BOISE -- Judges with the 9th U.S. Circuit Court of Appeals sharply questioned the attorney of a woman who sued after her infant was given a spinal tap against her wishes.
The three-judge panel was in Boise Tuesday to hear an appeal from Eric and Corissa Mueller's attorney, who contend their rights were violated when their daughter was taken from their custody and given a spinal tap because doctors feared she had a dangerous infection.
The Muellers believed she had a cold.
Senior Judge Stephen Trott told attorney Michael Rosman that it's easy to second guess the decisions made by doctors and police now, but things may not have been so clear in the emergency room back in 2002.
At the heart of this debate is the question of whether parents have to the right to make medical decisions for their children, or if doctors and police can ultimately choose what should be done for the child.
"This case goes directly to the essence and the core of emergency medicine," said Rich Hall, the attorney representing the ER doctor in this case.
The Muellers' attorney says the ER doctor didn't rule out other possibilities for the baby's fever and jumped right to a spinal tap. His clients wanted to do something less invasive to start.
"The steps that were taken were all aimed at protecting the baby," said Hall.
Michael Rosman, the attorney for the Muellers, says when Corissa Mueller did not consent to the spinal tap a police officer was called. The detective decided Tage was in immediate danger. She was taken away from her mother and a spinal tap was performed.
"It was a situation where the police officers did what was best to maintain dignity and protection and safety of the child as well as those other patients in the hospital ER," said Kirtlan Naylor, the attorney for the city of Boise.
But the Muellers have a different take on what happened.
"Parents rights were in our view violated because the police came in and countermanded their medical decisions with respect to their daughter," said Rosman.
In the end, Tage's spinal tap shows she did not have meningitis. The Muellers' attorney says this legal battle isn't about their family -- it about parents across the country.
"This case suggests that when a child with a very modest fever goes into the hospital that the police can come in and take over and make medical decisions for the mother and the father," said Rosman.
St. Luke's, the ER doctor and the city of Boise hopes the judges will again rule in their favor so they can protect young patients.
"I think what it would do is establish the laws that are already on the records to protect children from neglectful parents or neglectful situations or circumstances that might cause them harm," said Naylor.
Ultimately, the three judges from the 9th U.S. Circuit Court of Appeals will decide.
It could be months before a decision is announced.
If the Muellers win this case will go back to trial. If they loose, they could appeal to the U.S. Supreme Court but their attorney is not sure if they will try that.