May we refrain from resuscitating or interrupt the resuscitation of a newborn baby to avoid a risk of handicap? This is the question raised by the judgement – largely polemic – rendered in June 2009 by the Administrative Court of Nîmes (France) and sentencing the Hospital of Orange (France) for « unreasonable obstinacy » during the resuscitation of a newborn baby.
Obstinacy: medical error ?
When he was born in 2002, the little Michaël was in a state of « apparent death » and presented so many heart anomalies that he was rapidly considered as dead. When the physician was announcing the death to the parents, the resuscitation team carried on its efforts and brought the baby back to life after 20 minutes during which the baby brain was not sufficiently oxygenated. Today Michaël is seven years old and presenta very serious physical and mental handicap due part to resuscitation sequelae and part not determined to a « Dubowitz syndrome« . The judges referred to arguments of the family’s lawyer who estimated that « the fair decision was to allow the natural death to take its rights« . According to them, « by practising [the resuscitation] without considering the harmful consequences highly predictable for the child,the physicians showed an unreasonable obstinacy (…) constituting a medical error expected to engage the liability of the hospital of Orange« .
This judgement generated anxiety in resuscitators and neonatologists which were worried that it sets precedent and that practicing resuscitation becomes distorted: medical professionals could stop too early during a resuscitation phase for fear of having their liability engaged. However, for Philippe Hubert, head of paediatric resuscitation department in Necker Hospital, « not resuscitating a newborn baby in a state of apparent death would be a medical error« as « 97% of children [born in apparent death state] do not show any sequela« , confirms Dr Mostafa Mokhtari, resuscitator at Bicêtre Hospital.
Defining unreasonable obstinacy
Moreover, in the emergency of resuscitation situations, the notion of « unreasonable obstinacy » has to be considered with caution. « The unreasonable obstinacy is defined by gathering a certain number of prognostic arguments and elements« , explains Pr Umberto Siméoni, chairman of the Ethical Commission of the French Society of neonatology, however « we cannot predict, precisely, the prognostic to be able to define what would be an unreasonable obstinacy at the moment when the life of the patient is challenged« . « In the extreme emergency, when the survival of a newborn baby is compromised, for some minutes, the duty of the physician is to provide assistance to this newborn baby. For all that, it is medically impossible to recognise at this time any sign indicating with sufficient precision the prognostic of the ill patient« . On a medical level, we know that after three minutes of lack of oxygen, there are irreversible brain consequences that cannot be assessed as long as the child is not resuscitated. Generally, we estimate as unreasonable the interruption of a neonatal resuscitation if the child did not recover his vital functions within half an hour.
Accepting the uncertainty
The article 37 of the French Code of Medical Deontology according to which the judgement has been rendered stipulates that « the physician must avoid any unreasonable obstinacy in the investigations or the therapy« , but under the objective rules of caution accepted in neonatal resuscitation, the Minister for Health estimated: « We ask a lot to medical teams, but (…) the decision was made in the best way« , with the inevitable part of uncertainty inherent in any decision made cautiously and consciously.