Texas court denies appeal from family to keep 10-month-old baby on ventilator

Nick Torres was placed in intensive care on September 24, 2020, after being found unconscious in a bathtub, according to court documents. By Amir Vera and Gisela Crespo, CNN

(CNN) -- A family hoping to keep their 10-month-old son on a ventilator was denied their appeal by a Texas court Friday, family attorney Kevin Acevedo said.

The baby, Nick Torres, was found unconscious in a bathtub in Harris County last month, according to court documents. Harris County encompasses Houston.

Nick's parents, Mario and Ana Patricia Torres, then sued the Texas Children's Hospital to keep Nick on life support, arguing the child is alive, while medical staff declared him brain dead, their complaint says.

A judge denied the temporary injunction last week, but allowed the family more time to file an accelerated appeal with the 14th Court of Appeals, which serves Harris County. On Monday, that court gave all sides until Wednesday at 5 p.m. to present evidence, Acevedo told CNN.

In Friday's judgment, a three-judge panel said they found "no error" in the initial decision made by a district court. However, the judgment won't go into effect until Monday at 5 p.m.

"His heart is still beating, apparently his temperature is still being regulated by some part of his brain," Acevedo said. "He may be unconscious but he's not fully brain dead."

Acevedo said he submitted a second emergency motion Friday morning requesting the hospital feed Nick nutrients, which the parents claim are being denied to the child. The motion also asks for more time for an outside doctor to further evaluate Nick. Acevedo says he's received no response regarding the second motion, which he said he submitted shortly before the judgment came out.

Following the Court of Appeals decision, Acevedo said he sent a letter to Texas Children's legal counsel, requesting that the hospital begin to feed Nick the nutrients he needs for his heart to continue working, and to allow the parents to take Nick home for hospice care.

In a statement Friday responding to the decision, Texas Children's Hospital said that it's medical care team's unanimous opinion that there is nothing further that can or should be done for the child.

"As the 14th Court of Appeals noted in its decision today, the physicians followed current medical standards of care and determined the child has an irreversible cessation of his spontaneous brain function. This is a point that the family has not disputed in court," the statement said.

The hospital also addressed the family's request for Nick to be transferred home for hospice care, saying the hospital will follow the medical examiner's instruction and Texas law.

The hospital "will continue to follow the court's orders in hopefully reaching a resolution to this tragic situation soon," the statement said.

Responding to the family's claim that Nick is not being fed nutrients, Jenn Jacome, the hospital's director of public relations, told CNN that according to medical records, the child "has been brain dead due to the irreversible cessation of all spontaneous brain function since at least September 27, 2020, when the first brain-death exam was positive for brain death."

Baby was found unconscious in bathtub

Nick was placed in intensive care on September 24 after being found unconscious in a bathtub, "laying in water and unresponsive," according to court documents.

He was transferred to the Texas Children's Hospital in Houston from the local hospital where he was first taken.

After six days, the complaint says, hospital staff told Nick's parents they must disconnect the child from any life-support system because he wasn't showing any signs of brain activity, and said this was enough to declare him "deceased."

The parents argue the child's heart is still beating on its own, giving them hope their child could survive, according to the complaint.

A brain death exam was performed on September 27, the hospital said, which was positive. A subsequent evaluation showed no evidence of blood flow in the brain.

Dr. Matthew Musick, the senior medical director for the hospital's pediatric intensive care unit, said in a court filing he pronounced the boy dead on September 30 and that the boy's body was showing "postmortem deterioration."

The boy's "current condition and physiological changes have nothing to do with the presence of oxygen provided by the ventilator. In addition, these changes cannot be stopped or slowed by the ventilator or any other service," Musick said.

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