After nearly six years of litigation, an Idaho jury will now hear a high-stakes case that pits child protection laws against the right of a couple to decide whether their infant daughter should have a spinal tap test for meningitis.

Corissa Mueller and daughter Taige

The long-awaited trial will focus on a critical five-hour period which began when Corissa Mueller brought her daughter Taige to the emergency room of a Boise hospital with flu-like symptoms and ended when Dr. Richard MacDonald — over her vehement objections — performed the “lumbar puncture” procedure.

After consulting with MacDonald, Boise Police Detective Dale Rogers had authorized the procedure under a child protection law that allows police to “seize” a minor without a court order when “necessary to prevent serious physical or mental injury to the child.”

Mueller and her husband Eric sued MacDonald, the city of Boise, and state social workers in August 2004. “The Mueller case could spell out the federal constitutional limits on the authority of state officials to interfere with family decisions about medical, educational or other difficult issues,” says the Center for Individual Rights in Washington, D.C., which is representing the couple.

Jury selection began June 7. The trial judge and the U.S. 9th Circuit Court of Appeals have boiled the case down to two key issues:

• Was Taige in “imminent danger of serious bodily harm” when Rogers ordered her into the custody of the state?

• Did Macdonald exaggerate the risk Taige faced so he could use Rogers’ authority as a police officer to deprive the Muellers of their parental rights?

MacDonald has testified he told Rogers there was a five percent chance that Taige had meningitis or some other life-threatening condition. He also said time was running out to treat her effectively.

“Dr. MacDonald did not have the luxury to play Mrs. Mueller's game of chance and roll the dice with Taige's life and well-being,” he argues in a trial brief.

But the Muellers' medical expert has disputed whether Macdonald could have reasonably believed that Taige faced a five percent risk of death. “[T]here are questions of fact concerning Dr. MacDonald's risk assessment,” U.S. District Judge B. Lynn Winmill noted in a February 2007 ruling.

Winmill also said there were “questions of fact concerning whether Detective Rogers violated the Muellers' parental rights by not securing a judicial hearing ... before seizing Taige.” The Muellers claim in their trial brief that

there is strong evidence that the City of Boise believed that police officers, and not judges, should make decisions concerning whether medical neglect threatens the life of a child.

Taige was only five weeks old when her mother rushed her to St. Luke's Regional Medical Center with a temperature of 101.3 on Aug. 12, 2002. Laboratory tests including urinalysis came back negative for urinary tract and ear infections and intravenous fluids brought her temperature down 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 “lumbar puncture,” which uses a needle to take fluid from the spinal column.

Parental rights plaintiffs have often invoked religious objections to medical treatment. But Corissa Mueller has said she objected to her daughter's spinal tap for the medical reason that the risk of infection from the needle puncturing the spine outweighed the risk from not performing the procedure.

According to the city of Boise, Taige's temperature had gone back up to 101 when Rogers, who had been summoned to the hospital by a social worker, ordered that she be seized by the state so MacDonald could perform the spinal tap.

“In light of Taige Mueller's worsening condition combined with Dr. Macdonald's professional opinion that there was a five percent chance that the infant could die if she did not receive immediate treatment, Detective Rogers determined that Taige Mueller was in imminent danger,” the city said in a brief.

Taige tested negative for meningitis and her parents insist she “was not in imminent danger of serious bodily harm, and Rogers could not reasonably have believed that she was; accordingly, Rogers had only one constitutional choice, and that was to seek [a court] order. When he chose to make the decision himself, he violated the Muellers’ rights.”

By Matthew Heller
6/8/10