McGlothlin v. Bristol

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED February 11, 1998

Cecil Crowson, Jr. TERESA MCGLOTHLIN and KATHY ) C/A NO. 03A01-9706-CV-00236 Appellate C ourt Clerk HELTON, ) ) SULLIVAN LAW Appellants, ) ) HON. JO HN M cLELLA N, III v. ) JUDGE ) BRIS TOL OBS TET RICS , ) GYNECOLOGY and FAMILY ) PLA NNIN G, INC ., ) ) and ) DR. GARY BOYLE, ) AFFIRMED ) AND Appellees. ) REMANDED

TERRY C. FRYE, Bristol, VA, for Appellants.

CHARLES T. HERNDON, IV, HERNDON, COLEMAN, BRADING & McKEE, Johnson City, for Appellees.

O P I N IO N

Franks, J.

Plaintiffs, m other and d aughter, sue d defend ants, chargin g defend ants performed an a bortion on daugh ter, in violation of T.C.A. §39 -15-202, and the do ctor, in performing the abortion, was guilty of medical malpractice and battery upon the daughter.

The Trial Court dismissed the part of the complaint relying upon violation of the statute, on the grounds that the statute was unconstitutional, and granted summary judgment on the remaining causes of action. Plaintiffs have *2 appealed.

The disputed statute was passed by the General Assembly in 1989, and recorded a t Chapter 5 91, Public A cts of 198 9, which A ct states, in pertine nt part:

Section 39 -15-202. C onsent of pregnan t woman required pr ior to abortion-information provided by doctor-Waiting period-Penalty for violation-N otice to paren ts or guardia ns-Requ irements ina pplicable in certain cases.

(a) An abortion otherwise permitted by law shall be performed or induced only with the informed written consent of the pregnant woman, given freely and without coercion. Such consent shall be treated as confiden tial.

(b) In order to insure that a c onsent fo r an abortion is truly informed consent, an abortion shall be performed or induced upon a pregnant woman only after she has been orally informed by her attending physician of the follow ing facts and has signe d a consent form acknowledging that she has been informed as follows:

(1) That according to the best judgment of her attending physician she is pregnan t;

(2) The number of weeks elapsed from the probable time of the conception of her unborn child, based upon the information provided by her as to the time of her last menstrual period or after a history, physical examination, and appropriate laboratory tests;

(3) That if more than twenty-four (24) weeks have elapsed from the time of conception, her child may be viable, that is, capable o f surviving outside of th e wom b, and that if s uch child is prematurely born alive in the course of an abortion her attending p hysician has a le gal obligation to take steps to preserve the life and health of the child;

(4) That abortion in a considerable number of cases constitutes a major surgical procedure;

(5) That numerous public and private agencies and services are available to assist her during her pregnancy and after the birth of her child, if she chooses not to have the abortion, whether she wishes to keep her child or place him or her for adoption, and that her physician will provide her with a list of such agencies and the services available if she so requests; or

(6) Num erous ben efits and risk s are attenda nt either to continued pregnancy and childbirth or to abortion depending upon the circumstances that the patient might find herself in. The physician sha ll explain thes e benefits a nd risks to the best of his ability and knowledge of the circumstances involved.

(c) At the same time the attending physician provides the information required b y subsection (b) of this section, he shall inform the pregnant woman of the particular risks associated with her pregnan cy and childb irth and the a bortion or c hild delivery tech nique to be employed, including providing her with at least a general description of the medical instructions to be followed subsequent to the abortion or child birth in order to ins ure h er sa fe re covery.

(d) There shall be a two (2) day waiting period after the physician provides the required information, excluding the day on which such information was given, and on the third day following the day such information was given, the patient may return to the physician and sign a consent form.

Vio latio n of this s ubse ction by a physician is a Cla ss E f elon y.

Provided, however, that this subsection (d) shall not apply when the attending physician, utilizing his experience, judgment, or professional competence, determines that a two (2) day waiting period or any w aiting pe riod w ould en dange r the life o f the pre gnant w oman . Such determination made by the attending physician shall be in writing and shall state his medical reasons upon which he bases his opinion that the waiting period w ould enda nger the life o f the pregn ant wom an. This provision shall not relieve the attending physician of his duty to the pregnan t woman to inform h er of the fa cts under su bsection (b ) of this section.

(e) The attending physician performing or inducing the abortion shall provide the pregnant woman with a duplicate copy of the consent form signed by her.

(f) The attending physician or agency performing an abortion upon a minor of less than eighteen (18) years of age shall inform the parents or legal guardians of such minor, or if the whereabouts of the parents cannot be determined and there is no other legal guardian than the agency or other individual to whom the child’s custody has been transferred, two (2) days prior to the operation that an abortion is to be perform ed upon such min or. Provide d howe ver, the prov isions of this section shall in no way be construed to mean, provide for, or authorize parental objection to, in any way, prevent or alter the decision of the minor to proceed with the abortion.

Notice shall not be required if:

(1) The minor is emancipated by marriage; or

(2) The attending physician determines that, in his best medical judgment, the abortion is necessary to preserve the life or health of the mother and must be performed prior to the expiration of the two (2) day notice period.

(g) The words “the physician” and “the attending physician” as

used in this section shall mean any licensed physician on the service treating the pregnant woman.

(h) The provisions of this section shall not apply in those situations where an abortion is certified by a licensed physician as necessary to preserve the life of the pregnant woman.

In response to the notice of challenge to the constitutionality of the statute the Attorney General, responded:

The statutory provision at issue, Section 39-15-202(f), was deleted by amendment in 1995 and is, accordingly, no longer in effect. The Attorney General declines to defend the constitutionality of this repealed statutory provision.

The Ch ancellor, in his opinion, said and we quote w ith approva l:

The plaintiff, then a minor 17 years and approximately 10 months of age, contracted for an ab ortion on Septemb er 29, 1990. The statutory scheme in effect in Tennessee at the time provided that if a person was under 18 years of age, that the attending physician would inform that person’s parents of the contemplated procedure two days prior to the abortive procedure being performed on the minor. The two-day waiting period set forth in subsection (d)(1) of T.C.A. 39-15-202 applies to a pregnant woman who has been orally informed by her attending physician of factors (1) through (6) and requires the signing of a consent form ack nowled ging that the patient has b een advise d of the statu torily prescribed information. S ubsection (f)(1) and (2) is the on ly statutory subsection of T.C.A. 39-15-202 solely applicable to an individual less than 18 years o f age. It furth er appears that the statutory co nstruction in question represents the effort of the legislature to address the constitutiona l infirmities con tained in prio r legislation as it re lates to abortion rights and minors. This statutory scheme was legislatively re- establish ed in 19 95 and is now provid ed in T .C.A. 3 7-10-3 01, et seq. This legislation has again been found to be constitutionally infirm first for failure to properly protec t a minor’s co nfidentiality and anonymity in seeking a judicial bypass of parental consent and secondly for failure to provid e a suff iciently ex peditiou s bypass p rocedu re. . . . See Me mphis Planned Parentho od, Inc. V. D onald Su ndquist, et al., ___ Fed. Supp. (M.D. Tenn. 1996). It thus appears that both the Tennessee Supreme Court and the United States District Court reviewed Tennessee’s various statutory provisions as they apply to a minor’s right to terminate her pregnancy by taking into consideration not only the provisions regarding parental consent and two-day waiting period but also consideration of the four criteria required by the United States Supreme Court in the case of Bellotti v. Baird, 443 U .S. 622 , 99 S.C t. 3035 ( 1979) . Bellotti established the four criteria that a judicial bypass procedure in a consent statute such as Tenne ssee’s must satisfy. The United D istrict Court found that the 1995 re-enactment failed to meet the two of the Bellotti- imposed criteria.

The Court finds that Tennessee’s statutory scheme involving abortions as it relates to a minor is so interw oven with other statutory provisions, that the Court can not elide a previously declared unconstitutional portion of a statute and determine that the remaining provisions are constitutional and effective particularly where so many of the provisions of the subject statutory scheme has been declared unconstitutional by state and federal courts.

...

Further as to the issue of plaintiff’s cap acity to consen t which is predicated upon T .C.A. 39-1 5-202, the C ourt finds th at the record fails to rebut the presumption of capacity by the plaintiff to sign the consent to abor tion do cume nt as a m ature m inor. See Cardwell v. Bechtol, 724 S.W.2d 7 39 (Tenn .. 1987). De fendants’ medical af fidavit is effe ctively unrebutted. A cause of action by plaintiffs based upon battery for failure to obtain informed or knowledgeable consent prior to the abortion being performed is not alleged nor supported by proper medical or othe r eviden ce.

Plaintiffs’ complaint predicates their cause of action upon defendants’ failure to com ply with T.C.A. 39-15-2 02(b) and (e) (battery or lack of informed consent and strict liability); thus, plaintiffs’ cause of action rests solely within the confines of the provisions of T.C.A. 39-15- 202. Therefore, the viability of plaintiffs cause of action based on battery or lack of informed consent and strict liability rests upon the viability of the statu te. . . . Add itionally, T .C.A. 3 9-15-2 01, et seq., fails to create a civil cause of action (although it does contain criminal sanctions) f or failure to n otify such pare nts or guard ians and is additionally constitutionally unsound in that it fails to provide a judicial by-pass proce dure wh ich the Un ited States sup reme Co urt manda ted in order to provid e to min ors their constitu tional gu arantee s. Bellotti v. Baird, supra at 642- 44 (19 79).

Plaintiffs ap peal that part o f the decisio n holding the statute unconstitutional, the allegation of interferen ce with family relations, and the sum mary judgment as to the allegations of battery and medical malpractice.

First, plaintiffs argue that we should uphold T.C.A. 39-15-202(f) and assert that the United States Supreme Court has never expressly required a by-pass proced ure in o rder fo r a notif ication s tatute to b e valid. Citing H.L. v. Matheson, 450 U.S. 398 (1981). The Matheson Court held that it would not entertain the constitu tional ch allenge to the sta tute bec ause th e plaintif f did no t have s tanding . Id. 101 S.Ct. 1189. In Matheson Mr. Justice Powell in a concurring opinion states the *6 rule succ inctl y:

Numerous and significant interests compete when a minor decides whether or not to abort her pregnancy. The right to make that decision may not b e unco nstitution ally burde ned. Roe v. Wade, 410 U.S. 113, 154, 93 S .Ct. 705, 72 7, 35 L.Ed .2d 174 (1 973); Planned Parenthood of Central M o. V. Dan forth, 428 U.S., at 74-75, 96 S .Ct. At 2843-2844 . In addition, the m inor has an interest in effe ctuating he r decision to a bort, if that is th e decisio n she m akes. Id. at 75, 96 S.C t., at 2844; Bellotti II, 443 U.S . at 647, 99 S .Ct., at 3035. T he State, asid e from the interest it has in e ncoura ging ch ildbirth ra ther than abortio n, cf. Maher v. Roe, 432 U.S. 464 , 97 S.Ct. 23 76, 53 L.E d.2d 484 (1977); Harris v. McR ae, 448 U.S. 297 , 100 S.Ct. 2 671, 65 L .Ed.2d 78 4 (1980), h as an interest in fostering such consultation as will assist the minor in making her decisio n as w isely as po ssible. Planned Parenthood of Central Mo. V. Danfo rth, sup ra, 428 U .S., at 91, 9 6 S.Ct. A t 2851 ( STEW ART , J., concurring ); post, at 1178 (STEVENS, J., concurring in judgment). The State also may have an interest in the family itself, the institution though which “we inculcate and pass down m any of our most cherished values, moral and cultural.” Moore v. East Cleveland, 431 U.S. 494, 503-504, 97 S.Ct., 1932, 1937-1938, 52 L.Ed.2d 531 (1977). Parents have a traditional and substantial interest in, as well as a responsibility for, the rearing and w elfare o f their ch ildren, es pecially d uring im mature years. Bellotti II, supra, 443 U.S., at 637-639, 99 S.Ct. At 3045-3046.

None of these interests is absolute. Even an adult woman’s right to an ab ortion is not unq ualified . Roe v. Wade, supra, 410 U.S., at 154, 93 S.Ct., at 727. Particularly when a minor becomes pregnant and considers a n abortion, th e relevant circ umstance s may vary wid ely depending upon her age, maturity, mental and physical condition, the stability of her home if she is not emancipated, her relationship with her parents , and the like. . . . In sum, a State may not validly require notice to parents in all cases, without providing an independent decision maker to whom a pregnan t minor can have reco urse if she b elieves that sh e is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests. (Empha sis supplied).

Clearly, under the Constitution of the United States and the case law decisions dealing with this issue, it is established that the statute as written offen ds the individual’s constitutional safeguards. Moreover, the statute impermissibly restricts the individ ual’s libe rty and pri vacy inter ests und er this St ate’s C onstitutio n. See: Hawke v. Hawke, 855 S.W.2d 573 (Tenn. 1993), and Davis v. D avis, 842 S.W.2d 588 (Tenn. 1992) , cert. denied 113 S.Ct. 1259 (1 993).

Next, plaintiffs contend that the Trial Court erred in finding the *7 remain ing sec tions of that statu te to be u ncons titutiona l, i.e., (a), (b) , (c), (d) an d (e).

Under th e familiar rule that we w ill only consider c onstitutional issu es if the matter may not otherwise be resolved, we conclude that no private civil right of action e xists for the alleg ed viola tions of the rem ainder o f the sta tute. See Roddy v. Volunteer Medical Clinic, Inc., 926 S.W.2d 572 (Tenn. App. 1996). As the Supreme Court in Planned Parenthood Association v. McWherter, 817 S.W.2d 13 (Tenn. 1991) observed , the legislature a dopted the statute as a pa rt of Chap ter 591 of th e Public Acts of 1989 when the legislature revised Tennessee criminal laws and sentencing procedure and this statute is a part of that massive revision and includes a criminal penalty for cer tain violations , i.e., a felony. Plaintiff s cite the 198 8 Public A ct, Chapter 929, which contains the following provision:

Failure to ob tain consen t pursuant to the requirem ents of this A ct is prima fac ie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. The law of this State shall not be construed to preclude the awa rd of exemplary damage s in any appro priate civil action relevant to the violation of this Act. Nothing in this Act shall be construed to limit the common law rights of parents.

They insist that “it only stands to reason that it would also be applicable to the similar issue of pa rental notifica tion”. This p rovision ha s no effica cy here. It is contain ed in another chapter of the Code and the Court in McWherter, in discussing Tennesse e’s 1988 Parental Consent Statute and Tennessee’s 1989 Parental Notification Statute, held that the two statutes were in “direct conflict” and observed at page 15:

Despite the absence o f an explic it repealer bill, there can be little question about the legislative intent with regard to the two conflicting statutes involved here. . . . Because of an irreconcilable conflict between the revisions of the 1988 Parental Consent Statute . . . and those of the 1989 Pa rental Notif ication Statute . . . the latter Statute h as effective ly repeale d the fo rmer by im plication . . . .

The Rule relating to whether a private cause of action is created by a statute is stated in 73 Am.Jur.2d §432, p. 530:

In this respec t, the general ru le is that a statute w hich does not purpo rt to

establish a civ il liability, but merely mak es provision to secure the safety or welfare of the public as an entity, is not subject to a construction establish ing a civil liabi lity.

Under the test we set forth in Bucke r v. Car lton, 623 S.W.2d 1 02 (Tenn. Ap p. 1981), we conclude that the legislature did not create a private right of action for damages, as it relates to the remaining sections of the Act. This is reinforced when the remainder of the Statu te is considere d indepen dent of the provision w hich we h ave held unconstitutional. The gravamen of the complaint as to both plaintiffs is the violation of the statutory provision requiring parental notice.

As to the claims of battery and medical malpractice, defendant doctor submitted an unreb utted affidavit stating that he wa s familiar with the standard o f care applicable to the procedure performed, and at all relative times exercised care required under that standard. No affidavit was filed in rebuttal of the doctor’s affidavit, and summ ary judgm ent wa s appro priate on the issue of me dical m alpractic e.

As to the re maining iss ue of batte ry, the affidavits f iled by defen dants present evid ence that the plaintiff w as a mature minor, and no coun tervailing aff idavit disputes this evidence. The Supreme Court in Bechtol teaches that a minor fourteen years of a ge or ol der is pre sumed to have the cap acity to co nsent to treatme nt. Id. at 745. This presumption is not rebutted on this record, and indeed is reinforced by the affidavits f iled by defen dants. Bef ore leaving this issue, we point to our d ecision in Roddy at page 576, where we said:

Determining whether defendant failed to obtain informed consent from Ms. Roddy is dependent upon the standard of care of the profession or speciality. If informed consent is not effectively obtained, the defendant’s departure from the standard of care is not negligence, but battery, because the doctrine of battery is applicable to cases involving treatme nt perfo rmed w ithout in forme d or kn owled geable consen t. Malpractice is based on the lack of care or skill in the performance of services contracted for, and battery is predicated upon wrongful trespass on the pers on, regardle ss of the skill e mployed. T he assertion of one is the den ial of the other. . . . (Emphasis supp lied).

For the foregoing reasons, we affirm the judgment of the Trial Court and *9 remand a t appellants’ c ost.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

_(Separate Conc urring Opinion) Houston M. Godd ard, P.J.

I N T H E C O U R T O F A P P E A L S O F T E N N E S S E E

E A S T E R N S E C T I O N FILED February 11, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk T E R E S A M c G L O T H L I N a n d ) K A T H Y H E L T O N ) ) A p p e l l a n t s ) ) v . ) ) B R I S T O L O B S T E T R I C S , ) S U L L I V A N C O U N T Y G Y N E C O L O G Y a n d ) 0 3 A 0 1 - 9 7 0 6 - C V - 0 0 2 3 6 F A M I L Y P L A N N I N G , I N C . ) ) a n d ) ) D R . G A R Y B O Y L E ) ) A p p e l l e e s )

C O N C U R R I N G O P I N I O N

G o d d a r d , P . J .

I c o n c u r i n t h e o p i n i o n a u t h o r e d b y J u d g e F r a n k s . I w r i t e s e p a r a t e l y t o p o i n t o u t t h a t j u d g e s a r e a l w a y s r e q u i r e d t o f o l l o w t h e l a w a s p r o n o u n c e d b y s u p e r i o r c o u r t s , b u t t h e y a r e n o t r e q u i r e d t o a g r e e w i t h t h o s e p r o n o u n c e m e n t s . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ H o u s t o n M . G o d d a r d , P . J . 1 1