dissenting.
I respectfully dissent.
The majority erroneously concludes that a court order was not needed to override the parents’ refusal to consent to the resuscitation treatment. I have found no authority to support the majority’s conclusion. The Pennsylvania case cited, Parents United for Better Schools v. School Dist. of Philadelphia, 978 F.Supp. 197, 206 (E.D.Pa.1997), would only apply in a case where the parents’ refusal to consent would likely compromise the minor’s long-term prospects for health and well-being. In this case, it was established that the parents refusal to consent would not have likely compromised the minor’s long-term prospect for health and well being.
The other case cited, Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), does not support the proposition because it only concluded there was no cause of action in Texas for wrongful life by the surviving child because it was impossible to rationally decide whether that the plaintiff had been damaged at all. The Nelson case upheld the parents’ cause of action for “wrongful birth”, under which parents may recover the expenses necessary for the care and treatment of a child’s physical impairment proximately caused by the negligence of a physician. See id. at 923-24 citing Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975). The court reasoned that the damages were easier to calculate with less speculation involved in a “wrongful birth” case than in a “wrongful life” case. See id at 924.
I disagree with the majority’s conclusion that under these circumstances, a court order is not necessary to override the parents’ refusal to consent because no legal or factual issue existed for the court to decide regarding the provision of such treatment. The court must decide the most important issue: What is in the best interest of the child? A court decision in favor of the resuscitation would afford the physician and hospital the consent necessary to treat the newborn infant. In the interest of justice, having a court hear the matter would have provided an impartial tribunal without any conflict of interest or appearance of conflict of interest to decide the matter.
The majority concludes that the Millers could only refuse to consent pursuant to the provisions of the Advance Directives Act,1 formerly the Natural Death Act.2 That is, assuming Sidney’s condition was not certifiably terminal before or after birth, the requirements of that act could not be met, and no court order was needed to overcome the Miller’s refusal to consent. This is an incorrect interpretation of the Act. The majority erroneously concludes that the resuscitation was urgently needed and the time constraints did not permit resort to the courts. The Act is not mandatory and the Millers were not required to seek a directive thereunder. Actually, the Act expressly allowed, and did not deny, the Millers the right or responsibility to effect the withholding or withdrawal of life sustaining procedures in a lawful manner, whether a directive was obtained or not. See Tex. Health & Safety Code Ann. § 672.021 (Vernon 1992) (providing that “[t]his chapter does not impair or supersede any legal right or responsibility *198a person may have to effect the withholding or withdrawal of life sustaining procedures in a lawful manner.”).
The course the Millers took was lawful, and protected by the United States Constitution. See Bowen v. American Hosp. Assoc., 476 U.S. 610, 627 n. 13,630, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986) (holding that health care providers abide by parental decisions or seek state intervention). A discussion of the Natural Death Act, and whether the Acts’ definition of “Terminal Condition” could have or should have applied to this case is not relevant to the issues in this case.
The majority repeatedly refers to “urgently needed life sustaining treatment” and to the “emergency exception” without explaining how we can hold the “emergency exception” applies without a jury finding on the issue. I would hold as a matter of law there was no emergency. In Moss v. Rishworth, 222 S.W. 225 (Tex.Comm.App.1920), the court, held no emergency existed in upholding the Court of Appeals reversal of a jury verdict in favor of a physician. The Court stated in pertinent part:
The Law wisely reposes in the parent the care and custody of the minor child, and neither a physician nor those in temporary custody of the child will be permitted, in a case of this character (ie. no emergency), to determine those matters touching its welfare.
Id. 227 (Emphasis supplied).
Appellants had alternative courses available to them early on. Particularly,1 the course of withholding life support (no resuscitation), as first suggested by the Millers’ doctors, and with which the Millers agreed, could have been accomplished by a simple change of doctors. Another doctor holding a different opinion could have delivered the baby and not applied resuscitation. The appellants did not suggest to the Millers they could change doctors. There was ample time during which the appellants met and decided their chosen course of action without obtaining the Millers’ consent. The urgency, if any, was due to the appellants’ indecision and delay. Eleven hours elapsed after the Millers informed their doctors they wanted to take their original advice and not resuscitate the baby, if born alive. The appellants decided there was going to be resuscitation and performed it knowing the Millers were there and available to consult regarding the consent. This was not a medical emergency which excuses not having a consent.3 A true medical emergency is where a doctor must operate and no one is available to give the proper consent. The Millers were present in the hospital at all times leading up to the birth and resuscitation, but appellants chose not to try to change the Miller minds, change doctors, or try to obtain a court order. Anytime a group of doctors and a hospital administration has the luxury of multiple meetings to change the original doctors’ medical opinions, without taking a more obvious course of action, there is no medical emergency.
In the event there was no emergency as a matter of law, it was still the appellant’s burden to plead and prove as a defense an emergency or circumstances requiring the immediate resuscitative procedure without consent of the Millers. See Gravis v. Physicians & Surgeons Hospital of Alice, 427 S.W.2d 310 (Tex.1968). No defense questions were submitted to the jury. Specifically no question as to an emergency which would excuse having no consent was requested. See Tex.R.Civ.P. Rule 273. Appellant’s have not raised any issue regarding an emergency jury question on appeal. Therefore, we cannot consider whether an emergency existed which would imply consent and, in effect, deem the issue in favor appellants. Appellants waived the issue.
The resulting conflict could have and should have been avoided by the appellants. Appellants were not entitled to immunity or a deemed finding that an emergency existed to excuse obtaining a *199consent. I would overrule appellants’ issues, and affirm the trial court.
. Tex. Health & Safety Code Ann. § 166.001-.166 (Vernon Supp.2000).
. Tex. Health & Safety Code Ann. § 672.001-.021 (Vernon Supp.1992)
. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.07(a)(2) (Vernon Supp .2000)