A METRO STORY YESTERDAY ABOUT A CASE INVOLVING MEDICAL TREATMENT FOR A BRAIN-DAMAGED INFANT MISSTATED WHICH COURT RULED LAST WEEK IN THE CASE. THE DECISION WAS MADE BY A PANEL OF THE D.C. COURT OF APPEALS. (PUBLISHED 08/07/99)

Once again, a baby lay unconscious and severely brain damaged in a Washington area hospital bed with no chance of improving. The hospital doctors believed it was unethical to continue giving the baby aggressive medical treatment, but the mother disagreed.

And so the dispute went to court.

Five years ago, in the well-publicized "Baby K" case, the 4th U.S. Circuit Court of Appeals ordered Fairfax Hospital to continue treating a baby when she came to its emergency room, using all the medical tools available.

Last week, another right-to-die case involving the limits of medical care was decided with little notice. A panel of the U.S. Court of Appeals for the D.C. Circuit upheld a trial court ruling that a hospital did not have to give aggressive care to a hopelessly compromised infant--despite her mother's continued requests.

The 2-year-old girl, known as K.I. in legal papers, now has "do not resuscitate" orders attached to her bed at the Hospital for Sick Children in the District. That means she will continue to be fed through a tube and given the medicine she needs, but extraordinary measures will not be taken. "

According to the D.C. appeals court ruling, there was "clear and convincing evidence that it was in K.I's best interests to avoid use of aggressive resuscitation efforts which cause pain and discomfort." The requests--and the interests--of the mother were secondary, the judges concluded.

The decision is another guidepost along the medically, legally and emotionally perilous path cut by modern medical technologies, one already traveled by Karen Ann Quinlan, Nancy Cruzan and, more recently, Hugh Finn. Kept breathing by machines and "heroic" procedures, such patients continue to live in only a technical sense. Most such cases are now handled quietly by relatives and hospital ethics committees, but conflicts persist, as with Baby K and Baby K.I.

The K.I. case is unusual because she is not legally brain dead. According to court documents, she has lost use of the frontal, thinking portion of her brain, but parts of her middle brain still function.

Kenneth Rosenau, a lawyer appointed to be K.I.'s medical guardian, ultimately recommended that the "do not resuscitate" orders be approved.

"What I came to believe is that this was a case of therapeutic torture," he said, referring to the emergency treatments the infant continued to receive. "We had to focus on what was best for the child and ignore everything else. But frankly, the issues can keep you awake at night."

The appeals court ruling has local medical authorities breathing a sigh of relief. According to Edward J. Krill, who filed an brief for the American Medical Association and the Hospital for Sick Children in the K.I. case, hospitals have been struggling to abide by the guidelines set in the "Baby K" case.

That decision forced hospitals to provide care to anyone who enters their emergency rooms, however futile the treatment might be. (Baby K continued to receive care but died in 1995.) The ruling had the effect of granting greater rights to parents and relatives when issues of medical futility arise.

Krill said the K.I. ruling returns more authority to medical decision-makers. "There has to be a way for doctors to limit care to patients who can't benefit from it, to patients who may feel the pain of the therapy and nothing else," Krill said.

Significant differences in the Baby K and K.I. cases make their value as precedents uncertain.

In the Baby K case, the infant was born with the rare condition of anencephaly, in which a major portion of the skull and brain is missing. The child's mother believed her daughter could be helped by a miracle and wanted to keep her alive. Fairfax Hospital sued in federal court for the right to deny her treatment, but lost.

In the case of K.I., the baby was born 2 1/2 months premature and suffered from cerebral palsy, among other ailments. She was sent home with her mother with a battery of medicines and machines, but a month later, the District's Department of Human Services took custody of the child after the mother was found to be drinking and not caring properly for the child, according to court documents. When the child was about 1 year old, she had a seizure while hospitalized and didn't breathe for 25 minutes. She was placed on a respirator but was left severely brain damaged, blind and, in the opinion of her doctors, unable to experience anything but pain.

A year ago, Rosenau petitioned to have the "do not resuscitate" order implemented, and in October, D.C. Superior Court Judge Rafael Diaz agreed, saying that the mother's desire for more care was "contrary to all competent evidence." The mother, who is not identified in court papers, appealed.

According to her court-appointed attorney, William J. Driscoll, the mother believes that she should have a say in her daughter's care. "There are many cases locally and nationally that make clear a parent like the mother preserves some parental rights," he said. "The woman now is sober and employed, and she wants this child to live. Maybe she believes in miracles."