Judge OKs Parents' Suit Over Spinal Tap on Infant

A federal judge has ruled that an Idaho couple can sue Boise police and an emergency room physician for depriving them of their right to decide whether their infant daughter should undergo a spinal tap test for meningitis.

Eric and Corissa Mueller have said they want their parental rights case to change the way medicine is practiced in Idaho. And they moved a step closer toward that goal as U.S. District Judge B. Lynn Winmill said a police detective may have illegally authorized the doctor to perform the spinal tap on five-week-old Taige Mueller.

Idaho's child protection statute allows police to “seize” a minor when “necessary to prevent serious physical or mental injury to the child.”

“[T]here are questions of fact concerning whether Detective [Dale] Rogers violated the Muellers' parental rights by not securing a judicial hearing ... before seizing Taige,” Winmill said in an order denying summary judgment to the city of Boise on the plaintiffs' civil-rights claim.

The ruling also allows the Muellers to proceed with a conspiracy claim against Dr. Richard MacDonald which alleges he induced Rogers to enforce the child protection law by deliberately overstating the case for performing the spinal tap.

Rogers has testified that MacDonald told him there was a five percent chance that “Taige Mueller could die within hours if the spinal tap was not performed and the antibiotics not given.”

Parental rights plaintiffs have often invoked religious objections to medical treatment. But religion had nothing to do with why Corissa Mueller objected to her daughter's spinal tap.

After Corissa brought Taige to St. Luke's Regional Medical Center with flu-like symptoms in August 2002, staff performed laboratory tests including urinalysis. By the time the tests came back negative, Taige's temperature had dropped from 101.3 to 98.9.

MacDonald, who had explained it was hospital policy to test infants with a temperature over 100.4 for meningitis, insisted on proceeding with the spinal tap, even though Corissa refused to consent. “[T]he risks of performing the spinal tap were at least as great as the risks of not performing it,” the Muellers said in their complaint.

Corissa alleges police confined her to another room in the hospital after Rogers informed her he was declaring Taige in imminent danger and had taken custody of the child. The spinal tap came back negative for meningitis and the Muellers had to wait more than a week before a judge returned Taige to their custody.

The suit seeks unspecified damages and a court order enjoining the seizure of a child “to effect interference with a parent's custodial rights where time permits the consultation of a judicial officer.”

According to Rogers, the process of calling the on-duty prosecutor who would then contact a judge would have taken too long. But Winmill said the officer “may have been influenced in part by a City policy discouraging the police to contact judges directly.”

The defendants have filed motions for reconsideration and indicated they will appeal if Winmill does not change his mind.

UPDATES

Judge Winmill denied the motions for reconsideration in a June 7 order.

The 9th U.S. Circuit Court of Appeals reversed Judge Winmill in an Aug. 10, 2009 opinion, dismissing all of the claims against Detective Rogers. "Our conclusion regrettably will come as no consolation to the Mueller family, but it is required by law based upon the
need to allow government officials to make reasonable decisions," the court said.