Kevin T. Brown

Publication Date


Document Type



In 1994, the Fourth Circuit Court of Appeals reaffirmed its position on the applicability of the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) when it decided In re Baby "K". Baby K, an anencephalic infant, was born in the hospital in October 1992. Anencephaly is a congenital malformation found in a very small number of infants in which a major portion of the brain, skull, and scalp are missing. One of the missing components of the brain is the cerebrum, which provides cognitive abilities and awareness and allows interaction with our surroundings. Baby K, therefore, lacked all of these abilities, was permanently unconscious, and could not see, hear, or otherwise interact with her environment. As a side effect of her anencephaly, Baby K had severe breathing problems at birth. Doctors at the hospital recommended that the infant be given only supportive care in the form of nutrition, hydration, and warmth and that a "Do Not Resuscitate Order" would be a possibility. The mother, Ms. H, refused these suggestions and demanded mechanical respiration for the infant. The hospital attempted to transfer the infant to other, more specialized hospitals, but none would accept her. These breathing problems persisted and required Baby Ks readmittance to the hospital on several occasions for further respirator treatment. On the second of these subsequent readmittances, the hospital, joined by the father of Baby K, Mr. K, (collectively "the Hospital") filed this suit for declaratory judgment on whether it must continue to provide such treatment to infants like Baby K. The United States District Court for the Eastern District of Virginia ruled that in light of the Rehabilitation Act of 1973, Americans with Disabilities Act, Child Abuse Amendments of 1984, EMTALA, and Virginia Medical Malpractice Act, the Hospital was not entitled to a declaratory judgment ratifying the discontinuance of such measures with Baby K. The Hospital appealed, contending that the district court erred when it: 1) construed EMTALA to require a particular treatment rather than imposing a prohibition on disparate treatment; 2) ignored the standard of care provided to anencephalic infants as shown by the evidence; 3) failed to recognize that physicians under Virginia state law can refuse to administer treatment the physicians believe to be ethically and medically unwarranted; and 4) ignored relevant language by not applying EMTALA only to patients who, although unstable, are transferred by hospitals. Finally, the Hospital had argued to the district court that further treatment of the anencephalic Baby K was "futile," and it should therefore not be required to continue to incur the expense of treatment which does not help the patient. On appeal, the Fourth Circuit Court of Appeals found these arguments without merit and elected to follow the plain language of the statute. The Court affirmed the decision of the district court, holding that EMTALA required the hospital to continue stabilizing respiratory treatment on Baby K when necessary.