Walker v. Pierce, s. 75-2212 and 75-2213

• Decision Date: 26 July 1977
• Docket Number: Nos. 75-2212 and 75-2213,s. 75-2212 and 75-2213
• Parties: Virgil WALKER and Shirley Brown, Appellants, v. Clovis H. PIERCE, M.D., et al., etc., Appellees. Virgil WALKER and Shirley Brown, Appellees, v. Clovis H. PIERCE, M.D., Appellant, George A. Poda, M.D., etc., et al., Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 609

560 F.2d 609

Virgil WALKER and Shirley Brown, Appellants, v. Clovis H. PIERCE, M.D., et al., etc., Appellees.

Virgil WALKER and Shirley Brown, Appellees, v. Clovis H. PIERCE, M.D., Appellant, George A. Poda, M.D., etc., et al., Defendants.

Nos. 75-2212 and 75-2213.

United States Court of Appeals Fourth Circuit.

Argued March 17, 1977.

Decided July 26, 1977.

Neil Bradley, Atlanta, Ga. (H. Christopher Coates, Atlanta, Ga., Joseph J. Levin, Montgomery, Ala., Melvin L. Wulf, New York City, Emily Calhoun, Athens, Ga., Carlton Bagby, Columbia, S. C., on brief), for appellants in 75-2212 and for appellees in 75-2213.

Stephen G. Morrison, Columbia, S. C. (R. Bruce Shaw, Wm. S. Davies, Jr., Nelson Mullins, Grier & Scarborough, Columbia, S. C., B. Henderson Johnson, Jr., Williams & Johnson, Aiken, S. C., on brief), Edward E. Poliakoff, Asst. Atty. Gen., W. G. Lynn, Jr., Aiken, S. C. (Daniel R. McLeod, Atty. Gen., C. Tolbert Goolsby, Jr., Deputy Atty. Gen., John L. Choate, Asst. Atty. Gen., Columbia, S. C., on brief), for appellees in 75-2212 and for appellants in 75-2213.

Before BRYAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

Violation of their civil rights ¹ was laid, in this action for damages and declaratory and injunctive relief by Virgil Walker and Shirley Brown, black females, to Clovis H. Pierce, the attending obstetrician at the Aiken County Hospital in South Carolina for sterilizing them, or threatening to do so, solely on account of their race and number of their children, while they were receiving medical assistance under the Medicaid program. ² The other defendants, the Chairman of the Board of Trustees of the Hospital, its Administrator, the Director of the Department of Social Services of Aiken County, the State Commissioner of the Department of Social Services of South Carolina and the Hospital, are charged with conspiring or acting in concert with Dr. Pierce in the unlawful acts imputed to him.

Verdicts, those directed and those returned by the jury, went for the defendants except Pierce, against whom the jury assessed damages of $5.00 in favor of Shirley Brown. Judgments were passed accordingly, including denial of declaratory and injunctive relief. On plaintiffs' appeals we affirm; on the obstetrician's we reverse.

The Complaint

As faultlessly put in the plaintiffs' brief: "The essence of the complaint was that Medicaid recipients were being required to consent to undergo a tubal ligation if they were delivering a third living child."

Centering the controversy is the policy previously announced and constantly pursued in practice by the doctor, testified to by him as follows:

"My policy was with people who were unable to financially support themselves, whether they be on Medicaid or just unable to pay their own bills, if they were having a third child, to request they voluntarily submit to sterilization following the delivery of the third child. If they did not wish this as a condition for my care, then I requested that they seek another physician other than myself."

There is no question of his professional qualifications or experience.

As drawn by the plaintiffs, he is the arch-offender. The accusation is incursion upon their Constitutional rights of privacy, due process of law and equal protection of the law as well as of their statutory privileges against discrimination on account of their race and color, all by subjecting or threatening the plaintiffs as citizens of the United States with involuntary sterilization. These deprivations, they further say, are the result of the effectuation of Pierce's policy under color of State law, that is, under the Medicaid program administered by South Carolina. His codefendants, to repeat, are impleaded for conspiring and acting in concert with him, and for acquiescing in his unlawful conduct. 42 U.S.C. §§ 1981, 1983, 1985(3) and 2000d. Personal injury has been suffered, each plaintiff asserts, as a direct consequence of acts of the defendants under this policy.

Now to follow are the facts as elicited by the plaintiffs from their evidence, but denied by the defendants as inculpations of them.

Plaintiff Walker

Virgil Walker had completed the seventh grade, was separated from her husband and was receiving Aid to Families with Dependent Children ³ and Medicaid benefits. Expecting her fourth child, she first went to Pierce on January 7, 1972. During this consultation, he discussed family planning and his sterilization policy. Walker refused to consent. The issue again came up at the second visit and she again declined. Walker testified that Pierce threatened to have her State assistance terminated unless she cooperated. She called another doctor, but he was not taking new patients.

On February 4, 1972, Spears, a Department of Social Services caseworker assigned to Walker, received a note from Pierce's office asking that he talk with Walker about sterilization. Thereupon, Spears, according to his testimony, spoke with her on February 17th, offering to get her a second doctor. On the other hand, Walker stated that Spears had said there was nothing he could do. Then she returned to Pierce and subsequently signed a consent form for sterilization.

Her fourth child was delivered at the Aiken County Hospital April 16, 1972 by Dr. Billy Burke, an obstetrician who substituted for Pierce on occasion. Burke discussed tubal ligation with Walker. Her response was that she did not want additional children and understood that it would be a permanent sterilization. Two more consent forms were then signed. Pierce performed the operation April 17, 1972. She protested no further because, she said, it would have been futile.

Walker's hospital bills and doctor's fees were paid by Medicaid. Under the South Carolina plan operated by the Department of Social Services, the patient-physician relationship is one of free choice for both parties. The physician, under no contract with the State, simply submits his bill when treatment is concluded to the Medicaid insurance carrier instead of the patient.

Plaintiff Brown

Shirley Brown consulted Pierce regarding her third pregnancy. She, too, was separated from her husband and had taken job maternity leave from Seminole Mills. On her initial visit, Brown paid Pierce $50.00. Sterilization was not discussed. A $250.00 balance due on his fee was satisfied in part by Brown and her husband and partially by the health insurance plan at the mill.

At the end of August 1973, Brown qualified for Medicaid benefits. She was delivered of her third child at the Hospital September 2, 1973 by a doctor other than Pierce. The hospital bills, not Pierce's fees, were to be paid by Medicaid. After the delivery, Pierce requested his nurse to obtain Brown's consent to sterilization. Brown refused. Upon word of her refusal, Pierce saw no necessity for further hospitalization and ordered her discharge and release from the Hospital.

Her mother intervened, offering to pay the hospital bill, but Brown left September 3, 1973, "afraid something might happen to her." Protest was made to the defendant Nesbit, Hospital Administrator, who suggested she file a complaint with the Board of Trustees since he had no control over a doctor's discharge of patients. At trial, Brown's attorney conceded that she sustained no actual damages in leaving the Hospital.

The Defendants

Defendant Nesbit stated that he first learned of Pierce's policy in July, 1973 from newspaper accounts appearing in the local papers. He reported it to the Chief of Obstetrics and Gynecology at the Hospital but at that time he received no answer as to anything he should do.

Defendant Poore, Director of the Aiken County Department of Social Services since March 23, 1972, testified that he also originally learned of Pierce's policy from press items on July 17, 1973. He called a staff meeting and arranged for a doctor in Augusta, Georgia to see obstetric patients. Transportation for them was provided by the Department.

Defendant Ellis, State Commissioner of DSS, became aware of the sterilization policy through July, 1973 news accounts. He fixed a meeting for July 26 between Pierce, a Medicaid deputy and a State attorney general. An investigation included a review of records of Pierce's patients and interviews with Medicaid recipients sterilized at the Hospital in the first six months of 1973. ⁴ Early September, Ellis and a State attorney general met with Pierce and his attorney. Ellis asked Pierce to sign an affidavit stating that he would not discriminate against Medicaid patients. Pierce declined. Finally Ellis wrote Pierce September 27, 1973 that his continued refusal to sign the affidavit forced the Department to impose a non-payment sanction for Pierce's submitted Medicaid bills. Pierce no longer treated Medicaid patients. From January 1, 1972 to June 30, 1973 the doctor had received $60,000 in Medicaid fees.

The Verdicts and Judgments

The claims against Poda, Chairman of the Board of the Hospital, were withdrawn. In the Walker action under section 1981 verdicts were directed for all of the defendants except Dr. Pierce, Nesbit individually and as Administrator of the Hospital and the Hospital itself, but the jury returned a verdict for the latter defendants; in the Walker action under section 1983, verdicts were directed for all defendants except Dr. Pierce and Nesbit, but the verdict acquitted these two. In Brown's action under section 1981, directed verdicts were granted for all defendants except Pierce, Poore and the Hospital, but the jury found for them. In Brown's action under section 1983, verdicts were instructed for all defendants except Dr. Pierce and Poore. However, the jury found for Poore but against Dr. Pierce assessing damages at $5.00 "Nominal Damages".

As weighed by the Court, the evidence was not sufficient to permit a finding of a conspiracy under section 1985(3), and, therefore, the case was not...