Last April, 23 year-old Rudy Linares disconnected his 15-month-old comatose son, Sammy, from the mechanical ventilator that was maintaining the infant's life. He then used a gun to keep hospital staff from interfering while he withdrew the machine, allowing his son to die of acute respiratory failure. The death of this infant stirred great controversy among doctors, nurses, lawyers and ethicists. It also generated much discussion in the news media. The clearest common denominator of this discussion has been the willingness of commentators to advance opinions and interpretations without knowledge of the facts of the case. Some of the opinions have been critical of the hospital, the doctors, and/or the nurses. The present report is not intended to answer such criticism. The report will simply provide the facts and legal opinions as to the case. To the extent this information leads the reader to understand or agree with the management of the case the report will serve as a defense of these actions. To the extent it leads to rejection or criticism of the management, the report will support the detractors.

Ever since I learned a year ago about the honor you intended to bestow upon me, I have asked myself: What is it in my life's work that led you to confer upon me your Second Presidents' Award? You could have chosen many other, perhaps more deserving, recipients. But tonight I do not wish to compare myself to others. It would be most ungracious to charge you with being mistaken, or too self-effacing to charge myself with being unworthy of your Award.

Ultimately, I concluded that you honor me less for the work I have published and more for the impact I have had on so many of you as your teacher and colleague during the last thirty years. I have lived my life with people—family, friends, students. I have cherished, and still cherish, the contacts with my students, a remarkable number of whom soon became collaborators, colleagues, friends or took off on their own, enriching in significant ways what we had first learned together.

Even many women who view reproductive capabilities not as a detriment but as an important source of joy in their lives recognize that women's reproductive capabilities have long been used to oppress them. The ability to reproduce has been an important factor in women's loss of control over their own lives, contributing to their being controlled by chance, by government, and by other people—husbands, boyfriends, parents. In the past, to the extent that reproduction has not been left to chance, the woman herself has often not been the decision-maker. Husbands have often coerced women into producing and raising offspring when they did not want to, and societal attitudes have had the same effect of encouraging marriage, then motherhood. Historically, state governments have participated in coercing childbirth as well, some by prohibiting or restricting birth control and all states by prohibiting abortion.

Even many women who view reproductive capabilities not as a detriment but as an important source of joy in their lives recognize that women's reproductive capabilities have long been used to oppress them. The ability to reproduce has been an important factor in women's loss of control over their own lives, contributing to their being controlled by chance, by government, and by other people—husbands, boyfriends, parents. In the past, to the extent that reproduction has not been left to chance, the woman herself has often not been the decision-maker. Husbands have often coerced women into producing and raising offspring when they did not want to, and societal attitudes have had the same effect of encouraging marriage, then motherhood. Historically, state governments have participated in coercing childbirth as well, some by prohibiting or restricting birth control and all states by prohibiting abortion.

On August 2, 1988, 6-month-old Samuel Linares aspirated a balloon at a birthday party and was unconscious and blue when his father, Rudolfo, found him. Nine months later, his father used a gun to keep medical staff at bay while he disconnected the respirator keeping his comatose son alive. Mr. Linares ignited much soul-searching among pediatricians, lawyers, and ethicists about treatment decisions for profoundly damaged children.

Public discussion of the ethics of forgoing life support in pediatric care moves like a pendulum betweeen fear of inappropriately allowing children to die and fear of unrestrained life-supporting technology. In the early 1970s, physicians’ and theologians challenged accepted tenets of law and ethics by proposing that pediatricians should allow critically ill or severely disabled babies to die without the most aggressive use of technology. By 1982, Baby Doe caught the nation's moral imagination and raised the possibility that withholding or withdrawing life-sustaining procedures amounted to sanctioned infanticide. This concern led to restrictions on the right of parents and doctors to decide to discontinue treatment. Public sympathy for Mr. Linares suggests that the pendulum may be swinging back toward a less restrictive public policy about forgoing life-sustaining treatment in children.

Fatal injuries are the leading cause of death in the United States up to age 44 and “kill more Americans aged 1-34 than all diseases combined.” Injuries also constitute the nation's second most costly health problem—after heart disease—and because they disproportionately involve young people, they are the leading cause of productive years of life lost.

Until quite recently, most injuries were viewed as random, uncontrollable events. But this view is changing in the face of mounting evidence that many of the 140,000 injury-related deaths, as well as a large percentage of the estimated 70 million non-fatal injuries annually, were not inevitable.

As in the case of disease, prevention is becoming a major tool in reducing the injury toll. In the development of effective prevention strategies, the law can play a pivotal part. But to make proper use of this preventive approach, there must be considerably more planning, coordination and determination in its application.

On August 22, 1986, as part of its response to the AIDS epidemic, the Public Health Service (PHS) invited U.S. industrial firms to collaborate with the government in the development of an AIDS vaccine. The framework for the collaboration was outlined in a PHS document entitled, “AIDS Vaccine Development: Private Sector/Government Collaborative Efforts.” This document identified the resources the government is prepared to make available to industry, including patents, facilities, data, and assistance with clinical trials. The overall aim of the PHS proposal was to establish a formal framework for coordinating existing government and private efforts and to foster industry participation in the search for an AIDS vaccine.

An example of private sector/government collaboration is provided in the human trial of an AIDS vaccine approved by the FDA in August 1987. The vaccine, named “VaxSyn HIV-1,“ is the product of a joint effort between a company called MicroGeneSys and investigators at the National Institute of Allergy and Infectious Disease (NIAID).

Those who study, teach, and practice in the field of injury epidemiology and prevention often compare injuries to diseases; to do so enhances the understanding that injuries, like diseases, have etiologic agents that act within particular environments to affect predictable hosts. It is important to stress the scientific underpinnings of injury control, so that injuries will not continue to be seen as randomly occurring events that strike the unlucky, who have little or no preventive opportunity available to them. Those within the field argue that injury prevention, like disease prevention, when approached with the proper scientific method, holds the prospect of saving thousands of lives per year in the United States.

The comparison of injuries to diseases, however, can distract attention from some crucial aspects of injury prevention. Infectious disease control is the story of man's battle with living organisms that often do their damage to hosts at the cellular or sub-cellular level. The pathways of those diseases can be difficult to discern, and some mysteries are yet to be solved. Injuries, on the other hand, do their initial damage on a more visible level. Their etiologic events are often apparent, and do not require epidemiologic or biochemical detective work for an understanding of the causes of injury.

Legal advice lies close to the death of Samuel Linares, closer than it usually does to the deaths of the many who die every day in American hospitals. Samuel's parents wanted the attending physician to disconnect the ventilator of their permanently unconscious son and allow him to die, something they saw as right for their son and their family. But this never happened. Samuel was not allowed to meet the death he had so narrowly avoided in August of 1988 when he accidentally swallowed a balloon and choked. He did not die uneventfully after his parents and the clinicians caring for him had carefully deliberated about the personal, ethical and professional propriety of stopping the ventilator and made a responsible decision about his fate.

Instead, Rudy Linares had to ward off nurses and security guards with a handgun until he disconnected his son's ventilator and held him in his arms until he died. According to the attending physician, Dr. Goldman, “There was no ethical difference of opinion here. The physicians agreed that the child was in an irreversible coma and would not recover. There was no medical opposition to removing the ventilator. What we faced was a legal obstacle.” (Emphasis added.)

For any hospital attorney, but especially for in-house legal counsel, the thought of a dissatisfied patient or other person turning to physical force or violence to achieve a particular outcome is the stuff of which nightmares are made. Apart from the human consequences of such situations, their occurrence means that counsel has failed to prevent problems. Problem prevention is one of the most important roles of any attorney and is the role which many in-house counsel view as their most important.

Resort to force within a health care setting is especially troubling, yet the potential for such outcomes exists in a variety of situations about which counsel are likely to be consulted. These include employee terminations, medical student or resident terminations from training programs, and, in the patient care context, situations where patient or family wishes are not mer. Just such an outcome occurred at Rush-Presbyterian-St. Luke Hospital, in Chicago, Illinois, (hereafter “Rush”) when Mr. Rudolfo Linares held hospital staff at gunpoint while he disconnected his infant son's respirator so that the child would die.

What medical care will I receive if I am too sick to make decisions about my care? Many people worry about this question, particularly about how they can retain control over such decisions. The portrayal in this case of physicians who fail to prescribe adequate pain relief and who feel threatened by active family participation in decision-making only reinforces such concerns. It seems that the hospice movement has had no effect on these physicians. Traditional advice, from wise grandmothers, might be to have a child who is a doctor or who marries a doctor. A more modern suggestion might be to give advance directives about future care. At first reading, this case illustrates the usefulness of both suggestions. But on closer reading the case reveals serious problems with both approaches.

In 1970, when Congress was debating the Occupational Safety and Health Act, it was argued that:

Congress cited some grim statistics necessitating vigorous action:

The human tragedy associated with the loss of lives, adverse health impacts, and serious injuries were the focus of legislative hearings, but Congess also addressed the economic impact of industrial deaths and disability.