Hathaway v. Worcester City Hospital, No. 72-1114.

• Decision Date: 22 March 1973
• Docket Number: No. 72-1114.
• Parties: Robbie Mae HATHAWAY, Plaintiff, Appellant, v. WORCESTER CITY HOSPITAL et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

475 F.2d 701 (1973)

Robbie Mae HATHAWAY, Plaintiff, Appellant, v. WORCESTER CITY HOSPITAL et al., Defendants, Appellees.

No. 72-1114.

United States Court of Appeals, First Circuit.

Heard January 3, 1973.

Decided March 22, 1973.

Mel L. Greenberg, Worcester, Mass., with whom Teshoian, Greenberg & Drapos, Worcester, Mass., and Matthew Feinberg, Boston, Mass., were on brief, for appellant.

Bennett S. Gordon, Asst. City Sol., for appellees.

Roger P. Stokey and Goodwin, Procter & Hoar, Boston, Mass., on brief for Planned Parenthood League of Massachusetts, amici curiae.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

Appellant, who has had twelve pregnancies resulting in eight live offspring, and whose life would be jeopardized by future pregnancies, challenges as unconstitutional the policy of the Worcester City Hospital barring the use of its facilities in connection with any consensual sterilization.

The following facts are established by the record. Appellant, married and 36 years old at the time of the complaint, suffers from high blood pressure and an umbilical hernia which, in addition to the sheer number of past pregnancies, render future pregnancies a risk to her life. Her blood pressure and heavy, irregular menstrual flow render birth control bills, intrauterine devices and other generally reliable contraceptive means either dangerous or ineffective. A therapeutic sterilization has therefore been recommended by her physician. The correctness of this advice is not disputed.¹ In addition, a psychological evaluation revealed that "further pregnancies might represent a sufficiently stressful circumstance to result in her psychological deterioration." Finally, she and her husband, who both work, have a combined yearly income of approximately $7500, which is below the federally defined poverty level for a non-farm family of 10. Although they are insured, through her husband's employment, by Blue Cross and Blue Shield, their policy, while covering the expenses of childbirth, does not cover the expenses of the recommended tubal ligation.

The hospital is a municipal hospital established pursuant to state law, Mass. Gen.Laws Ann. ch. 40, § 5(20), ch. 266, Mass.Acts of 1953, and city ordinance, ch. 4, § 1, Revised Ordinances of Worcester (1951 ed.), "for the reception of persons requiring relief during temporary sickness." Being an "acute short term general hospital", it does not provide indefinite or custodial treatment. The hospital recognizes the right of the appellant, as a resident of Worcester, to in-patient admission for any surgical or other procedure, such as childbirth, which it permits and for the performance of which it has the proper facilities. Although the hospital does not recognize a right of the appellant to have any in-patient procedure done free of its ordinary charges, it would admit her regardless of her financial condition for the performance of any permitted in-patient procedure. The hospital does provide free of charge, through its clinics, both pre-natal and post-partem care for Worcester residents who meet the hospital's income standards. The cost of a tubal ligation, whether performed in conjunction with a childbirth (in which case it is less expensive, painful, and disruptive of the patient's life) or separately, is significantly less at the Worcester City Hospital than at nearby private hospitals.

In June, 1970, the Board of Trustees, following receipt of an opinion by the Assistant City Solicitor of Worcester, formally adopted its pre-existing policy barring physicians from utilizing operating room facilities or staff personnel employed in support of those facilities, for the purpose of sterilization. Appellee administrator specifically refused appellant's request that the hospital permit her doctors to perform a tubal ligation at the time of the delivery of her eighth child in April, 1971. Nor was the operation performed after the delivery, despite apparent further requests. In the interim, the instant suit was filed in the district court, pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief and damages. The district court originally dismissed the complaint against the hospital because it was not a body corporate and thus not a proper party; and against the three named doctors, the chief of the surgical division, who is also president of the Board of Trustees, the chief of obstetrics and the administrator, for failure to state a claim. Uncertain of the state law and finding the record inadequate, we remanded the case for further findings and certification to the Massachusetts Supreme Judicial Court. After several evidentiary hearings, the district court again dismissed the complaint, this time solely on the ground "that plaintiff's substantive federal claim under 42 U.S.C. § 1983 is without merit", after concluding that the state law could not reasonably be construed to require the hospital to perform this type of operation. Hathaway v. Worcester City Hospital, 341 F.Supp. 1385, 1387 (D.Mass.1972). After a further remand to determine other facts, this appeal is now ripe for adjudication.

The Assistant Solicitor's opinion, on which the hospital's policy is based, was that the legality of sterilization operations was "highly doubtful", in the light of Massachusetts statutes concerning birth control assistance, Mass.Gen.Laws Ann. ch. 272, §§ 19, 20, 21A, and in any event, at least non-therapeutic sterilizations were beyond the hospital's charter authority. Whatever merit his conclusion as to the illegality of such operations may have had at the time, subsequent authority makes it clear that the Commonwealth no longer has, or could have, such an all-encompassing antibirth control policy as he took the cited statutes to describe. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

As to the issue of authority, we conclude that the hospital is neither required nor forbidden to perform such operations. Section 2 of chapter 266 of the Mass.Acts of 1953, which re-enacted and modified the provisions of the earlier law establishing the Worcester City Hospital, ch. 339, Mass.Acts of 1871, states:

"The Worcester City Hospital is established for the reception of persons requiring relief during temporary sickness, including paying patients, and of such persons settled in the City of Worcester who by misfortune or poverty may require such relief."

Section 4 merely provides that the Board of Trustees has the power to make rules and regulations as are deemed expedient and not inconsistent with law. The city ordinance similarly states the hospital's purpose and the power of the Trustees to make rules and regulations. §§ 1, 5, ch. 4, Revised Ordinances of Worcester. The general statute concerning city hospitals, ch. 40 § 5(20), and the specific authorizing statutes for other city hospitals use the identical language in stating the purpose of their establishment.

Neither we nor the parties have found any state interpretation of the key words "relief during temporary sickness" or of the nature of a city hospital's obligations to perform procedures arguably or indisputably covered by that phrase. By stipulation, however, it appears that at the appellee hospital, "the range of surgical problems and services includes, but may not be limited to" appendectomies, varicose veins, pilonidial cystectomies, hemorrhoidectomies, circumcisions, "and other less complicated prophylactic surgical procedures, such as removal of gall stones". In addition, "the Board of Trustees has permitted surgeons who specialize in the field of plastic or cosmetic surgery to perform certain types of procedures, including but not limited to rhinoplasty, known colloquially as plastic nose surgery and skin graphs sic." The Assistant Solicitor concedes that many of these procedures do not fall within the narrow reading of "temporary sickness" which he would apply to sterilizations. We also know through evidence that tubal ligations are regularly performed at both Boston and Cambridge City Hospitals, in the former "almost on demand", both hospitals being subject to the same general authorizing statute.

The differing hospital practices suggest to us the most obvious and reasonable interpretation of the authorizing statutes and ordinance: that the range of services to be provided by the hospital is to be determined by the hospital's board of trustees, limited only by inconsistent provisions of law and the hospital's broad general mandate. Thus, for example, we think it clear that the hospital could not, until recent times, have liberally permitted abortions or prescribed contraceptives. Similarly, it could not restrict itself to the indefinite care of mentally retarded children or bar poor residents of Worcester. Yet, within that broad area, the board may set policies commensurate with its budget, facilities, the ability of its staff, its role as an educational hospital for young interns and residents, the needs of the community, and other similar relevant factors.

Probably the most significant factor dictating such an open-ended definition is the anticipation of change in medical science. Freezing the hospital's services at those common in 1871, as the Assistant Solicitor suggested, or even those common in 1953 would dictate obsolescence. Moreover, whatever the definition of "sickness" may have been in earlier epochs, it now encompasses "a condition or an episode marked by pronounced deviation from the normal healthy state", Borland's Illustrated Medical Dictionary, 24th ed., or "a disordered, weakened, or unsound condition", Webster's New International Dictionary, 3d ed. Removal of tonsils or an appendix highly susceptible to infection or, as the stipulation describing the appellee's services notes, "excisions of...