's Hospital of Oklahoma, in Oklahoma City, monitored the births of babies with myelomeningocele (the medical term for spina bifida). Parents who were poor were told that it would not be appropriate to treat their baby and given an extremely pessimistic picture of their child's future life. Parents from better-off families were told more about the treatments for spina bifida and given more optimistic - and more accurate - information about their child's potential.

None of the parents knew they were part of an experiment. Parents who were assigned to the "pessimistic outcome" group chose, by a factor of nearly five to one, not to have their babies treated. The experiment was not conducted to prove that babies with spina bifida will die if they are not treated. Doctors already knew that. The goal of the experiment was to prove that the families would accept a "do-not-treat" recommendation from their doctors.

It was no coincidence that the babies who died were the children of poor parents. To select the families for the "pessimistic outcome group," the doctors conducting the study developed a "formula" which they published as part of their write-up in "Pediatrics", the most famous and influential medical journal devoted to the care of children. This is their "formula": Quality of Life = Natural Endowment by the contribution of the Home plus the contribution of Society. In a more mathematical style it reads: QL = NE * (H + S). The doctors measured the "H" - the contribution of the home - primarily in financial terms: family income, family debt, employment and employability of the parents, etc. The parents' "intellectual resources," defined in terms of their educational level, were also included in the calculation of "H," which had the effect of crowding the pessimistic outcome group with parents less likely to challenge the doctors' "facts". Since "Natural Endowment" is multiplied by the other factors, rather than added to them, babies with a greater level of impairment (and hence less "natural endowment") were more likely to be placed in the "pessimistic outcome" group.

The "formula" used non-medical factors to decide which babies ought to receive treatment, which should be a medical decision. The use of a mathematical procedure to create the appearance of an empirical foundation for the decision not to treat is not science. It's "scientism," the dressing up of a moral prejudice in the language and trappings of science, so as to lend a false credibility to a value judgment that would otherwise be more readily exposed as a mere prejudice. In this case, the doctors arbitrarily assumed that poor families offered a quality of life so much lower than that of middle-class and wealthy families that babies born into them were better off dead.

Frieda Smith, who gave birth to Stonewall Jackson Smith in 1979, remembers being confronted by a doctor just days after a difficult birth, before she had time to come to terms with her baby's birth impairment.

"He (the doctor) told me that I would always have to take care of him, that he would be blind, that he would never know me, that he was more like some kind of animal than a human being," she says. "He never really sat down with me and explained what the operation would do for Stoney." Ms. Smith was never told that the failure rate for spina bifida treatments is very low, nor did she understand that the operation would reduce the degree of sensory, mobility and intellectual impairment that her son experienced. "He made it sound like Stoney would live longer, but he wouldn't ever get any better."

Ms. Smith signed a consent form agreeing that Stonewall would be fed and given minimal "supportive care," but no antibiotics or surgery. Later, when she had questions about her baby's treatment, the doctor refused to make himself available to answer them. Ms. Smith also says that she did not know that she could have taken her son to another hospital, where he would have been treated at once.

During the five years of the study, 69 babies with spina bifida were born in the Children's Hospital of Oklahoma (now known as Oklahoma Children's Hospital), a teaching hospital affiliated with the University of Oklahoma. Thirty-three babies were recommended for "supportive care" without treatment; eight of them were eventually treated anyway, either because their parents insisted or because their parents or guardians eventually obtained more accurate information. All of the 24 babies whose parents consented to the "supportive care" regimen died. ( a twenty-fifth baby in the "supportive care" regimen was moved out of state by his parents and lost to the study. Two of the eight babies that were eventually treated also died, possibly because the treatments came too late.) Most of the babies who were deprived of treatment were born to women in the welfare system, who were paying for their care with Medicaid benefits. None of the 36 babies that were given antibiotics and surgery died from the effects of spina bifida. (One did in an accident.)

In addition to being poor, many of the families of the children that were chosen to die were poorly educated. Frieda Smith felt that she was manipulated by a doctor who took advantage of her medical ignorance. Her experiences, and the experiences of other mothers whose babies died, raised serious questions about whether they truly gave "informed consent" when they signed the forms agreeing to the "supportive care" regimen. Indeed, some parents came away from their meeting with the doctor under the false impression that the hospital was not required to treat babies who did not meet the "criteria for treatment" (i.e., the formula).

Ms. Smith and her husband John, who are European-Americans, joined two other parents in a lawsuit against the hospital, the Oklahoma Department of Social Services, administrators in both institutions and the doctors and social workers who conducted the study. Cheparney Camp, a Native American, sued over the death of his daughter Melissa, and Sharon Jackson, who is African-American, sued on behalf of her son Carlton. Carlton, in the words of attorney Jane Brockman, "beat the odds." He survived for months in a children's center, where the nurses and attendants cared for him. Eventually, Ms. Johnson insisted that he be treated. However, the months-long delay caused him to develop more severe impairments than he would have sustained if he had been treated within 48 hours of his birth - which is standard procedure.

Sadly, the lawsuit was unsuccessful. The National Legal Center for the Medically Dependent and Disabled, in conjunction with Oklahoma attorneys, represented the plaintiffs through nearly 10 years of hearings and appeals, before the Supreme Court decided, last January, not to hear the case. The plaintiffs began in the Federal Courts with an 11-count complaint, charging wrongful deaths, malpractice, violations of fundamental Constitutional rights, a failure to inform the families that they were participating in an experiment, discrimination under Section 504 of the Rehabilitation Act and other violations of Federal law. Between 1983 and 1990 the courts threw out all the counts. When the Supreme Court refused to reinstate the Section 504 complaint in January, they ended the long legal battle.

"What the Supreme Court could have done by recognizing we had a viable complaint under Section 504 was to send a message to hospitals all across the country, and physicians across the country that you *will* have claims against you if you discriminate against the disabled child in a situation where the treatment is related to that disabling condition," says Jane Brockmann, one of the National Legal Center attorneys who handled the final stages of the case. "We could have scared physicians across the country away from what these physicians did."

Readers of "The Rag" will recall that the European Holocaust of World War II began with the government-ordered murder of persons with physical and mental disabilities, most of whom were killed by their own doctors. This program began two years before World War II and claimed the lives of over 100,000 Germans with disabilities. Ever since the full scope of the Nazi racial crimes was revealed, Americans have insisted to the world that the mass murder of "undesirables" under the authority of State and Science is a crime of which we are not capable.

Indeed, if there is a difference that stands out between the attitudes of the German doctors who murdered their own patients and the "researchers" at the Oklahoma Children's Hospital, it is this: the German doctors acted in secret, knowing that their crimes must not be exposed. They hid their killings behind an elaborate arrangement of phony death certificates and other official paperwork. The Oklahoma doctors, on the other hand, proclaimed what they had one openly, in the most prestigious medical journal of their specialty. They understood the attitude of the American public towards persons with disabilities. Evidently, they understood it better than we disability rights activists do today! They knew that any furor over their crimes would dissipate without harming their careers, and they knew that in the end their colleagues would admire and emulate them.

"We are beginning to see hospitals going to court, trying to establish `rights' for themselves," says Ms. Brockmann. "Hospitals are seeking the right not to treat some patients." Of course, these patients are persons with disabilities who require expensive, intricate and sometimes long-lasting treatment. In extreme cases, hospitals have sued to have a legally competent parent or spouse removed as the guardian of a person with a disability, so that a new guardian can be appointed to discontinue treatment. Ms. Brockman sees a trend in the courts: "It seems that when a patient with severe disabilities sues to request that treatment be withheld, the courts are inclined to grant that request; but when someone sues on behalf of such a patient in order to continue treatment, they will have an uphill battle. Treatment should be the default decision in ambiguous cases. The Constitution expressly protects the right to live. As Congress begins to debate the role of rationing in health care reform, the court will no doubt rule on more "right-not-to-treat" cases.

Today Carlton Johnson, the boy who "beat the odds," is 10. He attends a segregated educational program for children with disabilities, where he is making progress. He does not communicate by speaking, but he is an alert, active and competent child who wheels himself about and plays for hours on an electric organ his family gave him. He recognizes friends and loved ones. He has the capacity for enjoyment and happiness. His life may not be "useful" according to the pseudo-mathematical standards of the of the doctors who once condemned him to death, but he has one great advantage over the men and women who once plotted to deprive him of his life. He will never, ever commit an act of injustice towards another human being as great as the crime they committed against him.