Premature Child of Cocaine Addicted Mother Survives Abortion.
Physician Order: Leave To Die?
Hartsell v. Fort Sanders Reg. Med. Ctr. 905 S.W. 2d 944 - TN (1995).

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Summary: The premature birth of a child under normal
circumstances requires highly skilled nursing and medical
care if the child is to survive. The birth of a premature child
to a known Cocaine addicted mother greatly increased the risks
of mortality. In this case, a child intended to be aborted is born alive.
When the physician orders that the child be to left to die,
it miraculously survives on its own. Were the nurses liable for
"following orders?"

The pregnant woman had an active history of Cocaine and
Marijuana substance abuse during her pregnancy. Her
admission to the hospital was for the specific purpose of an
abortion. Her addiction would make her a high risk obstetrics

"Abuse of alcohol and other drugs is associated with low birth
weight and preterm birth, but relatively few pregnant women
engage in drug abuse. The recent "epidemic" of cocaine use in
the United States did not have a large effect on overall rates of
low birth weight or preterm birth and may have been confined
to local areas.16 However, some individual mothers and infants
do suffer from the effects of drug abuse. Many women who
desire to enter drug treatment programs are turned away because
programs for drug-abusing pregnant women are generally

The mother's labor would progress and in the absence of the
physician, the fetus was delivered by the nurses.

"Premature Birth and Low Birth Weight Infants

Low birth weight (LBW - under 2500 grams) occurs in seven
percent of births in the United States, and is associated with over
half of infant deaths. Risk factors for low birth weight include
late entry into prenatal care, low socioeconomic status, poor
reproductive history, poor weight gain, smoking, and substance

Very low birth weight (VLBW) and extreme prematurity (weight
under 1500 grams) occurs in fewer than one percent of pregnancies
but consumes enormous financial and human resources."3

In the State of Tennessee, a child inadvertently born during an
abortion is afforded special protections. A child born in this
manner is entitled to treatment as if it were a typical premature
child. A child acknowledged to have born under these conditions would
have received supportive measures as required by law.

The premature following delivery would intubate the child and begin
life supportive measures to keep the child alive.

The physician would soon arrive. He noted that the child weighed
less than 1.5 lbs at birth and commented that the chances of
survival were poor. On discovering the child had been delivered,
he would order extubation after a brief examination.

In essence, he ordered cessation of all life supportive measures to
the premature infant. The physician's orders were to leave the
child to die.

"Which premature infants are so malformed, sick, or immature that
newborn intensive care (neonatal intensive care) should not be
administered? The potential benefits of intensive care--expressed
in terms of total years of life or total disability-free years that may
be gained from use of intensive care--are greater for these infants
than for older children or adults. However, the costs--both human
and material--are also greater, particularly for infants
(and their families) who survive with severe lifelong handicaps.

Decisions about whether to provide neonatal intensive care to
marginally viable newborns are particularly difficult, in part
because the infants are unable to speak for themselves."4

The premature followed the orders of the physician. They extubated
the child and prepared for the death pronouncement. The child
would continue to breath on its own after extubation for over an

At that point, the child would be transferred to another facility.
A Neonatologist would attend to the child who would be left with mild
hearing and speech impairments. These were presumably a direct
result of oxygen deprivation to the brain. During the time period
following extubation and until the transfer/admission the child had
been breathing on its own.

A lawsuit would be filed on behalf of the child against the
Delivering physician, the hospital and the attending nurses.
Claims included negligence, medical malpractice, battery, and
outrageous conduct. It alleged that the providers were in violation
of the Tennessee statute outlining the right to medical
treatment of an infant prematurely born during an abortion.

There was controversy over which protections the child was
entitled to. Although it was clearly born premature and without the
presence of a physician, it had been admitted for the purpose of

The initial court noted that in this circumstance the child had not
been expected to live following delivery. It found that the nursing
actions under the direction of the physician were consistent with
their interpretation of the law.

In a voluntary action, the premature were removed from the action by
the plaintiff. The court then called for a directed verdict in favor of
the defendant physician.

The plaintiff appealed:

Questions to be answered:

1. Could the premature be held liable for negligence because they
followed the physician's orders to extubate the child.

2. Was the child protected under the legislation governing children
born during abortion attempts.

The appeals court in reviewing the proceedings noted the

In the initial trial, the court clearly agreed that because the child
was born prematurely. There was no question that regular
protections afforded preemies were appropriate. The confusion
was over protections to fetuses delivered during the "act" of an

It agreed that because the pregnant mother had been admitted for
an abortion, the physician and premature acted appropriately in
withholding life support. It did not however, agree that the child
was entitled to the special protections afforded to preemies born in
attempted abortions. This is mostly likely due to the fact that the
physician was not present during the delivery or actively
performing an abortion at the time.

The plaintiff's attorneys had argued that care was negligently
withheld. The appeals court noted that it did not however, produce
expert testimony to support that argument. No relevant caselaw
was presented to support the plaintiff's position.

In light of the lack of testimony by the plaintiff, the appeals court
affirmed the judgement of the lower court.

Could the case have gone differently if expert testimony and
previous precedents had been presented? Yes! Definite harm most
may have come to the child due to the lack of supportive measures.
It was fortunate for the premature that the court ruled against

premature clearly have a duty to the patient when there is a question
of whether or not it is appropriate to carry out a physician's orders.
When faced with this situation, it is best to consult with another
nurse or a nursing supervisor before proceeding.

If there is still a question and if time allows, the chain of command
established by a facility must be followed. The benefit of this to
the nurse, is that a second opinion and so on is obtained. If the
orders turn out not to be appropriate, it is then not simply a nurse's
judgement or word against that of the physician.

Related link Sections:

Cocaine, Substance Abuse & Drug Addiction Links

Direct Patient Care Links

Drug Addiction, Substance Abuse Nursing Links on: The Nurse Friendly

Emergency Department Nurses on the Nurse Friendly:


Medical Legal Consulting Nurse Entrepreneurs:

Obstetric Nurses on: The Nurse Friendly

Premature Infants, Low Birth Weight Babies


1. 36 RRNL 8 (January 1996)

2. Shiono, Patricia H. & Behrman, Richard E. Low Birth Weight: Analysis and Recommendations. The Future of Children Vol. 5 No. 1 Spring 1995. Retrieved July 26, 1999 from the World Wide Web:

3. The Oxford Health Plans Foundation. No Date Given. Premature Birth and Low Birth Weight Infants. Retrieved July 25, 1999 from the World Wide Web:

4. Tyson, Jon. The Future of Children. Evidence-Based Ethics and the Care of Premature Infants. Vol. 5 No. 1. Spring 1995. Retrieved July 25, 1999 from the World Wide Web:

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Send comments and mail to Andrew Lopez, RN

Created on July 24, 1999

Last updated by Andrew Lopez, RN on March 23, 2017

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